R v Mark William Standen

[2010] NSWSC 1157

CITATION:	R v Mark William Standen [2010] NSWSC 1157
HEARING DATE(S):	12 August 2010, 19 August 2010, 26 August 2010
JUDGMENT DATE :	1 September 2010
JUDGMENT OF:	James J at 1
DECISION:	Bail is refused on all charges
LEGISLATION CITED:	Commonwealth Criminal Code - ss 11.5, 307.11 Drug Misuse and Trafficking Act NSW - ss 25(2), 33(3) Commonwealth Crimes Act - s 42 Bail Act - s 22A(1)
CATEGORY:	Principal judgment
CASES CITED:	The Queen v LK; The Queen v RK (2010) 202 A Crim R 522 Ansari v The Queen (2010) 202 A Crim R 505 R v Kissner (Hunt CJ at CL, 17 January 1992) Director of Public Prosecutions (Cth) v Germakian (2006) 166 A Crim R 201 R v Masters (1992) 26 NSWLR 450
PARTIES:	Regina Mark William Standen
FILE NUMBER(S):	SC 2009/8922
COUNSEL:	T Game SC, H Dhanji SC (Crown) M Ierace SC (Accused)
SOLICITORS:	Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused)
LOWER COURT DATE OF DECISION:	1 September 2010

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JAMES J
WEDNESDAY 1 SEPTEMBER 2010
2009/8922 REGINA v Mark William STANDEN

Judgment

1 HIS HONOUR: Mark William Standen applied for bail on three charges brought against him by the Commonwealth Director of Public Prosecutions. The application for bail was opposed by the Crown. Evidence on the application was adduced on 12 August and 19 August and submissions were made on 26 August. On 26 August I reserved my decision on the application.

2 On 23 October 2009 the applicant and an alleged co-offender Bakhos Jalalaty were indicted on the three charges for which a grant of bail is sought by the applicant, namely:

“1. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to import a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug the substance being a border controlled precursor, namely pseudoephedrine, and the quantity being a commercial quantity.

2. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to supply an amount of a prohibited drug, to wit 300kgs of pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

3. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to pervert the course of justice in relation to the judicial power of the Commonwealth, by agreeing that Mark Standen would use his knowledge and information obtained by him in order to avoid proceedings being instituted or successfully prosecuted with respect to an offence of importing a substance in contravention of Commonwealth law.”

3 When indicted on 23 October 2009 each of the applicant and Bakhos Jalalaty pleaded not guilty to all three charges.

4 As I will describe in more detail later in this judgment, Bakhos Jalalaty subsequently pleaded guilty to the first charge and the Crown accepted the plea of guilty to the first charge in full discharge of the charges against Jalalaty. The applicant has maintained his pleas of not guilty to all three charges.

5 The first charge is a charge under s 11.5 and s 307.11 of the Commonwealth Criminal Code. The maximum penalty is imprisonment for twenty-five years or a fine of 5,000 penalty units or both.

6 The second charge is a charge under s 26 and s 25(2) of the Drug Misuse and Trafficking Act New South Wales. By virtue of s 33(3) of that Act the maximum penalty is imprisonment for life and/or a fine of 5,000 penalty units.

7 The third charge is a charge under s 42 of the Commonwealth Crimes Act. The maximum penalty is imprisonment for five years.

8 The present application is not the first application for bail on these charges which has been made by the applicant to this court. On 16 and 17 December 2009 I heard a previous application and on 17 December 2009 I delivered a judgment refusing the application for bail. This present judgment is to be read with the judgment of 17 December 2009.

9 Section 22A(1) of the Bail Act provides that a court is to refuse to entertain an application for bail by a person accused of an offence if an application by that person for bail has already been made and dealt with by the court, unless inter alia circumstances relevant to the grant of bail have changed since the previous application was made. It was not disputed by the Crown, and I find, that circumstances relevant to the grant of bail have changed since the previous application was made and dealt with.

