R v Powrie

[2017] NSWSC 276

Supreme Court

New South Wales

Medium Neutral Citation:	R v Powrie [2017] NSWSC 276
Hearing dates:	16 March 2017
Date of orders:	21 March 2017
Decision date:	21 March 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Bail is refused
Catchwords:	BAIL – show cause – cause not shown – where bail would have been refused on balance of charges in any event
Legislation Cited:	Bail Act 2013 Drug Misuse and Trafficking Act 1985
Category:	Principal judgment
Parties:	Jared James Powrie (Applicant) Crown (Respondent)
Representation:	Counsel: S Boland (Applicant)   Solicitors: Future Legal (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2017/45561
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Jared Powrie applies for bail. He is charged with a large series of offences including specially aggravated break, enter and steal, supply prohibited drugs, procure minor to supply prohibited drugs, conspiracy to supply a commercial quantity of drugs, knowingly deal with proceeds of crime and knowingly direct the activities of a criminal group. Mr Powrie was arrested on 23 November 2016 and has remained in custody bail refused since then. All of his matters are next listed before the Central Local Court on 21 March 2017 for mention.

2. Mr Powrie is charged with a show cause offence within the meaning of s 16B(1)(f) of the Bail Act 2013 and is required to show cause why his continued detention is not justified. That follows from the fact that he is charged with an offence under the Drug Misuse and Trafficking Act 1985 that involves the supply of a commercial quantity of a prohibited drug within the meaning of the Act.

Background

3. The Crown case can be briefly summarised as follows.

4. On 26 September 2016, Jared Powrie, his twin brother Mitchell Powrie, a fourteen year old associate John W and Fayez Hatahet staged an armed robbery at the Beverly Hills Hotel and stole $204,060. This offence was well planned and involved John W attending the hotel some months in advance to familiarise himself with the layout of the hotel. John W received specific instructions on how the offence would be committed from Jared Powrie, such as details of the hotel’s alarm and security systems.

5. On Sunday 3 July 2016, Mitchell Powrie, John W and an associate named Jessica Wright had travelled from Grafton to Sydney to rob the Beverly Hills Hotel. Jared Powrie was working and closing the hotel on this evening. Mitchell Powrie and John W waited for Jared Powrie at the rear of the hotel for some time that evening but aborted the proposed robbery when they were spotted by passing police.

6. However, on Sunday 25 September 2016, Mitchell Powrie and John W again travelled to Sydney from Grafton and committed the robbery of the Beverly Hills Hotel. Jared Powrie claimed that he had been assaulted by unknown offenders who appeared to be “Middle Eastern”. The co-accused John W has made full admissions in relation to his involvement in the offence and has provided a detailed account outlining Jared Powrie’s involvement and coordination of it.

7. Jessica Wright has also detailed her involvement in the initial attempt on 3 July 2016 and provided investigators with an induced statement to that effect. Another witness, Angelika Wisinska-Bokiniec, a close associate of Jared Powrie, has provided a statement outlining Jared Powrie’s involvement in the offence. Evidence of Ms Wright’s involvement in the initial offence is corroborated on lawfully intercepted phone calls between Jared Powrie and co-accused Mitchell Powrie. There would also appear to be CCTV footage from inside the hotel that depicts part at least of what took place. The police will allege that it demonstrates the fact that the robbery was not committed by strangers to Jared Powrie.

8. Following the offence on 26 September 2016, investigators commenced electronic monitoring of Jared Powrie and Mitchell Powrie. It will be alleged that Jared Powrie was the head of a drug syndicate that sold drugs on the North Coast through a number of drug houses. The syndicate centres on utilising a number of trusted juveniles to sell drugs and collect money from different drug houses. Evidence of this is captured on lawfully intercepted phone calls between Jared Powrie and his associates.

9. On a number of occasions throughout the investigation, police interrupted Jared Powrie’s drug supply syndicate by conducting vehicle stops and seizing money. Despite this he continued to operate the syndicate and source drugs from different suppliers. On occasion Jared Powrie changed phone numbers which were registered under false names in an attempt to avoid detection.

10. The Crown is concerned that if released on bail Jared Powrie will interfere with prosecution witnesses, in particular the young person John W, Jessica Wright and Angelica Wisinska-Bokiniec. In support of this concern, electronic evidence was captured prior to Jared Powrie’s arrest where he and his brother are heard to express concerns about Jessica Wright informing police of their involvement in the Beverly Hills offence, saying “sometimes you have to keep you [sic] friends close and your enemies even closer”. At that stage Jared Powrie was unaware Ms Wright had provided a statement to police.

11. Jared Powrie’s ex-wife Cassie Deans has been in contact with Angelica Wisinska-Bokiniec and made attempts to arrange a gaol visit between her and Jared Powrie.

