R v Omar Farooq ZUHAIRI

[2021] NSWSC 784

Supreme Court

New South Wales

Medium Neutral Citation:	R v Omar Farooq ZUHAIRI [2021] NSWSC 784
Hearing dates:	1 June 2021
Decision date:	01 June 2021
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Bail refused
Category:	Principal judgment
Parties:	Omar Farooq ZUHAIRI (Applicant) Regina (Respondent)
Representation:	Solicitors: Criminal Law Group (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2021/00119409

Judgment

1. HIS HONOUR: Before the Court is an application for bail by Omar Farooq Zuhairi. He is currently incarcerated on remand in relation to two sets of charges. The first was said to have been committed on 23 February 2021 for damage of property to his sister's dining room table, for which bail was initially granted and then revoked when the second set of charges were preferred. That was a charge of damage of property. That is listed for summary hearing before the Local Court on 25 October 2021.

2. The second set of matters were said to have been committed on 4 April 2021, or between then and 13 April 2021. They include two charges, one of which is a wound with intent and the second of which is a breach of an Apprehended Violence Order (AVO). The AVO was in relation to the applicant’s sister, about whom the damage to property offence was said to have been committed, and the wound with intent which was in relation to a friend who it was said was a passenger in a vehicle being driven by the applicant.

3. The situation is the applicant has a very limited criminal history, he has not before been in prison, and as a consequence there are reasons why cause may be shown.

4. The trial in relation to the wound with intent and breach AVO will be heard not before, it seems, the middle of March 2022, as a consequence of which the applicant will have been in prison for about 11 months, just under 12 months before trial. That as a delay is not unusual for an indictable offence of this seriousness.

5. The wound with intent involves wounding it is alleged with a screwdriver that was used to stab a friend of the applicant multiple times, that is in the one incident. It is a very serious wounding for which, if the applicant were found guilty, it is likely he would have imposed upon him a full-time custodial sentence and it would be a full-time custodial sentence that would be longer than the period between now and the trial date or indeed between April of this year and the trial date. In other words, it will be longer, in terms of a non-parole period, than 12 months.

6. What is clear from the applicant’s history and the circumstances of this offending is that the applicant has a significant difficulty with addiction or abuse of cannabis. It seems, although there is no evidence directly to this effect, that the applicant’s conduct can be sheeted home to the effect of cannabis.

7. The applicant submits that there is not a strong Crown case because there is no direct evidence. The material before the Court suggests that while there is no direct evidence other than that of the complainant, there is evidence corroborating the complainant’s view and circumstantial evidence that would in my view make the Crown case a strong one.

8. The other aspect of it is that there is no issue about identification because in this case the complainant is, or was perhaps, a friend of the applicant.

9. The matter is a show cause matter if, for no other reason, than the latter offences of wound with intent and the breach of AVO were committed whilst the applicant was on bail for the earlier offence.

10. The conditions proposed by the applicant are strict. In effect the conditions amount to house arrest, that could be departed from only for the purpose of attending prearranged legal conferences, medical appointments, a medical emergency or attending court, and when departing from that house the applicant would have to be in the company of another sister, that is a sister other than the complainant in relation to one of the matters, and/or his mother.

11. There are medical issues associated with the applicant’s mother and sister which provide lawful reasons why the applicant should be at liberty.

12. The limited history, that is criminal history of the applicant does not reflect other than this breach, a failure to appear or a breach of conditions that have been imposed upon him either by bail or by bond or whatever. As a consequence, I do not consider that the applicant is an unacceptable risk of flight.

13. The applicant has strong community ties being the presence of his mother and the rest of his family and, as a consequence, I do not think flight is an unacceptable risk.

14. However, I am seriously concerned about the unacceptability of the risk associated with what seems to be irrational violence caused, it seems, by the consumption of illicit drugs. It is all very well for the applicant’s mother and sister to go guarantee in the sense of looking after the applicant. The difficulty is there is a serious risk the applicant will use drugs, and there is an even more serious risk that if he does use the drugs, they will be victims of the kind of irrational violence of which we have spoken.

15. It seems to me in the circumstances cause has not been shown. I make it clear however that in my view if the applicant or his representatives were able to obtain a residential program for rehabilitation, that would alter significantly, indeed fundamentally, the position the Court has taken, and I grant leave to the applicant to reapply if a rehabilitation program is obtained in relation to his drug addiction.

16. Otherwise, cause has not been shown and bail is refused.

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Decision last updated: 29 June 2021