10 In my judgment of 17 December 2009, I stated that the trial of the charges was to be deferred until a time when it was likely that the High Court would have delivered judgments on two appeals dealing with offences of conspiracy on which the High Court was then reserved and that it was anticipated that a trial of the applicant and Jalalaty could commence in about May this year. Judgments in the two High Court cases The Queen v LK; The Queen v RK and Ansari v The Queen were handed down by the High Court on 26 May 2010.

11 However, in the meantime the applicant’s alleged co-offender Jalalaty had indicated that he was prepared to change his plea. On 17 May 2010 Jalalaty pleaded guilty to a charge closely corresponding to the first charge against the applicant and the Crown accepted the plea of guilty in full discharge of the charges against Jalalaty.

12 A consequence of Jalalaty’s change of plea was that the commencement of a trial of the applicant had to be deferred. It was contemplated that the Crown would take a comprehensive statement from Jalalaty, a decision would be made by the Crown as to whether the Crown would call Jalalaty as a witness at the applicant’s trial and, in the event of the Crown deciding to call Jalalaty as a witness, Jalalaty would have to be sentenced for the offence to which he had pleaded guilty and a Basha inquiry for Jalalaty would have to be held. All of those things would have to occur before any trial of the applicant could commence.

13 In the event, what happened was that Jalalaty declined to make any statement to the Australian Federal Police, Jalalaty made a statement to the New South Wales Crime Commission and the Crown made a decision that it would not call Jalalaty as a witness at the applicant’s trial. These developments had the consequence of further delaying the commencement of the applicant’s trial. I have now fixed the applicant’s trial to commence on 2 February 2011.

14 The matters I have referred to clearly amount to a change of circumstances since the previous application for bail was made and dealt with.

Evidence on the application

15 On the present application I regard the evidence adduced on the previous application as being before me. Some of this evidence has, of course, been superseded.

16 The additional evidence on the present application included:-

A folder of documents tendered by the Crown which included a slightly amended statement of what are alleged by the Crown to have been the facts of the offences, the transcripts of certain conversations between the applicant and Jalalaty, an affidavit by Mr Darryl Gover, a correctional services officer, about the conditions of custody to which the applicant is subject, statements by Mr John Giorgiutti, the solicitor to, and director of, the New South Wales Crime Commission, the transcript of the hearing of the previous application and my judgment of 17 December 2009. Both Mr Gover and Mr Giorgiutti were cross-examined by counsel for the applicant.

For the applicant

17 Oral evidence was given by Mr Tulloch, a psychologist within the Department of Correctional Services and by members of the applicant’s family, being Matthew Standen, a son of the applicant; Glen Standen, a brother of the applicant; Glen Standen’s wife, Mrs Audrey Standen; and Glen Standen’s adult daughter, Sarah Standen.

18 I have taken into account all of the evidence on the present application and all of the evidence on the previous application but I propose in this judgment to examine in some detail only the evidence of Mr Tulloch and the evidence of members of the applicant’s family. Considerable reliance was placed on this evidence by counsel for the applicant in his written and oral submissions.

Mr Tulloch’s evidence

19 Mr Tulloch is a psychologist within the Department of Correctional Services.

20 Mr Tulloch gave evidence on the previous application in December 2009. He had then seen the applicant 33 times during the applicant’s imprisonment, that is since his arrest on 2 June 2008. Since December 2009 Mr Tulloch had seen the applicant another 16 times for an average of 40 to 50 minutes at each session. Mr Tulloch was on leave between 26 April and 27 May and again between 26 June and 9 August and consequently did not see the applicant between those dates. While Mr Tulloch was on leave there was no replacement psychologist.

21 Mr Tulloch gave the following assessment of the applicant:-

“In general Mark has presented as mildly depressed. On occasions moderately and severely anxious. But the periods of anxiety are generally only brief. They maybe persist for a week, usually relate to particular stressors or difficulties that he is facing and the anxiety in his case is exacerbated because of his underlying depressive illness”.

22 Mr Tulloch added:-

“I think overall Mr Standen’s general mood and psychological functioning has stabilised somewhat, since December last year. I have seen a slight improvement”.

