R v R Schaaf; R v F Schaaf

[2022] NSWDC 116

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v R Schaaf; R v F Schaaf [2022] NSWDC 116

Hearing dates:

13 April 2022

Date of orders:

13 April 2022

Decision date:

13 April 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 52

Catchwords:

BAIL – accused persons’ release applications – charge of detaining complainant, in the company of others, without consent and with intent to obtain advantage, occasioning actual bodily harm

Legislation Cited:

Bail Act 2013 (NSW) ss 16A, 17, 18, 19

Crimes Act 1900 (NSW) s 86

Cases Cited:

DPP (NSW) v Tony Mawad [2015] NSWCCA 227

JM v R [2015] NSWSC 978

McAndrew v R [2016] NSWCCA 58

Moukhallaletti v DPP [2017] NSWCCA 314

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecutions
Mr R Schaaf (applicant)
Mr F Schaaf (applicant)

Representation:

Ms Calderbank for the ODPP
Mr Goold (solicitor) for the applicants

File Number(s):

2021/00124978; 2021/00125074

Publication restriction:

Non-publication order involving any child care proceedings – content redacted

Judgment

1. Before the Court are two bail applications by two persons (both brothers), who have been charged on indictment that on 14 April 2021, at Cremorne, in the company of other persons, each detained Mr Stuart MacGill (the complainant) without his consent and with an intent to obtain advantage, namely the extortion of money and/or information, and at the time of detaining, actual bodily harm was occasioned to the complainant. The alleged offending is contrary to s 86(3) of the Crimes Act 1900 (NSW). The seriousness of the offence is indicated by the fact that the offence has a maximum penalty of 25 years imprisonment.

2. As summarised in the Crown’s written submissions on the application, the complainant is a former cricketer. The complainant is in a relationship with the co-accused’s (Mr Sotiropoulos) sister, making him the co-accused’s brother-in-law. In April 2021, the complainant put the co-accused, Mr Sotiropoulos, in contact with a male by the name of “Sonny.” It is alleged that Mr Sonny is a known cocaine dealer. Sometime after this, it is believed that Mr Sotiropoulos was involved in a “botched” drug deal with Sonny whereby Sonny used “fake” money to obtain 2kg of cocaine. Mr Sotiropoulos has since been charged with supply of a large commercial quantity of a prohibited drug.

3. It is further alleged that on 14 April 2021, Mr Sotiropoulos attended the home of the complainant and confronted him about what had taken place between himself and Sonny. Mr Sotiropoulos blamed the complainant as he had “vouched” for Sonny. The complainant was then approached by one of the applicants in this proceeding, Richard Schaaf, and was ordered into the car. The other applicant, Frederick Schaaf, was allegedly waiting in the car. The complainant was then allegedly driven to Bringelly where he was taken into an abandoned shed and assaulted by Richard Schaaf and a co-accused, Vaeluagaomatagy Felio, in the presence of Frederick Schaaf.

4. Both applicants for bail were arrested and charged on 5 May 2021 and have been in custody, with bail refused, since that date. The prosecution briefs have been served and the applicants were committed for trial on 24 February 2022 and the matter is next listed on 22 April 2022 for arraignment.

5. The Crown opposes bail in the case of each applicant.

6. It is common ground that the show cause requirement in s 16A of the Bail Act 2013 (NSW) (‘the Act’) is enlivened.

7. The issues are therefore whether either applicant can show cause why their detention is not justified and, if either or both succeed in doing so, whether (for the purpose of s 19 of the Act) there is an unacceptable risk that either or both applicants will: fail to appear at any proceeding for the offence, commit a serious offence or endanger the safety of victims, individuals or the community.

8. The Crown and both applicants made extensive submissions and relied upon voluminous material as to the matters set out in s 18 of the Act.

9. There is considerable overlap in the circumstances of each application and where there occurs, I will not differentiate the position of the applicants. Plainly, where there are differences pertaining to each application, they will be identified.

THE SHOW CAUSE REQUIREMENT

10. The Act does not delineate what an applicant needs to establish to satisfy this requirement, however, logically, some of the matters identified in s 18 are relevant to proof of the requirement. Also relevant is the length of time an applicant is likely to spend in custody if bail is refused; and the accused’s need to be free to prepare his or her appearance in court and or to obtain legal advice[1] .

    1. McAndrew v R [2016] NSWCCA 58 at [9]

11. Cause may be shown by a single factor, or by a powerful combination of factors[2] . It is unnecessary to establish special or unusual circumstances[3] . Further, the circumstance that the Crown’s case is strong is not necessarily determinative against the application[4] .

