R v Troy Anthony Xerri

[2025] NSWSC 560

Supreme Court

New South Wales

Medium Neutral Citation:

R v Troy Anthony Xerri [2025] NSWSC 560

Hearing dates:

13 May 2025

Date of orders:

13 May 2025

Decision date:

13 May 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Bail granted.

Catchwords:

CRIME — bail — release application — private electronic monitoring — new legislation — Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025 — three month transition period — prohibits courts allowing private electronic monitoring

Legislation Cited:

Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 74

Crimes Act 1900 (NSW), ss 33, 86

Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025

Category:

Procedural rulings

Parties:

Troy Anthony Xerri (Applicant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
Ms G Bashir SC (Applicant)
Ms J Pearson (Crown)

Solicitors:
Senses Legal (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2025/00107189

Publication restriction:

N/A

EX TEMPORE JUDGMENT

1. HIS HONOUR: Before the Court is an application for bail by Troy Xerri who is 33 years of age. He has been charged with break and enter dwelling and inflict grievous bodily harm, assault intending criminal activity of a criminal group, take and detain in company with intent to obtain advantage, occasioning actual bodily harm and cause grievous bodily harm to a person with intent.

2. In essence, these are very serious offences which involve assault causing damage, whether it is grievous or otherwise, and kidnapping.

3. The seriousness of the offences in two cases are such that the provisions of s 16B of the Bail Act 2013 (NSW) (“the Act”) require, pursuant to s 16A of the Act, the applicant to show cause why his continued detention is unjustified, generally referred to as the show cause provision. Otherwise, and assuming without yet deciding that cause can be shown, the applicant is required to be assessed as to the applicant's risks in the four areas of bail concerns under s 17 of the Act, taking into account the provisions and criteria in s 18 of the Act in order to determine, pursuant to s 19 of the Act, whether the applicant poses an unacceptable risk on conditional liberty.

4. It has been said that the two issues of show cause and the assessment of unacceptability of risk are two separate issues, the first of which to be dealt with in time is the show cause provision. While I accept and agree with that proposition, it is sometimes a little artificial.

5. The applicant is capable of showing cause either by a combination of factors which are prescribed by s 18 of the Act or by matters that are extrinsic to the criteria prescribed in s 18, or by a combination of prescribed and not otherwise prescribed criteria. In other words, the Court is at large in determining that which is relevant to and capable of determining whether cause has been shown.

6. In the current case, the applicant comes before the Court and seeks to show cause by a number of factors. First, the applicant relies upon what they say are weaknesses in the prosecution case. The case, it is said, is circumstantial. In and of itself, that does not make the Crown case weak.

7. Nevertheless, much of the Crown case depends upon identification evidence through CCTV footage. The footage that the Court has seen, although I do not know whether that is the ultimate footage that will be relied upon by the Crown at trial, if there be a trial, is not such that the Court would say the Crown case is strong on that basis alone. There is also fingerprint or forensic evidence, but that is confined to a single fingerprint, I am told, on the exterior of a vehicle which is a vehicle relevant to the offences in question.

8. The second aspect is that there are significant and quite exceptional, although one does not need to show exceptional causes, reasons why the applicant needs to be at liberty. The Court has before it affidavit evidence, including medical certificates, going to the health issues associated with the applicant’s children, one in particular, who are four, one and six months of age, and of his wife.

9. The Court has had regard to those factors. It is unnecessary to record them in the judgment, but they are significantly serious and, in the view of the Court, require the attendance of the applicant and are, together with other factors, sufficient to show cause as to why his continued detention is unjustified.

10. The other factors are the delay that is necessarily going to occur in relation to the finalisation of the matters and the strength of the Crown case, which I have to say does provide some concerns.

11. Can I make it clear that the determination that the Court is satisfied that the continued detention of the applicant is unjustified does not deal with the issue of whether, if released, the applicant will be an unacceptable risk, dealing with the four concerns.

12. Before dealing with the remainder of the matters, I should deal, in effect, with that which has been put to the Court by way of imminent legislation.

13. The Court has been provided with a copy of the Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025. The Bill provides, in some senses as a corollary to provisions which already apply relating to certain offences, that private electronic monitoring will not be acceptable as a condition of bail.

14. The conditions that already apply require, in relation to certain offences, for Corrective Services to monitor its own electronic monitoring. In relation to other offences, that is those not covered by the current provision, electronic monitoring will be, under the impending legislation, prohibited.

15. It has to be said that the provision is an unusual one, to say the least. Electronic monitoring is not a panacea. It does not guarantee compliance with conditions of bail or absolute safety.

16. Frankly, very little would ever guarantee absolute safety, not even incarceration in most instances, but be that as it may, it is not a panacea. It is no more of a panacea when it is conducted by Corrective Services than it is when it is done by private monitoring services, save for the fact that, understandably, the legislature relies on the Corrective Services personnel to report and supervise electronic monitoring more carefully than the private monitoring services might. Also, there has been a recent issue with the bankruptcy of a monitoring service provider. Nevertheless, we start with the proposition that electronic monitoring is not a panacea.

