R v Sarkhel Rokhzayi

[2014] NSWSC 958

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sarkhel ROKHZAYI [2014] NSWSC 958
Hearing dates:	11 July 2014
Decision date:	11 July 2014
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	Bail refused.
Catchwords:	Bail - detention application - Bail Act 2013 (NSW) s 50(1) - revocation of bail - whether bail refusal under Bail Act 1978 constitutes a bail decision under Bail Act 2013 - relevance of Crown case and nature of offences to risk assessment - alleged involvement in organised criminal activity - bail refused.
Legislation Cited:	- Bail Act 1978 (NSW), s 8B - Bail Act 2013 (NSW), Sch 3, s 17, s 20, s 50, s 69, s 74, s 75 - Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases Cited:	- R v Sarkhel Rokhzayi (Supreme Court (NSW), Fullerton J, 19 December 2013, unrep)
Category:	Principal judgment
Parties:	Crown (Applicant) Sarkel Rokhzayi (Respondent)
Representation:	Counsel: W.P. Brewer (Applicant) S. Herbert (Respondent) Solicitors: Director of Public Prosecutions (Applicant)
File Number(s):	2014/148577
Publication restriction:	Nil, but note that this decision will be removed from Caselaw well prior to any trial of the respondent.

ex tempore Judgment

Application for revocation of bail

1. This is an application by the Director of Public Prosecutions pursuant to s 50(1) of the Bail Act 2013 (NSW) (the "Act") for the revocation of the respondent's bail.

History and nature of the application

1. On 7 November 2013 the respondent, Sarkhel Rokhzayi, was charged with seventeen offences, the details of which I will shortly outline. He was initially refused bail. However, on 11 December 2013 he was granted conditional bail by the Local Court. The Director applied to this Court to review that decision. On 19 December 2013 Fullerton J heard that application and ordered that bail be refused (R v Sarkel Rokhzayi (Supreme Court (NSW), Fullerton J, 19 December 2013, unrep)). In doing so, her Honour held that the respondent had not rebutted the presumption against bail that was found in the former s 8B of the Bail Act 1978 (NSW).

1. With effect from 21 May 2014, the Act came into force. On 25 June 2014 the Local Court heard and allowed a "release application" made on behalf of the respondent under the Act.

1. On 27 June 2014 the Director gave notice of his intention to apply for a detention application. The matter was listed before me on Tuesday, 8 July 2014. On that day the solicitor for the respondent applied for an adjournment, as counsel who had been retained in the matter for some time was not available. I indicated that the Court would list the matter the next day, on 9 July 2014, but I was advised that counsel was engaged at the critical point of a jury trial. Instead, to accommodate both the respondent's counsel and the understandable desire of the Director that the matter be dealt with expeditiously, the matter was fixed before me this afternoon.

1. Section 69 of the Act imposes restrictions on, inter alia, the Local Court when hearing a bail application in circumstances where a "bail decision" had previously been made by the Supreme Court. One such restriction is the requirement for the Local Court to be "satisfied that special facts and special circumstances justify the hearing of a bail application" (s 69(1)(c)). It is unclear whether the Local Court regarded itself as constrained by that provision. I doubt that it was.

1. The transitional provisions in schedule 3 of the Act do not appear to have the effect of deeming a decision made by this Court to revoke or refuse bail under the Bail Act 1978 to be a "bail decision" within the meaning of s 8 of the Act.

1. Of course, in many cases s 74 of the Act may preclude the re-agitation of bail decisions made under the Bail Act 1978 (see cl 9 of schedule 3 of the Act). However, s 74(1) had no application to the Local Court in this case because that court was not hearing a release application in circumstances where that same court had previously refused bail for the offences in question.

1. It is unnecessary to consider this further because, in hearing this application, s 75 of the Act stipulates that it is to be by way of a "new hearing". Further, subsection 74(1) has no application to this matter because this Court is not hearing a "release application". Subsection 74(2) has no application because this Court has not previously granted or dispensed with bail, or affirmed any decision to this effect.

