R v Mawad

[2015] NSWSC 1237

Supreme Court

New South Wales

Medium Neutral Citation:	R v Mawad [2015] NSWSC 1237
Hearing dates:	23 July 2015
Date of orders:	23 July 2015
Decision date:	23 July 2015
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Bail granted.
Catchwords:	CRIMINAL LAW – BAIL APPLICATION – show cause – combination of circumstances – young children with disabilities – lengthy remand period – bail concerns alleviated by onerous bail conditions – unacceptable risk – bail granted
Legislation Cited:	Bail Act 1978 (NSW) Bail Act 2013 (NSW) Bail Amendment Act 2014 (NSW)
Cases Cited:	R v Tikomaimaleya [2015] NSWCA 83 R v Young [2006] NSWSC 1499
Category:	Principal judgment
Parties:	Tony Mawad - Applicant Regina – Respondent Crown
Representation:	Solicitors: Bannisters Lawyers - Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2015/131629
Publication restriction:	Nil

ex tempore Judgment

1. Tony Mawad applies for bail and makes a release application under the provisions of the Bail Act 2013 (NSW) (“the Act”). Because of the amendments to the Act in 2014 and the nature of the charges that he faces, he is required by s 16A to show cause why his detention is not justified.

2. I have been taken to a variety of cases by his solicitor which discuss the meaning and content of the show cause requirement and I accept the submission that is made in general terms that each case would be determined on its own merits and that it is possible for a combination of circumstances working together to amount to material that would satisfy the show cause requirement: cf R v Young [2006] NSWSC 1499 at [20] per Johnson J (dealing with “exceptional circumstances” under the Bail Act 1978 (NSW)).

3. If the show cause requirement is satisfied that is not the end of the matter. The Act then requires the court or bail authority to consider whether or not there are bail concerns arising from the particular facts and circumstances pertaining to the applicant. If there are such concerns by reference to the exhaustive list of factors in s 18, the bail authority must determine whether those concerns amount to unacceptable risks for the purpose of s 19. If there are unacceptable risks then bail must be refused: s 19(1).

4. It has been held that factors which might operate under s 18 in that latter determination might also be relevant to the question of whether or not the show cause requirement has been satisfied, but it is a separate and distinct test and it must be, according to the chart which is contained in the Bail Amendment Act2014 (NSW), the question to be considered first: R v Tikomaimaleya [2015] NSWCA 83.

5. The facts and circumstances of the present offence are contained in the Crown case statement which is attached to the court attendance notices. The offences are by their nature extremely serious and involve a reasonably well organised and executed robbery on the commercial premises of Masters Home Improvement at Chullora.

6. I note that the form of court attendance notice as they are before me may suffer from some technical difficulty in that the suggestion is that the business was robbed, whereas ordinarily the victim of a robbery would be a person. However, the Crown case statement makes it clear that the particular charges relate to two people, Adam Krahe and Nitasha Rana, each of whom were employees of Masters Home Improvement.

7. On 22 April 2014 a group of men including, unquestionably, a man called [REDACTED] and, allegedly, the applicant and a man Torik Jamal entered those premises and robbed the above-mentioned victims by threatening them with a handgun which they believed to be a real gun and which looked like a black revolver style firearm. It may be that it was not a real gun but in any event the psychological and legal impact of its use was such that it is an offence in which a firearm was used for the purposes of s 16B of the Bail Act.

8. The robbers stole an amount in excess of $40,000 before making their escape. I said in that brief summary of the facts that the man [REDACTED] was unquestionably involved and I say that because since the commission of the robbery he has been interviewed by police and ultimately provided full admissions as to his role. He went on to nominate the applicant and the man Jamal as his co-offenders.

9. There was an investigation into the matter, included in that investigation were some covert recordings made of communications between, relevantly the applicant and [REDACTED], and those communications contained comments which are at the very least suspicious and possibly amount to admissions made by the present applicant for bail.

10. Further, the investigating police executed a search warrant on 1 October 2014 at the applicant’s home and in the course of that located a firearm, which was a 6 mm airsoft calibre KWC manufactured repeating air pistol.

11. That is an air gun which is caught by the extended definition of firearm in the Firearms Act. It was designed to propel a 6 mm airsoft plastic projectile but it was not in working order.

12. As a result of the finding of that item, the applicant was charged with an offence of possession of an unauthorised firearm. That offence by itself is an offence which carries generally a significant gaol sentence if conviction flows, as of course do the very serious allegations of robbery.

13. The applicant is represented on the bail application by Ms Bannister and she puts to me a combination of circumstances which are said to show cause why his detention is not justified. That is, as I have already foreshadowed, a combination of circumstances, including the expected delay in the case coming on for trial. At this stage the case is listed for a committal hearing in August of this year in which the now Crown witness [REDACTED] will be cross-examined.

