R v Mohamed Hussien

[2021] NSWDC 313

District Court

New South Wales

Medium Neutral Citation:

R v Mohamed HUSSIEN [2021] NSWDC 313

Hearing dates:

08 July 2021

Date of orders:

08 July 2021

Decision date:

08 July 2021

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

1. The application for bail is refused.

2. The court directs the prosecution not later than 20 July 2021 to inform the accused by letter of the state of the prosecution readiness for trial, including description of the whole Crown Brief for trial and when it is to be served.

3. The court directs a transcript of today's judgment be taken out and placed with the papers.

4. Callover is confirmed on 13 August 2021

Catchwords:

CRIME — Bail — Show cause

CRIME — Firearms offences — Use/Possess prohibited pistol/firearm

CRIME — Firearms offences — Reckless Discharge of Firearms

Legislation Cited:

Bail Act 2013 (NSW) s 16A

Criminal Procedure Act 1986 (NSW)

Crimes Act 1900 (NSW) ss 13(1), 33A(1)(a), 93GA(1)

Firearms Act 1996 (NSW) ss 7(1), 74(1), 74(2)

Category:

Principal judgment

Parties:

Regina (ODPP)

Mohamed Hussien, Applicant/Accused

Representation:

Counsel:
Mr Isaacs, ODPP

Mr Strik, Applicant/Accused

Solicitors:

Mr Ng, ODPP

Mr Zakaria, Solicitor for the Applicant/Accused

File Number(s):

2020/00203341

Judgment (ex tempore)

1. The accused makes application for bail. In the indictment dated 31 March 2021, there are six listed allegations of offences as follows: intimidation of a person with intent to cause that person fear and physical or mental harm (Crimes (Domestic and Personal Violence) Act 2007 section 13(1)); on 9 May 2020, at Richmond in the State of New South Wales discharge a Taurus PT1911 pistol with intent to cause grievous bodily harm (Crimes Act 1900 (NSW) section 33A(1)(a)); on 9 May 2020 discharge a Taurus PT1911 pistol at a dwelling house with reckless disregard for the safety of another person (Crimes Act 1900 (NSW) section 93GA(1)); possession of that pistol without licence (Firearms Act 1996 (NSW) section 7(1)) which was in contravention of a firearms prohibition order then in force (Firearms Act 1996 (NSW) section 74(1)); and finally, possess a PT1911 9 millimetre calibre pistol magazine, in contravention of a firearms prohibition order then in force (Firearms Act 1996 (NSW) section 74(2)).

2. Plainly, the offences alleged are serious. There is no contest that the offences fall within the ‘show cause’ category.

3. Pursuant to s 16A(1) of the Bail Act 2013 (NSW):

“A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.”

4. The burden of proof upon the accused is on the balance of probabilities.

5. Exhibit 1 is the Crown brief, to the extent that it is prepared to this date. Exhibit 2 is a letter signed by the Officer In Charge, Plain Clothes Senior Constable Leo Blazevic of the SCC Criminal Groups Squad, dated 6 July 2021. These two documents, in the usual way, include description of the Crown case. When I say “in the usual way”, I mean at this stage of pre-trial. At tab 2 of Exhibit 1 is the Crown Case Statement.

6. There is a sad chronology about this matter which Mr Strik of counsel for the accused properly directs attention of the court to. Since March of this year, the matter has come before the court and, as he put it, on five occasions prior to 3 June 2021 the Crown informed the court that it was ready for trial. These matters were listed for trial commencing 7 June 2021. But, on 3 June 2021 the trial was vacated on the Crown’s application.

7. The affidavit made 3 June 2021 by Mr Benjamin Ng, a solicitor employed by the Office of the Director of Public Prosecutions, New South Wales, has been read. It is the content of that affidavit which exposes that which I described as “sad”. The affidavit is an exposition of delay by the Crown in precisely the sense which this Court in its criminal jurisdiction has attempted, over the last few years under the present Chief Judge and with the co-operation of the DPP, to iron out. The purpose of that procedural direction, including that affidavits of readiness be produced by Officers In Charge, is to avoid exactly what, unfortunately occurred in this case; that is the vacation of a trial because the Crown had not properly readied itself or given the defence the opportunity to be ready for trial.

8. Para 21 of the affidavit listed the outstanding matters at that time. I am informed that at least items (c), (d) and (h) are still not ready. This matter is presently, fixed for trial to commence on the adjourned date, 20 September 2021. It is for return for callover before the List Judge in this precinct, Judge Hanley SC, on 13 August 2021. The items to which I refer are described in that para 21 as follows:

“(c) The expert statement of the Scene of Crime Officer who examined the black jacket located near 49 Old Kurrajong Road.

(d). The expert statement of the Scene of Crime Officer who examined the towel that the Taurus pistol was wrapped in.

(h). An expert statement comparing the ammunition located in the foot well of the vehicle and the ammunition used in the shooting.”

9. I will return to directions which I intend to make in order that the Crown meet its obligation to be ready.

10. Returning immediately to the bail application; it is pressed by Mr Strik that the Crown has so delayed this trial whilst the accused has been incarcerated since 9 July 2020, except for a period of special and very confining bail, to which I will come.

11. Mr Strik properly puts that there is no consequence to the Crown for that delay but more precisely, as I understand him to press it, that the accused has remained incarcerated or under very strict bail conditions for a year to this point. There are now approximately 10 weeks, of course, to the listing for trial on 20 September 2021.