1. The end result is that this Court must consider the respondent's bail status afresh.

The Crown case

1. The detailed statement of facts tendered by the Crown reads like an adaptation of the novel The Godfather to certain events in south-west Sydney in 2013. They recount chapter and verse of what is alleged to have been an ongoing and bloody feud between the Blacktown and Bankstown chapters of an alleged criminal organisation called "Brothers for Life" as viewed from the perspective of the Blacktown chapter.

1. The events concerning the respondent arose out of the shooting of three people in a driveway at Bankstown at around midnight on 6 November 2013. The motivation for the shooting is alleged to be a fear that one of the victims had the means of providing the addresses of members of the Blacktown chapter to the Bankstown chapter.

1. According to the Crown, the shooting was carried out by two Blacktown chapter members, one in possession of a .38 calibre revolver, and another, Witness D, in possession of a pump-action shotgun. A third Blacktown chapter member is alleged to have blocked the victims' exit from the driveway. All of the victims are said to have suffered gunshot wounds, but none of the wounds was fatal.

1. The Crown alleges that the respondent acted as a custodian of the firearms used in that shooting. In particular, it contends that three hours prior to the shooting he was contacted by one of the assailants, and that forty minutes later he attended a meeting and provided the assailants with a .38 revolver and the shotgun, which was loaded.

1. The respondent's alleged conduct in doing so forms the basis for three charges of him being an accessory before the fact to shooting with intent to murder. There are three backup charges to those offences, as well as a charge of participating in a criminal group contributing to criminal activity. The balance of the charges are firearms offences concerning the possession and supply of the firearms used in the attack.

1. The facts also provided some indication of the evidence the Crown says supports the charges against the respondent. It is evident from the above recitation that one of the assailants, Witness D, is prepared to give evidence to the Crown. He is said to directly implicate the respondent. He is said to state that the weapons were provided to the assailants and were already loaded.

1. The facts also suggest that another person involved in the shooting, Witness C, will give evidence on behalf of the Crown. Witness C is said to have assisted in locating the vehicle used in the shooting. It does not appear that Witness C directly implicates the respondent. The Crown's statement of facts also state that some telephone intercept material, or at least surveillance material, corroborates Witness D's evidence.

1. Further, thirty-five minutes after the shooting, the police apprehended Witness D, one of the other alleged assailants, and the respondent in the vicinity of the vehicle used in the shooting. The vehicle was parked outside the respondent's house. The two weapons used in the shooting were found inside the vehicle. Near the firearms were some plastic bags. It is said these plastic bags contained a number of fingerprints, including the respondent's.

1. On 7 November 2013 a search warrant was executed at the respondent's premises. Apparently the search warrant was extensive but did not reveal the presence of any firearms. However, it did reveal the existence of a false driver's licence and false identification. Apparently this material used the respondent's picture but had a different name.

1. From the Bar table I was informed that this false information related to a point in time where the respondent used this material to obtain access to licensed premises, an explanation that is not implausible. However, the Crown submitted that the fact that he had retained it and was capable of accessing it was of significance to his bail status.

Other matters

1. Before addressing the relevant statutory provisions, it is necessary to set out some further facts to this application. The respondent is twenty-three years of age. He came to Australia from Iraq with his family when he was sixteen years of age. He left school when he was nineteen. At the time of his arrest he was enrolled in TAFE and pursuing an apprenticeship. If he is released he will resume his work and most likely resume his apprenticeship and study at TAFE.

1. Prior to his arrest the respondent lived with his parents and two sisters. He has another sister who lives in Sydney. The respondent's family is strongly supportive of him.

1. The bail conditions imposed by the Local Court imposed a particularly strict regime of reporting, as well as a curfew. In addition, they required that an acceptable person provide a substantial security. In the events that happened, a family friend provided security in the amount of $750,000, which appears to be by way of a mortgage or charge over their home.

1. The respondent was released on those conditions on 8 July 2014. In an affidavit sworn by his father, his father testifies as to the strict monitoring of his son that has occurred since his release.

1. To this I should add that the respondent has a criminal record, albeit a relatively modest one. For my part, the only matter of significance is a conviction for an assault occasioning actual bodily harm in 2011. In respect of that offence he received a twelve month bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). From the Bar table I was informed that the circumstances surrounding that assault concerned a disagreement over a rail ticket that flared up.