Show cause

12. Mr Powrie contended that the Crown case on the show cause offence was very weak. It is said to consist of an inference drawn from telephone intercepts recovered in the period between 18 and 20 November 2016. The Crown facts in relation to this offence state as follows:

“On 18 November 2016 the accused Jared Powrie, Mitchell Powrie and Melissa Keys commenced negotiations to purchase ten ounces (280 grams) of methylamphetamine from persons in Sydney. These negotiations were captured on lawful telephone intercepts. Each of the accused was involved in the negotiations regarding quantity and price of the drugs.”

13. Mr Powrie drew attention to the fact that an examination of the source intercept material did not convincingly demonstrate either that he had any involvement with what was going on or that he is implicated in Ms Keys’ apparent attempts to source 10 ounces of the drug in question. Indeed, Mr Powrie is only briefly referred to throughout the recorded or recovered voice calls or sms material, and on one view not at all in relation to the show cause offence. It is difficult in the circumstances to understand what the Crown proposes to make of this material or how it suggests that Mr Powrie is involved.

14. During the course of the bail hearing it was suggested by the Crown that there was other material of a similar nature that helpfully informed the Crown case on the show cause offence. Regrettably, the way in which it might do so was not explained, and the material itself, which I have read in detail, does not make the position any clearer. Moreover I note in any event that the conspiracy is said to have been consummated between 18 and 20 November 2016. It has not been explained how any intercepted telephone conversations or recovered sms material beyond those dates would or could be relevant to proof of the offence.

15. It does not seem to me that the Crown case on the show cause offence is strong. I am of the view, on the material currently available, that it is on the contrary fairly weak.

16. The establishment of an argument that the Crown case is weak will not necessarily of itself also satisfy the show cause requirement. On an application such as this it would be necessary to point to some other factor or factors that supported the contention that Mr Powrie’s continued detention is not justified. By reason of the wording of s 16A(1) of the Act, it is only detention for the show cause offence that is the relevant consideration. That is because the bail authority is specifically directed to the issue of a bail decision “for a show cause offence”. The fact that the Court might be directed to other offences for which bail is sought, and for which a refusal of bail seems appropriate, cannot influence the consideration of the show cause application. I have therefore not taken account of these other offences for the purpose of assessing satisfaction of the show cause requirement.

17. In my opinion, Mr Powrie has not satisfied me that he has shown cause why his continued detention is not justified on the show cause offence. It would in my opinion be necessary for him to have pointed to other factors, such as excessive or unreasonable delay in the matter coming to trial, significant health problems that could not be attended to adequately in gaol, unusually harsh prison conditions or treatment stemming from some characteristic unique to Mr Powrie or similar matters. For all I know, there is nothing particularly unusual in Mr Powrie’s circumstances at all.

18. Even on the question of delay, as explained below, it seems likely that Mr Powrie will become a serving prisoner in the near future. I do not presume to know what approach he will take to the robbery offence but, as I explain, it is not unlikely that a custodial sentence will be imposed. The demonstration of delay on the show cause offence, on the assumption that it could be demonstrated, would have to take account of the real prospect that some of that delay would be taken up by Mr Powrie serving a sentence of imprisonment for a different offence.

Bail concerns

19. Even if I were satisfied that Mr Powrie had shown cause as required for the conspiracy offence, I would have declined to grant bail for the remaining offences. It has been conceded, for the purposes of this application, by Mr Powrie that it is strongly arguable that the robbery of the hotel is an offence for which there appears to be no defence. Even if the offence were downgraded to larceny, there seems to me to be a significant prospect that Mr Powrie will be sentenced to a custodial term. The Crown case that it was an inside job, however it is characterised, seems unassailable. The material with which I have been provided suggests that an early plea of guilty would, on proper advice, be the most probable outcome in the proceedings.

20. It is also conceded that Mr Powrie is facing at least two other drug charges that loom as difficult cases to defend successfully. On one view, there may be more than two offences that could be so described. Even so, the prospect of Mr Powrie avoiding custody on one or other of these offences or a combination of them appears low.

21. The Crown identifies the prospect that young witnesses or co-accused might be approached or influenced if bail were granted. The Crown contends, and I accept, that that is a bail concern that presents an unacceptable risk in this case.

22. The Crown case on the non-show cause offences, of which there are 11, is either strong or very strong. The Crown contends that in such circumstances there is a risk of non-appearance.

23. I appreciate that a consideration of the s 17(2) factors is irrelevant if bail is otherwise refused for want of satisfaction of the show cause requirement under Division 1A: s 17(4). However, I have taken the view that it may be beneficial for those involved in this application for me to indicate that I would have refused bail for the balance of the offences if it had become necessary to consider them separately.

Order

24. In my opinion, bail should be refused.

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Decision last updated: 21 March 2017