23 On six occasions, which Mr Tulloch later in his evidence amended to eight occasions, the applicant reported to Mr Tulloch symptoms of anxiety and panic, related often to the welfare of the applicant’s daughter or to frustration with the legal process experienced by the applicant or difficulty in gaining telephone access to loved ones. In further evidence Mr Tulloch added as stressors, the death of the applicant’s father in March 2010 and that the applicant had not been able to telephone his eldest daughter on the occasion of her wedding or to attend the wedding.

24 The daughter for whose welfare the applicant was concerned is eight years old. Other evidence on the application established that the child’s mother has suffered from mental health problems. The child was living with a sister of her mother at Picton but is now in the care of foster parents.

25 Mr Tulloch gave further evidence:-

“I do believe that the circumstances of his incarceration put him at risk of psychological illness. I would say that, for almost any person going to prison, it puts them at risk of mental illness. I believe that risk is heightened if they are housed in what’s commonly known as super max conditions or super maximum conditions that generally involve a degree of segregation and isolation from other inmates for their own safety, that there are certain risks that are associated with those types of conditions that mean the person is, I believe, at a high risk of becoming mentally ill”.

26 Mr Tulloch gave evidence that the conditions of the applicant’s custody would qualify as “super maximum conditions”.

27 Mr Tulloch was of the opinion that the applicant’s conditions of custody were likely to exacerbate his depression.

28 If the applicant was released on bail, Mr Tulloch would recommend that he be seen by a psychiatrist and that he undergo counselling and treatment by a psychologist. In Mr Tulloch’s opinion, the applicant should be seen by a psychiatrist every two to three months for the purpose of monitoring the anti-depressant medication being taken by the applicant. The applicant was last seen by a prison psychiatrist in February this year.

29 Mr Tulloch said that the applicant had never presented as being at risk of suicide or self-harm.

30 Mr Tulloch said that, while the conditions of the applicant’s custody were potentially harmful to his mental health, they also operated to sedate him. If the applicant was released on bail, he would be required to confront a number of readjustment issues. Mr Tulloch said “Many of his challenges in terms of recovering from his illness would really only commence in earnest, if he is released”. In cross-examination Mr Tulloch said that, if the applicant was granted bail, “I believe it is possible that his mental health may go backwards”.

31 In March of this year the applicant had become a sweeper in his wing of the correctional centre. The applicant told Mr Tulloch that the opportunity to get out of his cell and engage in a few activities had assisted his general mood and physical wellbeing.

32 Mr Tulloch said that the applicant’s anxiety could be greater, if he was held in the general prison population, because, by reason of his career in law enforcement, he would be fearing for his life on a daily basis.

33 Mr Tulloch agreed that a number of factors, such as the applicant having lost his job and his relationship and his having been charged with serious offences, would be likely to have contributed to the applicant’s state of depression.

The evidence of members of the Standen family

34 Mr Glen Standen, his wife Mrs Audrey Standen and their daughter Sarah Standen gave evidence that, if the applicant was granted bail, he could live with them in their house at Noraville on the Central Coast.

35 At the time of the previous application it was proposed that, if bail was granted, the applicant would live at the Standen family home in Burwood. However, in March 2010 the applicant’s father died and it is no longer proposed that, if granted bail, the applicant would live at Burwood.

36 If granted bail, the applicant would use a bedroom in the house at Noraville. There is a deadlock on the front door to the house and a grille on the window in the bedroom the applicant would occupy. If required, a deadlock could be placed on the back door of the house.

37 There is a computer in the house. A password for the computer could be initiated and not disclosed to the applicant.

38 There is a landline telephone in the house. It could be a condition of bail that the applicant not initiate any telephone conversation. The house is not a large house and, if the applicant initiated a telephone conversation, it would be heard by anyone else in the house.

39 At least one of the three adult members of the family would be in the house with the applicant at all times the applicant was in the house. One of the three of them would drive the applicant so that he could attend appointments with a psychiatrist or psychologist. Mr Glen Standen would drive the applicant to conferences at his solicitor’s office in Sydney. If some emergency arose, the applicant would be driven to and left at the police station at Toukley, which is a 24 hour station. If the applicant committed a breach of any bail condition, the breach of the bail condition would be immediately reported.

