R v Seguel (No 1)

[2024] NSWDC 690

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Seguel (No 1) [2024] NSWDC 690
Hearing dates:	27 November 2024
Date of orders:	27 November 2024
Decision date:	27 November 2024
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See par [11].
Catchwords:	CRIME – Detention application – Application made after guilty finding of jury – Not “inevitable” that full time custodial term of greater than three years will be imposed – Application for revocation of bail refused – Stricter bail reporting conditions imposed.
Legislation Cited:	Bail Act 2013, s 22B
Cases Cited:	DPP (NSW) v Van Gestel [2022] NSWCCA 171
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Crown – R (Cth) Offender – Dario Alexander Seguel
Representation:	Counsel: Crown – Mr Tran, C. Offender – Mr Royce, B. Solicitors: Crown – Office of the Director of Public Prosecutions (Cth) Offender - Nelson Kurucz Lawyers
File Number(s):	2021/00102584
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is a detention application. Shortly before 1pm today, the jury returned a verdict of guilty on a charge that on or about 13 April 2021 at Botany in this state, the offender did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity of that drug being a marketable quantity. The maximum penalty for that offence is imprisonment for 25 years.

2. The marketable quantity of heroin starts at 2 grams. The commercial quantity of heroin is 1.5 kilograms. The amount actually imported was 239.7 grams of pure heroin, which is well over one hundred times the minimum marketable quantity. The estimated street value of that heroin, if pure, is approximately $150,000 and if mixed would probably return in the marketplace for such drugs about $350,000. The offence is alleged to have been committed on 13 April 2021 when the offender took delivery of a parcel sent from Malaysia.

3. The offender was arrested and incarcerated but was granted bail on 5 May 2021. He has been on bail ever since. Section 22B of the Bail Act 2013 provides:

“(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full‑time detention, a court:

(b) on a detention application made in relation to the accused person ‑ must refuse bail, unless it is established that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail.”

Here, the application by the Crown in right of the Commonwealth is that, as a full‑time custodial sentence is inevitable, the detention application should be granted.

4. The defence however suggests that a full‑time sentence of imprisonment might be three years or less, in which case an Intensive Corrections Order could be imposed. As I understand it, in the alternative, the defence argues that there are special or exceptional circumstances to justify a decision to grant bail.

5. At the time that the offender was arrested, a search warrant was executed at his home at [REDACTED], Botany. He was living at those premises with his mother and his father. At the time of his arrest, the offender was 56 years old. He will turn 60 next month. At the time that the offender was arrested and the search warrant was executed, his mother was 82 years old and his father was 84 years old. On my calculations, the offender’s mother is now 86 years old and his father is 88 years old. At the time of the execution of the search warrant, the offender’s mother had what could probably be diagnosed as a “panic attack” and an ambulance was called to assist her. I have been told that she now suffers from dementia. I am also told that the offender’s father may suffer from dementia and, considering his increasing age, that may well be the case.

6. More significantly, however, is the fact that the parties agreed to facts which were relevant at the trial, that on 8 July 2020, at the Prince of Wales Private Hospital, the accused underwent a form of cranial surgery, being a bifrontal craniotomy for a large parafacine bifrontal meningioma, which the agreed facts pointed out was a form of cancer in the brain. From what I have seen, there was more than one meningioma, or using the medical language, meningiomata. The offender said from the dock when certain submissions were being made by his counsel that he has recently had a tumour removed from his nose, that of course might only be an external skin cancer but there is a possibility it could have been internal.

7. Since 5 May 2021, the offender has been at home living with his parents and caring for them. There are no details currently available as to how they might be cared for or the extent to which they require care or who might care for them if they do indeed need care. Of greater significance and probably of greater legal significance is the fact that there is no up‑to‑date medical report of a comprehensive nature telling me the state of the offender’s personal health or any up‑to‑date report from those who have been caring for him following his brain surgery or what the effect may have been of recent surgery to his nose.

8. In DPP (NSW) v Van Gestel [2022] NSWCCA 171, the Court (Gleeson JA, Wright and Cavanagh JJ) held that the condition in s 22B(1) that a convicted person “will” be sentenced to full‑time imprisonment involves an opinion or state of satisfaction as opposed to a fact. As that is an evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not a relevant factor. Their Honours also said that s 22B sets a high bar for the degree of satisfaction to be reached by the Court to engage the limitation on the power of the Court to make a bail decision under the section.

9. When regard is had to the content of s 22B, including that the Court as the bail authority is not the sentencing Court, although in this case I am both, the proceedings are not an abridged sentencing hearing and the Court is unlikely to have all the materials be relied upon by the parties on sentence. Here, I certainly have all the materials from the trial but not all the material on sentence, in particular what the offender seeks to place before me. The use of the word “will” in the section indicates a future likelihood and suggests what is realistically inevitable as distinct from what may happen or is likely to happen but does not involve a state of absolute certainty.

10. Here, I think it is likely that a full‑time custodial sentence of more than three years will be imposed. However, I cannot say that is absolutely certain and I cannot say at this stage that it is “inevitable”. In the circumstances, I accept that there is not the state of certainty that requires me to refuse bail and because there are, in my view, special circumstances concerning the health of the appellant and his parents, because he lives with his parents, as to what the future holds for both the offender and his parents, and because of a distinct need to seek alternative arrangements for the care of his parents should he be sentenced to full‑time imprisonment.

11. The application for the revocation of bail is therefore refused. However, in my view, there should be stricter conditions of bail considering the jury’s verdict. I revoke the requirement that the appellant report to Mascot Police Station each Wednesday between the hours of 8am and 8pm. In lieu therefore, I require the appellant to report to Mascot Police Station every Monday, Wednesday and Friday between the hours of 8am and 8pm. I also require the offender to continue to reside at [REDACTED], Botany until appearing before me for sentence on 7 February 2025.

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Amendments

23 October 2025 - Correct case title numbering.

Decision last updated: 23 October 2025