    2. Moukhallaletti v DPP [2017] NSWCCA 314 at [54]

    3. DPP (NSW) v Tony Mawad [2015] NSWCCA 227 at [42]

    4. JM v R [2015] NSWSC 978 at [41]

Strength of the Crown case

12. The applicants commonly argued that cause has been shown, primarily on the basis that although both applicants may have a case to answer, it is questionable whether the Crown will be able to make out the cases against each applicant to the requisite standard. Put another way, it is said that in the case of each applicant, their respective prospects of success are not merely fanciful. They say that the Crown case is not relatively strong. Both applicants emphasise that the Crown case depends substantially upon the jury’s acceptance of the complainant as a witness of credit. On the basis of the briefs of the evidence, they say that there are inconsistencies in the anticipated evidence of the complainant and another Crown witness (Mr Price) and, further, challenge will be made to the complainant’s credibility based on the contention that the complainant himself was involved in a drug transaction. Altogether, they argued that there was a non-fanciful prospect that the Crown will not be able to make out the essential elements of the offence of his being detained and/or that actual bodily harm was occasioned to the complainant at the time of the detaining. Reference was made during the hearing of argument to CCTV footage and other matters which generally suggested that the complainant did not conduct himself as someone who had had actual bodily harm inflicted upon him would act. In oral argument, the solicitor for the applicants emphasised that there was doubt as to whether the Crown could make out an absence of consent to the detention.

13. As to Frederick Schaaf’s position, he argues separately that his alleged involvement was confined to being the driver of the vehicle. The complainant did not allege that he participated in any threats or infliction of assaults upon him. That might mean that a lengthy delay might result in his serving more time in custody than he would receive following sentence and after conviction.

14. The Crown argues that its case is strong.

15. At this point, I propose to defer consideration of the factor of the strength of the Crown case, since in my view, there are other factors which would incline the Court to a finding that cause has been shown.

16. The applicants commonly point to the desirability of their being at liberty to prepare their defences for trial, the expected delay of 2 years or thereabouts before trial, the strict bail conditions proposed (as to which see below) and that because of the Pandemic, their custody has been more onerous than it otherwise would have been.

17. The applicant Richard Schaaf points to the following matters in his individual case [5] :

• [redacted];

• He needs to provide emotional and physical support to his partner, Grace Miles, who suffers from a mental illness

  5. At the outset of the hearing, the solicitor for the applicant, Richard Schaaf sought and was granted (with the Crown’s neutrality) a non-publication order. There will be occassions in these published reasons where what was said in the oral reasons will be redacted.

18. The applicant Frederick Schaaf points to matters affecting him in an individual capacity:

• Corrective Services have been unable to provide him with dental treatment he urgently requires, so he faces the prospect of permanently losing 10 teeth;

• His mother was hospitalised in February 2022 due to a kidney infection and heart attack. If bail was granted, he could reside with his mother and care and assist her in her convalescence.

19. The Crown did not concede that cause is shown in either case. In my view, having regard to the combination of matters raised by each applicant, especially the length of expected delay, and (for Frederick) the personal and (for Richard) legal matters they are required to attend to, these point to the desirability of their releases, in both cases, cause is shown.

UNACCEPTABLE RISKS

20. Section 19(3) of the Act indicates that simply because an applicant for bail has shown cause that his or her detention is not justified, acceptance of that requirement is not relevant to the determination of whether there is an unacceptable risk.

21. The solicitor for both applicants concedes that there are bail concerns represented by each of the matters set out in ss 17(2)(a) – (d) (incl) of the Act. Their common contention, however, is that the strict bail conditions that they propose, which they characterise as being akin to being on house arrest, would mitigate those concerns such that the risk could not be regarded as being ‘unacceptable’.

22. Because of the factual overlap previously adverted to, when evaluating each of the s 18 matters referred to in the parties’ submissions, I propose to initially deal with matters commonly affecting both applicants before addressing individual matters.

Nature and seriousness of offence

23. The applicants concede that the offence is serious. Given the maximum penalty, I would agree with the Crown that the nature of the offence is such that it is extremely serious. But the applicants contend that the criminality falls at the lower end for this type of offence. It is not altogether clear at this point whether its contention will likely be sustained. Nevertheless, the Crown acknowledges some differentiation as between the roles of both applicants: Richard Schaaf had a principal role, including a threat to the complainant and interrogation of him and assault; whereas Frederick Schaaf transported the complainant.

Strength of the Crown case

24. I touched upon the debate about this earlier.

25. On the materials before the Court, whilst acknowledging potential weaknesses identified by the applicants’ solicitor, I accept that the Crown case is reasonably strong. I do not regard proof of actual bodily harm as presenting an especially high bar for the Crown. Matters indicating inconsistencies in what the complainant said to Mr Price or what he said he saw in the car which took him away do not obviously present as likely to be fatal to his credibility, in the context of the shocking events he was narrating. He made contemporaneous complaints to his partner and Mr Price.