40 Mr Glen Standen has a full time job at a hotel in Sydney. He works two kinds of shifts, from 7 o’clock in the morning to 3 o’clock in the afternoon and from 3 o’clock in the afternoon to 11 o’clock at night. He drives to and from work and has to leave home about two hours before a shift starts and arrives home about two hours after a shift ends.

41 Mrs Standen works part time two, three or four days a week as a retail assistant. On days that she works she is away from the house between half past eight or half past nine in the morning to half past two or half past three in the afternoon.

42 Sarah Standen does not work. She takes her three year old child to a day care centre four days a week and returns home after delivering the child to the day care centre. She is, understandably, much occupied with her young child.

The submissions of the parties
The applicant

43 It was accepted by counsel for the applicant that two of the offences charged were offences to which s 8A of the Bail Act applies, that bail could not be granted for those offences unless I was satisfied that bail should not be refused and that the principles stated in R v Kissner and Director of Public Prosecutions (Cth) v Germakian were applicable.

44 A submission was made that the onus under s 8A of the Bail Act is a lesser onus than the onus under s 9C of the Act. I do not consider that it is necessary for me to rule on this submission in order to determine the present application. I will simply apply the principles which have been laid down in cases dealing with s 8A.

45 The principal submissions made by counsel for the applicant in support of the contention that bail should not be refused were based on:-

1. The period that the applicant has already spent in custody and the further period he will have to spend in custody, if bail is refused.

2. The onerousness of the applicant’s conditions of custody.

3. The applicant’s mental health.

4. The need for the applicant to be at liberty for various purposes.

5. The ability to devise conditions of bail which would ensure the applicant’s attendance at a trial.

46 I will elaborate on counsel’s submissions on each of these matters.

1. The period in custody

47 The applicant has been in custody since his arrest on 2 June 2008. Accordingly, he has already spent about two years three months in custody.

48 A trial date has now been fixed for 2 February 2011. Even if the trial does commence on that date, the applicant will have spent another 5 months in custody. The trial itself is now estimated to last three months.

49 None of the delay which has occurred has been the fault of the applicant.

2. The onerousness of the applicant’s conditions of custody

50 Ultimately, after cross-examination of Mr Gover by counsel for the applicant, there was little dispute about the applicant’s conditions of custody.

51 For his own protection, the applicant is isolated from other inmates. Between March 2009 and January 2010 the applicant shared a small yard and a small kitchen with another prisoner but since January 2010 he has had no contact with other prisoners. The applicant told Mr Tulloch that, although the other prisoner had been difficult to share with and could be demanding and irritating, the applicant had experienced a sense of loss when the other prisoner was moved to another part of the correctional system.

52 The applicant occupies a small cell. When not locked in his cell he can use a small exercise yard and small kitchen. The cell is only about five paces by three paces. If one stands in the kitchen area with extended arms, it is possible to touch the opposite walls of the kitchen.

53 Up until the last few days the applicant’s cell has been unlocked, thus enabling him to use the yard and the kitchen, only between the hours of about 7.30 in the morning and about 2.30 in the afternoon on week days and between about 7.30 in the morning and about five o’clock in the afternoon on weekends. Even within these periods, the applicant has frequently been kept locked in his cell. Very recently, the hours during which the applicant’s cell is unlocked during the week have been extended but in practice this has not consistently happened.

54 All of the applicant’s meals are provided within a few hours, breakfast being provided between 7 and 7.30 in the morning, lunch at about 10.30 and dinner at about 2.30.

55 As I have previously noted, although the applicant has been seen fairly regularly by Mr Tulloch, there was no relieving psychologist while Mr Tulloch was on leave. The applicant has not been seen by a psychiatrist since February. The applicant has been visited only occasionally by correctional services educational officers or a correctional services welfare officer.

56 The applicant has had limited visits and limited use of a telephone.

3. The applicant’s mental health

57 I have already summarised the evidence of Mr Tulloch, including in my summary almost all of the parts of his evidence which were relied on in counsel’s submissions.