Section 17(3) of the Act

1. In assessing whether the release of the respondent poses any of the unacceptable risks referred to in s 17(2) of the Act, I am required to consider the criteria in s 17(3). I have already described the respondent's personal circumstances and his criminal history and his alleged history of violence (s 17(3)(a)).

1. Sections 17(3)(b) and 17(3)(c) of the Act refer to the nature and seriousness of the offences with which the relevant person is charged and the strength of the prosecution case.

1. Clearly, the offences of which the respondent is charged are of the utmost seriousness. If he is convicted, and even if he is only convicted of the firearm offences, it is inevitable that he will face a significant custodial sentence, irrespective of any subjective case that he could mount (see s 17(3)(h)).

1. An assessment of the strength of the prosecution case is a very difficult task for a bail court. Bail courts cannot and do not conduct a mini trial. Bail courts are only provided with a limited set of materials. Within those constraints, my assessment is that the Crown case is reasonably strong. There are obvious difficulties that can be anticipated with the credibility of Witness D. However, the apprehension of the respondent shortly after the attack and the presence of his fingerprints on the plastic bag found near the weapons appears, prima facie, capable of corroborating the relevant assertions that it can be expected that Witness D will make about the respondent's involvement.

1. In cases such as this, the interrelationship between s 17(3)(b) and (c) on the one hand and s 17(2) is important. The process envisaged by the Act is one of "risk assessment". Such an assessment is taken in the context where a person seeking bail is entitled to the presumption of innocence. Nevertheless, the Court is required to consider the strength of the prosecution case. This assessment informs the Court's assessment of the risk posed by the release of the person seeking bail. Of course the Court does not make any definite finding as to whether the accused person committed the offences in question. Instead it must have regard to the apparent strength of the evidence supporting the allegations in assessing the risk posed by their release.

1. Further, the assessment that is undertaken is not one that just considers the seriousness of the alleged offences and the evidence that supports them, but the "nature" of the offences. Thus, a person may be charged with a very serious offence and the evidence against them may be strong. However, the "nature" of the offence might be such that, even if it was established, it does not mean that there is a great risk that they will commit a serious offence if they are released on bail. That is so because the circumstances of the alleged offence may, for example, suggest that it arose in a relatively unique set of circumstances that will not be replicated. Of course, the existence of a strong case against an accused person for a serious offence will also inform any assessment the Court makes of the risk that the person will not attend court, but that is a different matter.

1. In this case, however, there is, as I said, a reasonably strong case that the respondent was a participant in an ongoing campaign of violence conducted by mobsters. This is a very significant matter in assessing the risk posed by his release. Such circumstances heighten the risk of the person fleeing the jurisdiction. The level and depth of the organisation involved in such crimes can easily be adapted and employed to facilitate a person leaving the jurisdiction.

1. Similarly, the fact that the person, or at least the strong possibility that the person, was involved in organised crime also heightens the risk of there being ongoing involvement in other serious crimes, as well as reprisals against the victims or witnesses should they be released.

1. In relation to s 17(3)(f), the respondent does not have a pattern of non-compliance with bail conditions.

1. Section 17(3)(g) requires the Court to consider the length of time which this person is likely to spend in custody if bail is refused. In this case, the Court has been advised that there are six co-accused whose cases are currently running with those of the respondent. At least at present, the allegations against the respondent appear to be bound up in a series of charges against those other individuals that embrace more than the shooting on the evening of 6 November 2013.

1. If the case stays in its present form, it seems likely that any trial of the respondent will be very lengthy. Accordingly, my best estimate is that if the respondent is refused bail he could face a period of at least a further fifteen to twenty-four months in custody from today. This is a very significant matter.

1. There is an obvious tension between detaining persons prior to their trial and pronouncing that they are presumed innocent until they are proven guilty. In the event that a person is acquitted following their prolonged detention prior to trial, there is generally no recompense available to them in respect of the time that they have lost. In this case I am cognisant of the fact that the revocation of the respondent's bail is likely to severely impact his ability to resume his apprenticeship and his TAFE education. I am cognisant of the fact that it is likely to severely affect his well-being and his relations with his family, and to impact upon his ability to prepare his case for trial.