History of violence

26. Richard Schaaf has a history of which include being armed with intention to commit an indictable offence and affray in 2010, intimidate a police officer in execution of duty in 2016 and in 2019 stalk/intimidate with intent to cause fear or mental harm. The applicant also has been involved in violent episodes in custody.

27. Frederick Schaaf has a single prior conviction for assault occasioning actual bodily harm.

Previous commission of offences whilst on conditional liberty

28. Richard Schaaf has on multiple occasions failed to comply with orders of the Court. At the time of the present offence, the applicant was on an ICO. He has breached bail on three occassions, once in 2012 and twice in 2019. The applicant failed to appear and caused a bench warrant to be issued in 2012 and breached a CCO in relation to driving offences in that same year. Further, at the time of his offence for directing a criminal group, the applicant was subject to an 18-month CRO.

29. On two prior occasions, Frederick Schaaf has been brought to Court for breaches of bail.

Criminal associations

30. The Crown invites the Court to infer that given the nature of the offending, the applicants may both be described as ‘hired muscle’, facilitating the conclusion that they have criminal associations. The applicants’ solicitor cavilled with that description, but did not dispute that the applicants were associates to the Comanchero Motorcycle Club. The applicants’ solicitor sought to argue that that fact was not a pointer to criminal associations. In my view, the inherent nature of the offending, the past criminal history of both applicants and the associations with the outlaw motorcycle gang lends substance to the inference raised by Crown’s submission.

Time in custody before trial

31. The Crown concedes, on present indications, that if the matter proceeds to trial, it is unlikely that a trial could occur until early 2023 at the earliest. In oral argument, the solicitor for the applicants indicated his understanding that, at the earliest, a trial was unlikely to occur until late February 2023, but even this possibility was provisional, having regard to the possibility of other co-accused being added. This makes the applicants’ estimate of a period of two years, in custody, since the date of the alleged offending, realistic.

32. However, the Crown points to the nature of the offending, its seriousness and the strength of the Crown case as suggestive that the consideration of delay, though it would favour the application, is not decisive.

Likelihood of a custodial sentence

33. Both applicants concede that if convicted, both would sustain a sentence of imprisonment, served in a custodial setting. The applicants argue, however, that the risk of absconding is significantly diminished in view of the proposed bail conditions.

Need for liberty to properly instruct lawyers and prepare defences

34. Both applicants rely upon this consideration. Their solicitor emphasised that the significant periods of lockdown in the detention facilities create barriers to effective legal representation.

35. The applicant Richard Schaaf says the force of this consideration, which the Crown did not dispute, is augmented in his case. [Redacted].

36. The existence of another legal proceeding, beyond the current criminal proceeding in which Richard Schaaf is concerned is a relevant matter, although of itself, it does not have substantial weight in my view.

Other lawful reasons to be free

37. Richard Schaaf argues that [redacted] has distressed his partner, Grace Miles. She has no significant support for the problems she identified in detail in her affidavit. Bail would mean that Richard Schaaf could supply that support.

38. Frederick Schaaf points to the need for urgent dental treatment: as a result of his arrest and going into custody, he has not been able to have his temporary Crowns removed and replaced with permanent Crowns. According to a solicitor, this was so despite an earlier expectation that assistance could be rendered. He also repeats his desire to provide care and assistance to his mother who has recently sustained ill-health.

Views of the victim or family members of the victim

39. The Crown points to the statement in the police statement of the complainant that he is scared for his, and his family’s safety. That statement was made on 20 April 2021. There is no reason to consider that this concern has obviously dissipated.

40. However, in oral argument, the solicitor for the applicants referred to the circumstance, not disputed by the Crown, that on 22 February 2022, the complainant himself had been charged with offences of intimidation and using offensive language. It was argued that this might ‘ameliorate’ the level of his fear.

41. I must confess to struggling to understand that submission. It strikes me as setting up a false dichotomy. In my view there is no inconsistency between any alleged act of intimidation by the complainant towards someone and his own expression of fear of further violence being inflicted upon him or other interference with his freedom or personal safety.

Proposed bail conditions

42. The applicants proposed substantially identical bail conditions. The differences are attributable to the proposed residential addresses, which, it is proposed, results in a different police station to which the applicants should report twice daily.