58 It was submitted that the applicant suffers from depression and anxiety, that his anxiety is related to particular stressors, that his continuing imprisonment exacerbates his mental conditions, that he is at risk of more serious mental harm if he remains in prison and that while in prison he has not received all of the psychiatric and psychological treatment he should have received.

59 It was submitted that the applicant’s functions as a sweeper in his wing of the correctional centre are quite limited and bring him into only slight contact with correctional services officers and no contact with fellow prisoners.

60 It was submitted that it would be wrong to regard, as a reason for refusing bail, evidence by Mr Tulloch that, if bail was granted, the applicant would be subjected to stresses which might temporarily aggravate his mental conditions, when it was his incarceration which had caused, or contributed to causing, those mental conditions.

4. Need to be at liberty for various purposes

61 The material in the Crown brief is voluminous. In prison and in his mental state it is difficult for the applicant to apply himself to a proper consideration of this material.

62 It is likely that the applicant will have to give evidence at his trial so as to put before the jury his explanation of the many recorded and intercepted conversations between himself and Jalalaty. If the applicant remains in prison and his depression continues, it is likely that he will give his evidence with a flat affect or demeanour, which could undermine his credibility in the eyes of the jury. The applicant would not be able to explain his demeanour, without disclosing to the jury that he had been in custody and what had been the conditions of his custody.

63 The applicant has been able to have conferences with his legal advisers by means of an audio-visual link at the correctional centre but conferences have to be terminated if the audio-visual link is required for court proceedings involving inmates at that correctional centre. The applicant would be better able to prepare for his trial, if he was at liberty on bail.

64 If the applicant was on bail, he would have greater access to his 8-year old daughter for whose welfare he is concerned.

65 If the applicant was on bail he could be visited more often by his older daughters, who work at weekends and find it difficult to visit their father at weekends, visits to prisoners being confined to weekends and public holidays.

5. Bail conditions which would ensure attendance

66 Counsel referred to the evidence of members of the Standen family and submitted, on the basis of this evidence, that conditions of bail could be fashioned which would ensure the applicant’s attendance at a trial. Counsel also referred to evidence given on the previous application about the security which could be provided by sureties, that security still being available.

The Crown

67 The principal submissions made on behalf of the Crown can be briefly summarised as follows.

68 It was submitted that, as on the previous application, no attempt had been made on behalf of the applicant to show that the Crown case against the applicant was not a strong one, that the applicant remained an unacceptable flight risk and that for these reasons the presumption against bail under s 8A of the Bail Act had not been displaced.

69 It was submitted that evidence on this application, including recorded conversations between the applicant and Jalalaty, demonstrated that the applicant was capable of duplicity.

70 The delay in bringing the applicant to trial was regrettable. However, the delay was not the fault of the Crown. Delay is almost an inevitable incident of complex drugs trials. A trial date has been fixed and the trial is likely to proceed on that date.

71 It was submitted that although the applicant suffers from depression, it is only at a mild level and his condition has stabilised and, indeed, improved since the previous bail application.

72 In preparing for his trial the applicant has had the benefit, of which he has availed himself a number of times, of access to an audio-visual link for conferences with his legal advisers.

73 Having regard to the stringent bail conditions proposed on behalf of the applicant, the applicant’s capacity to play any significant role with respect to his 8-year old daughter would be severely constrained even if he was granted bail.

74 It was submitted that the proposed living arrangements were incapable of preventing or even providing a major obstacle to the applicant absconding, if he was so minded. The house at Noraville could not be converted into a gaol. For significant periods both the applicant’s brother and the applicant’s sister-in-law would be absent from the house.

75 The Crown submitted that the applicant remains a person who, by reason of his background, is well placed to take steps to arrange flight.

Decision

76 The applicant has been charged with three offences, to two of which s 8A of the Bail Act applies. Consequently, the applicant is not to be granted bail for these offences unless he satisfies me that bail should not be refused.