17. The effect of the legislation is to prohibit the Court from allowing or permitting a condition of private electronic monitoring. There are only two possibilities that arise as a consequence of that prohibition. The first of them is that bail will be refused because the electronic monitoring is essential to ameliorating the unacceptability of the risk associated with the conditional liberty of the applicant.

18. Secondly, bail will be allowed without electronic monitoring. The effect of that necessarily means that, in the latter case, a protection, albeit not a guarantee but a protective condition, will not be permitted to be imposed upon persons who are thought to be a risk to society. Alternatively, the State will have to bear the cost of incarcerating the people.

19. The cost of incarcerating individuals is significantly higher by multiplication factors well above a hundred than the cost of electronic monitoring of such persons. As a consequence, the strange situation arises that the State is effectively saying that it will not monitor persons who are seen to be a risk and will pay more to have them incarcerated, assuming for present purposes that there is accommodation in the prisons, or it will allow a greater risk to society as a consequence of the persons being at liberty and not monitored.

20. These are political decisions. The Court is in the situation where it is required to deal with the law as it stands and is required, subject to issues of conscience and constitutionality, to apply the law, but it has to be said the proposition and circumstances that arise as a consequence of the implementation of the amendment are quite odd.

21. The second aspect of the legislation as it has been put to the Court is that by virtue of the transitional provisions, there is a period of three months during which time a person on bail who has a condition imposed upon that person of private electronic monitoring, hereinafter a private electronic monitoring condition, is required to come before the Court and seek a variation of the bail conditions. It is, in those circumstances, necessary for the Court to determine whether, in the absence of a private electronic monitoring condition, the person is or is not an unacceptable risk.

22. While the legislature has provided an exception, for want of a better term, to the provisions of s 74 of the Act to allow such an application to be made, I doubt very much that an exception is needed in the sense that, if the person is on bail, s 74 does not prevent an application by the person to vary the bail conditions.

23. The second aspect is that, given that most electronic monitoring conditions arise in the more serious bail applications, the likelihood is that more of them will have been imposed by this Court rather than the Local Court or, indeed, another authorised officer. In those circumstances, there are provisions that would impede the application to vary being done by a court other than this Court to delete the private electronic monitoring condition. All of that evidences a failure to deal with some of the provisions of the Act which the legislature has promulgated.

24. Nevertheless, and much more concerning, is the fact that, at the end of the period of three months, an applicant who has a private electronic monitoring condition, which has been complied with by the applicant as a matter of fact and law, will be "taken to have failed to comply with the bail condition". "The bail condition" must be a reference to the private electronic monitoring condition, which itself is somewhat irrational given that the private electronic monitoring condition can no longer be a condition of bail, but, leaving aside the irrationality of it, it is, in effect, a condition which provides that a person is in breach of bail and creates a penalty, namely the ability to revoke bail, on the basis of a fiction created by the legislation. Why, for example, the legislation could not simply mandate for the bailee to be required to apply to the Court (which has been done) is unclear.

25. It was described by Senior Counsel for the applicant as a "deeming" provision. I am not sure that it is a deeming provision. Ordinarily, deeming provisions deem something that does not exist to exist and creates a fiction. In this case, the provision imposes a detriment on a person who has not as a matter of fact committed a criminal offence or disobeyed any order of the Court. The legislature is invalidating an order already made by a court. This strikes at the heart of the division of power and the independence of the judiciary.

26. There are some serious questions as to whether such a provision is capable of being imposed given the provisions of Chapter III of the Constitution and the imposition of the rule of law in Australia. Nevertheless, I am required to deal with the law as it exists rather than any other matter. These are matters that, if they are brought to the attention of the legislature, they can deal with.

27. Having said that, the Court is required to deal with what are the present proposals for bail, that is the conditions, and the concerns in the Act as they exist currently.

28. Section 17 prescribes four bail concerns: The risk of flight, the risk of the commission of a serious offence, the risk of the endangerment of the safety of a victim, an individual or the community, and the risk of interference with a witness or evidence.

29. The evidence in relation to this matter is mostly scientific and independent of the testimony of a particular person. Although no doubt the victim will be required to give evidence, and I do not diminish the importance of the protection of the victim; on the contrary, I think it is probably the most important aspect of the four concerns - but, beyond that, the first issue is flight.

30. The Crown quite properly and correctly concedes that the applicant handed himself in to police when requested so to do, which has a significant impact upon the assessment of risk in terms of flight. He also has extremely strong ties with the community.

31. As already stated, he has a wife and young children, each of whom, or the majority of whom, require medical attention of some significance and that is a factor which militates against the risk of flight. In and of itself flight does not seem to be an unacceptable risk. However, in the case of serious offences where a full-time custodial sentence is a likely result if guilt is found, there is always a risk. Of course, there was always a risk in relation to almost every person applying for bail.