43. The features of the proposed bail conditions may be summarised as follows:

• good behaviour;

• appearance in Court when required;

• reporting to police (for Richard to Hurstville, for Frederick, to Marrickville) twice daily;

• residence at the places designated for each applicant. In the case of Richard, this is to be with his partner, Grace Miles. In the case of Frederick, this is to be with his mother;

• non- absence from the residence except for very limited circumstances: reporting to police, attending Court or pre-arranged conferences with lawyers or medical emergency (for the last circumstance, for Richard being in the company of either Grace Miles and in the case of Frederick, being in the company of his mother or his partner, Pelinita Moala);

• written notice to police at least 24 hours before attendances in Court or conferences with lawyers; and for medical emergency, notification to the officer in charge of the investigation (Det Benjamin Whitmore) either before leaving the residence or, if that is impractical, as soon as possible thereafter;

• not to go within 1 km of the suburb of Cremorne;

• submission to 24-hour electric monitoring to be fitted before release on custody;

• possession of a single mobile telephone;

• inability to apply for passport, or other travel document;

• no approach or coming within 500m of any international point of departure;

• presenting at the front door of the premises at which they are residing if requested by police;

• no contact with prosecution witnesses or any co-accused;

• forfeiture of a sum of $100,000 by an acceptable person, with security (Ms Gossayne gave evidence of her willingness to provide security to both);

• abstention from drugs;

• no release except into the custody of the applicants’ respective partners from their present place of custody;

• automatic revocation of bail for breach of these conditions.

44. The Crown acknowledges the prima facie strength of these conditions in ameliorating risk, but argues that in view of matters relating to their past criminal history, including non-compliances with earlier court orders, the risk of non-adherence to the conditions remains unacceptable.

Evaluation of s 18 matters

45. I accept that there are individual differences in the position of the applicants, as to the apparent seriousness of each other’s offending in the alleged joint criminal enterprise, and the unique aspects of hardship or deleterious consequences to themselves and to third parties, should their applications be respectively rejected. There are also obvious differences in the extent of the criminal (and custodial) histories and record of compliance with earlier court orders.

46. However, although I have noted some of those differences, both applicants commonly face difficulties: neither gave any or any persuasive evidence of close community ties; they both have prior criminal histories involving violence; given the very serious nature of the offence, which at least in connection with the detention aspect, involved prior planning by a criminal enterprise, they both face substantial custodial sentences if convicted, even if, as appears, Frederick’s participation appears less conspicuous than Richard’s (or any of the other co-accused), in my view the circumstances suggest criminal associations and there are instances where they have both demonstrated, on multiple occasions, an unwillingness or inability to comply with Court orders. As to Frederick’s discrete point about the possibility of serving greater time in custody than he might serve if convicted and sentenced, in my view, it is speculative to draw such a predictive conclusion.

45. The concern about an inability to comply with court orders, in the case of each applicant, inclines me to consider that notwithstanding the apparent strength, ‘on paper’, of the conditions proposed for bail, there is an unacceptably high risk that those conditions will be ineffective; or not complied with. Also relevant in this regard is that the people with whom the applicants propose to reside have a personal or emotional connection with the applicants and there is a doubt about their willingness or ability to ensure that the conditions are complied with.

46. Contrary to the applicants’ submission, I also place weight upon the complainant’s views. Accepting, for present purposes, the basic narrative of the complainant’s account, he was detained and then beaten up by a group of persons as part of an enterprise, including both applicants, where the assailants had no reasonable basis for considering that he was personally responsible for the loss of money of a criminal associate or associates. The epithet that they were “hired muscle” does not obviously appear inapt and, if the conduct was proven, it would tend to show a commonly ruthless willingness in these applicants to be party to organised criminal activity against ostensibly innocent persons. That being so, there is a strong concern that if released, the complainant and potentially other third parties may be subject to attack.

47. Although the Court is concerned, in both the applicants’ cases, that there is a real prospect of a delay of up to two years, if not more, from the date of the alleged offending, or from the time both applicants went into custody, that is not decisive. Delay, even substantial delay, for accused persons is a very unfortunate by-product of difficulties faced by the court system in responding to the Pandemic over the last two years.

48. The Court is also not oblivious to hardship to Ms Grace Miles (supported by the views of Mr Farrugia), in her attempts to look after her children and her own sick mother, or the deprivation of assistance to Mrs Schaaf in the event these applications were refused.

49. Nevertheless, on balance, the Court is satisfied that on an overall assessment of the bail concerns, there remains an unacceptable risk in respect to each of the matters referred to in s 19(2).

50. Both bail applications are refused.

51. In terms of the treatment of Frederick Schaaf’s dental health, I direct that the affidavit of Julie Nguyen affirmed 12 April 2022 be brought to the notice of the personnel within Corrective Services responsible for the supervision of Frederick Schaaf at the Silverwater Correctional Centre.

52. For the benefit of the parties, I also indicate that this judgment will be published on Caselaw. I note, in this regard, that at least one journalist appeared to be in the Courtroom during the hearing and during the delivery of oral reasons. If the parties consider that the interests of justice warrant it being removed at some point, for example, because a trial is proximate, than they can notify the Court accordingly.

**********

Endnotes

Amendments

14 April 2022 - Coversheet amendment made

Decision last updated: 14 April 2022