77 In my previous judgment I referred to the principles applying to an application for bail for an offence to which s 8A applies, which have been stated in such cases as R v Kissner, R v Masters and Director of Public Prosecutions (Cth) v Germakian. A very high onus is placed on an applicant for bail. The application should ordinarily be refused. The principal consideration is the strength of the Crown case and less weight should be placed on circumstances which are common to all, or most, bail applications. It was held in Gemakian that the onus is on the applicant to positively establish that he has no capacity to abscond.

78 In my previous judgment I remarked that no attempt had been made on the hearing of that application to show that the Crown case against the applicant is not a strong one. Likewise, on the present application no attempt has been made to show that the Crown case is not a strong one.

79 Counsel for the applicant said in his submissions that no attempt had been made to show that the Crown case was not a strong one, because, if any such attempt were made on a bail application, the bail application would be converted into a virtual trial of the charges. That may be so, but I consider that it remains the position that, no attempt having been made to show that the Crown case is not a strong one, I am required to proceed on the basis that it has not been shown that the Crown case on all three charges is not a strong one.

80 As I noted in my previous judgment, the Crown case against the applicant includes a large number of recorded conversations between the applicant and Jalalaty. These conversations were conducted in English and were recorded by means of telephone intercepts or listening devices and are clearly susceptible of an interpretation that the parties were not discussing, as was suggested by the applicant when he was interviewed by police, merely an innocent importation of rice.

81 Events happening since the previous application was made and determined and in particular the change of plea by the alleged co-offender Jalalaty and the making by Jalalaty to the Crime Commission of a long statement purporting to incriminate himself and the applicant, have not weakened the Crown case.

82 The Crown has informed me that it will not be calling Jalalaty as a witness in the Crown case at the trial of the applicant. Having regard to Jalalaty’s change of plea and the contents of his statement, it seems to me highly improbable that the applicant’s legal advisers will ask the Crown to call Jalalaty for cross-examination on behalf of the applicant or that Jalalaty will be called as a witness in the applicant’s defence case.

83 In these circumstances, it seems to me that the Crown case is, if anything, stronger than it was at the time of the previous application. The alleged co-offender Jalalaty is no longer available as a possible source of support for a defence case for the applicant.

84 As I have already noted, the maximum penalty of imprisonment for the offence charged in the first count is imprisonment for 25 years and the maximum penalty of imprisonment for the offence charged in the second count is imprisonment for life.

85 Not only are the offences which it is alleged the applicant committed offences of a serious type, it is alleged by the Crown that they are particularly serious examples of those types of offences. As regards to the offence charged in the second count, the quantity of pseudoephedrine which it is alleged the applicant conspired to supply was 300 kilograms, which is sixty times the large commercial quantity set for the drug.

86 If convicted of the offences charged, it is likely that the applicant will be sentenced to terms of imprisonment which will last the rest or most of the rest of his life. It is likely that any terms of imprisonment will be served in similar conditions of custody to those to which he is now subject.

87 Mr Tulloch gave evidence that the applicant has expressed to Mr Tulloch optimism about the result of his trial and an expectation that he will be acquitted. However, I do not accept that the risk of being convicted and sentenced to long terms of imprisonment has not occurred to the applicant, who served for more than 30 years as an officer in law enforcement agencies and who participated in the detection and successful prosecution of many offenders.

88 I conclude that the applicant, if released on bail, would have a very strong incentive to abscond.

89 In my previous judgment I made a finding that the applicant, with his background of 30 years in law enforcement and his criminal contacts, would be uniquely well placed to arrange flight. I accept that, the applicant having spent more than two years in custody and some of his alleged co-conspirators having been arrested, the capacity of the applicant to arrange flight may have been reduced. However, I do not consider that it has been shown that the applicant does not have the capacity to arrange flight.

90 The Crown submitted, and I accept, that evidence produced by the Crown on this application, including evidence of the applicant’s communications with Jalalaty, if accepted, would demonstrate a considerable capacity for duplicity on the part of the applicant, reducing confidence that he would abide by any bail conditions.