32. In this case, the applicant proposes home detention policed by his wife with whom he is to reside and by the imposition of electronic monitoring.

33. Before dealing with the other concerns, it is probably necessary for me to deal briefly with the circumstances of the offending with which the applicant has been charged.

34. There are three co-accused in the matter. The applicant is said to have committed these offences with Mr Bazouni, Mr Vernon and Mr Gilligan. It is alleged that, on 20 May 2024, the applicant checked into the Meriton Suites in Parramatta for three nights. He left and travelled to Mr Bazouni's address. Both men are said to be captured on CCTV footage leaving and driving to Pyrmont where the complainant lives. Mr Vernon arrived and the applicant is captured on CCTV footage greeting him.

35. While Mr Bazouni walked around the apartment and gained entry, the applicant remained outside. It is said in the Crown case that Mr Bazouni and Mr Gilligan went to the complainant's apartment and told him that they were there to check the bathroom as the toilet was leaking upstairs. They took the complainant's phone number and then left. The complainant then left to go to Bunnings and the four co-accused remained in the vicinity of the apartment.

36. When the complainant returned, Mr Bazouni told him to tell his babysitter to take his daughter out for a walk as they had to spray chemicals. The babysitter and child left the building. The applicant is then seen walking into the foyer, it is said.

37. The complainant recalled that Mr Bazouni came back into the apartment. The complainant was facing away and was struck on the back of the head. Mr Bazouni lunged at him and something cut him on his arm. Mr Bazouni asked him where was his money while kicking him and the complainant blacked out.

38. The Crown case is that the applicant and other two accused joined Mr Bazouni and participated in the assault. Mr Bazouni and Mr Gilligan are seen walking out of the apartment building. The Crown alleges that the applicant and Mr Vernon continued to assault the complainant.

39. The group, that is, as I understand it, all of the co-accused, left the apartment and the applicant is seen returning to the Meriton Suites in Parramatta.

40. The complainant was discovered by the building security guard who was contacted by the babysitter after not being able to re-enter the apartment. The complainant was found on the floor bleeding with his hands in cable ties. The apartment had been ransacked.

41. Police attended the apartment and observed blood everywhere, which I hasten to add is somewhat hyperbolic, and the ransacked apartment. They found drug paraphernalia, gloves, zip ties and methylamphetamine. They also found $184,338 in various denominations in a toolbox.

42. The complainant was taken to hospital and treated for life-threatening skull fractures and brain haemorrhages with an acute risk of raised intracranial pressure. The complainant also had complex facial injuries and forearm lacerations which required repair in the operating theatre.

43. On 24 July 2024, the applicant attended the police station and was placed under arrest.

44. Essentially the applicant in this case, that is in bail, claims that, as earlier stated, the Crown case is essentially circumstantial. It does not describe the applicant as kicking him and there seems to be little or no evidence of that and gives, on the submission of the applicant, a questionable account of attendance of the co-accused, Mr Bazouni, at the apartment. There is no physical evidence of the applicant in the apartment, that is forensic evidence. Submissions that have been provided to the Court, and I do not repeat them, list a number of deficiencies.

45. The applicant also, as earlier stated, relies upon a newborn child who has been, to put it mildly, unwell. The applicant has no contact with his children, in part as a result of their illness and in part on account of a traumatic experience which occurred the last time that they visited. His eldest children, as a consequence of that trauma, refuses to visit.

46. There is a lawful business that is carried on by the applicant which is suffering significant financial loss and there is, as earlier stated, the deterioration of the wife's mental health.

47. Two of the co-offenders have been granted bail. The Court as presently constituted dealt with a variation to Mr Bazouni's bail which, from memory - and I hasten to add I am not sure the memory is reliable in this sense - was granted by Hamill J.

48. The applicant states that the bail concerns can be mitigated by the conditions that have been suggested. I am not sure that that mitigates the bail concerns, but I am sure that the conditions that have been proposed ameliorate the unacceptability of the risk to the point where, in my view, the applicant does not pose an unacceptable risk to society on the conditions that have been suggested.

49. In all of those circumstances, it seems to the Court that the unacceptability of the risk has been sufficiently ameliorated by the conditions proposed. The applicant does not pose an unacceptable risk and bail is granted.

50. In the matter of R v Troy Xerri, for the offence of break and enter a dwelling and inflict grievous bodily harm on a person, which I am told will be withdrawn, assault person intend criminal activity of a criminal group, also to be withdrawn, take and detain in company with intent to get advantage and occasion actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW) and, four, cause grievous bodily harm to a person with intent contrary to s 33(1)(b) of the Crimes Act, bail is granted subject to the conditions prescribed.

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Decision last updated: 30 May 2025