14. Even allowing for the possibility that that process will take place and conclude on 13 August and the applicant is then committed for trial, there is a likelihood that he will have been in custody for a period in excess of a year and possibly up to 18 months before the case comes on for trial. That is the first factor.

15. As unacceptable as that is, by itself it would not in my assessment amount to satisfaction of the show cause requirement given the serious nature of the offence, the apparent strength of the Crown case and the almost inevitable result of a conviction for the various offences.

16. However, the real force of Ms Bannister’s submission is that the applicant relies on a letter from his wife which sets forth their life together and, in particular, the fact that they have two children aged respectively five years and just short of two years, each of whom suffers from a disability. One has a hearing impairment and the other one appears to, although the diagnosis is not certain, to suffer from an autism spectrum disorder of some kind.

17. Both of the children are finding the separation from their father to be devastating and there are also difficulties for the family in accessing or funding medical and counselling resources as a result of the fact that the income of the family was almost entirely dependent upon the applicant’s work and business as a glazier. I am told, and I accept from Ms Bannister, that that business is currently able to be resurrected if the applicant receives bail but that that situation may not last very long into the future.

18. I accept the Crown’s submission that it is not a matter of granting bail because of sympathy. However, the circumstances of the children, in combination with other factors to which I will presently return, satisfies me on balance that the applicant has shown cause why his continued detention is not justified.

19. As I have said, that is not the end of the matter because it is necessary to assess whether there are bail concerns and, if so, whether there are unacceptable risks in the grant of bail.

20. I accept the prosecutor’s submission that there is at least a risk of non-attendance and also a risk of the commission of serious offences and with that a risk of danger to the community and individuals within it.

21. Less likely I think, given what I have read, is that there is particular risk to the victims or a risk of interference with the witnesses, although the man [REDACTED] is probably known to the applicant and may be perhaps subject to some form of risk. So I am prepared to take it into account as a bail concern.

22. I am then required (and do) consider the exhaustive list of factors in s 18. I will not go through each of them in terms because many of them have already been considered. It need hardly be said that the offence is extremely serious: s 18(1)(b). The Crown case is conceded to be one of some strength [18(1)(c)] and I accept that concession. While certain weaknesses in it have been pointed out but it does remain on its face a reasonably strong case.

23. The applicant does not have a history of violence [ s 18(1)(d)] other than an assault occasioning actual bodily harm offence, which was dealt with in the Children’s Court many years ago, and I do not take that into account other than noting its existence

24. He does appear on the facts to have some criminal associations and I take that into account: s 18(1)(g). He is likely to spend a very long time in custody if bail is not granted: s 18(1)(h). There is a high likelihood of a custodial sentence if he is convicted: s 18(1)(i). While there is some history of non-compliance with bail acknowledgements [s 18(1)(f)], it is far from the worst example of such a consideration that I have seen sitting in the Bail Court.

25. He does not have special vulnerability or needs himself [s 18(1)(k)] but I do note the situation with his children and his partner provide a need for the accused to be free for a lawful reason, namely, the care of those children and his family and the resurrection of his business while that is still possible: s 18(1)(m). He also has a legitimate need to be free to prepare for his appearance: s 18(1)(l).

26. Perhaps most significantly, the proposed bail conditions are such that I am satisfied that the bail concerns that I do identify do not rise to the height of “unacceptable risks”: s 18(1)(p). My conclusion is that the bail concerns are alleviated by the bail conditions that Ms Bannister proposes, not least of which is the offer of a very large amount of surety which is basically the family’s entire interest in the family home. I would accept that it is most unlikely that Mr Mawad would put his wife’s house at risk by failing to appear.

27. For those reasons I have decided, after some anxious consideration, that the application will be granted and bail will be granted on the following conditions.

28. The applicant, Tony Mawad, is granted bail subject to the following conditions:

1. To be of good behaviour.

2. To report to Bankstown Police Station daily between the hours of 8 am and 5 pm.

3. To live at [REDACTED].

4. To appear at the Burwood Local Court on 13 August and on such date thereafter as required.

5. Not to drink alcohol or enter any premises in which alcohol is sold.

6. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor).

7. Not to associate or communicate by any means (except through his/her lawyer) with Torik Jamal.

8. The applicant is not to be absent from the address at which he is required to live between the hours of 8 pm and 6 am except in the event of a medical emergency

9. Not to have any contact in any way (except through a legal representative) with [REDACTED] or any person notified as a prosecution witness in the case.

10. Not to apply for any new passport or travel document.

11. Not to go within 500m of any point of departure from the Commonwealth of Australia.

12. One acceptable person is to deposit acceptable security in the sum of $300,000 and agree to forfeit it if the applicant fails to appear before court in accordance with the bail acknowledgment.

13. One acceptable person is to deposit $ 10,000 which he/she agrees to forfeit if the applicant fails to appear before court in accordance with the bail acknowledgment.

14. To present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.

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Decision last updated: 31 August 2015