91 I turn now to the principal submissions made on behalf of the applicant, which I summarised earlier in this judgment.

The period in custody

92 Delay which has already occurred in bringing the applicant to trial and the further delay which will occur before any trial is concluded is regrettable and troubling. I am keenly conscious that it has sometimes been said that it would be unconscionable to refuse bail to an applicant who has been kept in custody for two years or more, awaiting his trial.

93 Delays which have occurred in the present matter are not the fault of the applicant but nor are they the fault of the Crown. As the Crown submitted, some delay is almost inevitable in complex drug trials.

94 A trial date has now been fixed, which is about five months ahead. I have indicated to the parties that the trial must proceed on that date and I am satisfied that both the Crown and the applicant are anxious that the trial should commence on that date. There is no apparent reason why the trial cannot commence on that date.

The onerousness of the applicant’s conditions of custody

95 I accept that the applicant’s conditions of custody are onerous.

96 The onerousness of the conditions is not gratuitous. If the applicant was housed with the general prison population, he would be in fear of his life. Any exposure to other inmates would involve a risk of harm to the applicant.

97 As I have already noted, the onerousness of the applicant’s conditions of custody and the likely similar onerousness of the applicant’s conditions of custody if he is convicted and sentenced, provide an incentive for flight.

98 Between March 2009 and January 2010 the applicant did share a yard and a kitchen with another inmate and, if another suitable inmate can be found, this arrangement will be repeated.

99 The period on weekdays during which the applicant is not locked in his cell has recently been increased, although in practice this increase has not always occurred.

The applicant’s mental health

100 I accept that the applicant suffers from depression and episodes of anxiety, that his continuing imprisonment is one of the causes of his depression and is likely to exacerbate his depression and that while in prison he was not seen by a psychologist while Mr Tulloch was on leave and he has not been seen by a psychiatrist since February this year.

101 According to Mr Tulloch’s evidence, the applicant’s depression is only mild and his anxiety occurs only on occasions, is related to particular stressors and is generally only brief. Mr Tulloch considers that the applicant’s psychological functioning has stabilised and, indeed, slightly improved since December 2009.

102 I consider that there are causes contributing to the applicant’s depression, apart from his imprisonment and the conditions of his custody, such as the bringing of the criminal charges against him and the loss of his career.

103 If the applicant is granted bail, he is likely to be subjected to stresses to which he is not subject while in prison, which might temporarily worsen his psychological state and functioning.

Need to be at liberty for various purposes

104 I accept that the applicant might be better able to prepare for his trial, if he was at liberty on bail. I note, however, that if he was granted bail on the proposed conditions, he would be living on the Central Coast, would have to travel to Sydney for conferences with his legal advisers and would be dependent on his brother for transport to and from those conferences. The applicant has been able, and if he remains in custody will continue to be able, to use the audiovisual link at the correctional centre for conferences with his legal advisers.

105 The applicant is a very experienced witness and I consider it likely that, notwithstanding any lack of animation he currently presents, he will, if he gives evidence at his trial and particularly under the stimulus of being in court and giving evidence, give his evidence competently.

106 I accept that the applicant is concerned about his eight year old daughter. However, I accept the Crown’s submission that, having regard to the stringent bail conditions proposed, the applicant’s capacity to play any significant role in the care of his daughter would be severely constrained, even if he was granted bail.

Bail conditions which would ensure attendance at trial

107 The bail conditions proposed include conditions designed to prevent the applicant from absconding from the house at Noraville. However, it is not possible to convert the house at Noraville into a gaol and it is not possible by means of bail conditions to ensure that the applicant does not gain access to some means of communication, like a mobile telephone.

108 For a number of hours on each of a number of days each week both the applicant’s brother and the applicant’s sister-in-law will be absent from the house at Noraville. The applicant’s niece has the care of a young child and that young child is likely to be her primary concern.

109 The proposed conditions of bail contemplate that the applicant will be travelling to and from conferences with legal advisers and appointments with a psychologist and a psychiatrist and there is a risk that he will have opportunity for absconding on these occasions.

Conclusion

110 The conclusion I have reached is that I should refuse bail on all charges.

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