1. These remarks inform an assessment of whether a particular risk posed by the release of an accused person is "unacceptable" for the purpose of s 17(2), and whether any such risk can be mitigated by the imposition of bail conditions (s 20(1)).

Sub-section 17(2)

1. Against that background, I am required to address whether any of the relevant forms of the unacceptable risk are posed by the release of the respondent on bail.

1. I am satisfied that the release of the respondent on bail would pose an unacceptable risk that he will fail to appear in any proceedings for the offence. I accept the respondent has substantial family ties to Sydney. I also accept that if he was to fail to appear in accordance with his bail undertaking it would cause significant hardship to his family, as well as the family friend who has lodged security.

1. Nevertheless, as I have said, if he is convicted of the charges he faces it is likely he will spend a substantial period in custody. Thus, there are strong reasons for him to avoid attending Court.

1. Further, and at the risk of repetition, there is a substantial body of evidence that ties him to involvement in the serious criminal activity of an organised crime group. I have already explained the relevance of that fact to the existence of flight risk.

1. Further, and accepting the explanation offered from the Bar table, the presence of false identification enforces the potential for him to access documents that could facilitate his departure from the jurisdiction.

1. Further, I am also satisfied that the release of the respondent would pose an unacceptable risk that he would commit serious offences and represent a danger to the community.

1. The body of evidence that points to his involvement in these offences is sufficient to demonstrate these matters.

1. I also accept that the respondent, if released, would create an unacceptable risk of danger to the victims of the offence.

1. As best as I can ascertain, those victims do not directly implicate the respondent in the shootings, but given that he is charged with being an accessory before the fact, their evidence would still be of particular significance to the case against him.

1. Further, in circumstances where the respondent is said to have been part of an organised attempt to execute them, and there is a body of evidence supporting that allegation, it seems to me inevitable to conclude that the risk to those victims is ongoing.

Section 20(1)

1. The critical issue for this application is the enquiry required by the Court under s 20(1) of the Act. It provides:

"When can bail be refused

(1) A bail authority may refuse bail for an offence only if the bail authority is satisfied that there is an unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions."

1. Two matters should be noted at this stage. The first is that the relevant bail conditions that this test is assessed against are, in broad terms, those that were imposed by the Local Court, although a further amount of security has been offered. Second, s 20(1) requires the Court to be positively satisfied that the relevant unacceptable risk cannot be sufficiently mitigated by those bail conditions. If the Court was left in a state of uncertainty, the conditional bail would have to be granted.

1. The case for allowing bail to the respondent is undoubtedly a powerful one. He has a supportive family and he has much to keep him in Australia. The refusal of bail is likely to have a very significant effect upon him.

1. The proposed conditions imposed by the Local Court do provide some means of comfort as to his likelihood of attending Court, not committing further offences, and not threatening or otherwise interfering with evidence or victims. However, as I have said already, the nature and strength of the Crown case resonates in an application of this kind.

1. The Crown has a strong body of evidence, supporting the substantial involvement of the respondent in a gangland style attempted execution. Its material points to the respondent having a specific and definite role, and performing his role when he was instructed at the critical time. This material strongly suggests that he has the means and the capacity to invoke that criminal organisation to assist him in fleeing the jurisdiction, if necessary. It also suggests a preparedness to continue to assist that organisation in committing serious crimes.

1. Accordingly, I am satisfied that the unacceptable risk that the respondent would fail to appear in any proceedings for the offence or would commit a serious offence is not one that could be sufficiently mitigated by the imposition of bail conditions.

1. In these circumstances, it is not necessary for me to consider whether the bail conditions would acceptably mitigate the unacceptable risk that is posed to the victims of these offences.

1. While I have no doubt that my decision will cause considerable hardship for the respondent and his family, I am regrettably obliged to refuse bail.

1. Bail is refused.

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Decision last updated: 18 July 2014