12. Mr Strik put it that delay is relevant and, of course, he is correct. However, the offences are serious indeed and the likely sentence of incarceration in the event of convictions is significant. Weighing consideration of the value of delay and the hardship and loss of liberty whilst in remand detention against likely sentence on conviction; in my opinion, does not indicate a disproportion such as to find continuing detention to be unjustified. I mean this in the context of the present application, recognising sentences within the range for these types of offences and the trial being only about 10 weeks advanced from today.

13. In saying this, I return to my expression of “sad”. It is an affront to the values of our society and to the purposes of the legislation, the CrimesAct 1900 (NSW), the Criminal Procedure Act 1986 (NSW) and the Bail Act 2013 (NSW), that this case has been, by the Crown, prepared in a lack lustre fashion the measure of which is obtained from the reading of Mr Ng’s affidavit and from Mr Strik’s submissions.

14. A matter weighing seriously in my consideration of whether or not I am satisfied by the evidence in the application that detention is not justified is the strength of the Crown case. It is, as Mr Strik puts it, a case without any direct evidence of the accused at the scene. However, the Crown Case Statement and the Exhibit 2 letter, in my opinion, indicate a strong case of connection of the accused with the weapon used in the offence. That evidence includes the accused’s thumb fingerprint on an ammunition magazine for that weapon, which magazine was located within a tissue box within an apartment, which the Crown Case Summary describes as an apartment in regard to which forensic investigation, of telephone, CCTV cameras and surveillance, indicates was the residence or regularly occupied place of the accused.

15. The nature of these offences raises concern for the risk of danger to the community. Added to this, it is to be borne in mind that the accused has been non-compliant with bail granted him in relation to these offences in the past.

16. Campbell J, on 17 September 2020, made four pages of strict conditions for bail. Without meaning disservice to the document or to his Honour’s Orders and their completeness, I will not go to them in detail. I observe that plainly his Honour granted bail on condition of a substantial security, but even more importantly, prescribed with limitation that the bail permitted direct transport of the accused to and from Connect Global, being an in-house rehabilitation facility. On discharge from Connect Global the accused was to directly attend the nearest police station, to be taken back into custody before being returned before court, as soon as practicable, for further determination as to bail. Those conditions of bail curfewed the accused to be at Connect Global and permitted police enforcement by inspection of him being there.

17. An email, to which each of the parties has referred (not exhibited but the reference to it by the parties is equal) from the Director of Connect Global Limited Rehabilitation to the Officer In Charge, at 7.51am on 7 July 2021, informed that the accused’s contract with Connect Global was terminated on 8 February 2021, due to inappropriate behaviour and positive urinalysis testing. It was a condition of the bail ordered by Campbell J that the accused comply with reasonable directions of Connect Global. Plainly, he breached his terms of bail.

18. He breached those terms of bail again by, on discharge, not going to the nearest police station to re-enter custody.

19. Finally, he breached bail when, on 5 March 2021 at Hornsby, he committed driving offences including driving whilst disqualified and the offence of possession of a prohibited drug. He was charged on 6 March.

20. Perhaps his behaviour is, to some part, informed by problems with drugs and alcohol, which was the purpose of rehabilitation for which Campbell J provided the opportunity with those deliberately and stringently prescribed terms of bail. Whether that be so or not is not available to me, but in terms of danger to the community and in terms of compliance with recognizance of bail, that history weighs against the application in the accused’s burden of satisfying the Court that his detention is not justified.

21. For the reasons of the seriousness of the offending, the apparent strength of the Crown case so far as it is available to me to determine from Exhibits 1 and 2, the danger to the community consideration, and his non-compliance with recognizance; the applicant has failed to satisfy me that his detention is not justified in circumstances of it being only about ten weeks to trial and bearing in mind the range of sentences possible in the event of conviction.

22. Finally, I seek to acknowledge the letter from the accused’s mother that, if he be granted bail, he could reside with her at 102 Belar Avenue, Villawood, New South Wales 2163 and be under her care whilst on bail. For the reasons which I have given, that appropriate offer is not persuasive.

23. I want to also acknowledge a document entitled “Strict Bail Conditions” which for the purposes of this application I have marked MFI 2. This was the accused’s offer for conditions of bail handed up for the Court’s consideration.

24. For the reasons given, I am not moved to grant bail.

25. That said, in regard to the matter of the Crown’s delinquence in preparation of this case, to which I now return; I am mindful of mentioning that document (MFI 2) because it would not be inappropriate in my view, in the event of further delinquence by the Crown, for the accused to raise it with the Court in a future application for bail.

26. In saying this I do not indicate any opinion on the chances of success of that application. I have, as is my task, dealt with the application in the circumstances of it coming before the Court today. But the matter for the Court, which requires no application from either side, is to address, in the following Orders that delinquence.

Orders

27. I make the following Orders:

1. The application for bail is refused.

2. The court directs the prosecution not later than 20 July 2021 to inform the accused by letter of the state of the prosecution readiness for trial, including description of the whole Crown Brief for trial and when it is to be served.

3. The court directs a transcript of today's judgment be taken out and placed with the papers.

4. Callover is confirmed on 13 August 2021

28. Now, gentlemen, the purpose of that letter is that there be no veils and mirrors when the matter comes before Judge Hanley SC. It is not just a matter of the inconvenience to these parties. It is the inconvenience to all the other accused who deserve a trial and to this Court which, in the last five years, has reduced the time over which people wait for a trial.

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Decision last updated: 23 July 2021