SZH v The Queen

[2021] NSWSC 95

Supreme Court

New South Wales

Medium Neutral Citation:

SZH v R [2021] NSWSC 95

Hearing dates:

15 February 2021

Date of orders:

17 February 2021

Decision date:

17 February 2021

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

Application for Bail refused

Catchwords:

CRIME – Bail – Show Cause – Previous conviction for similar offending – Bail refused

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Drug Misuse and Trafficking Act 1985

Suppression and Non-Publication Orders Act 2010

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

The Crown
SZH (Applicant)

Representation:

Counsel:
Ms Ghabrial (Applicant)
Mr A Brookman (Crown)

Solicitors:
Criminal Law Group (Applicant)
Director Public Prosecutions (Crown)

File Number(s):

2020/361346

Publication restriction:

Court Suppression and Non-Publication Orders

Judgment

1. On 3 December 2020, SZH (“the applicant”), was arrested and charged with a series of offences, which are set out in more detail below, and which centre upon the supply of prohibited drugs. She was taken into custody at that time and has remained in custody ever since.

2. Shortly after entering custody, the applicant made an application pursuant to s 8 of the Bail Act 2013 for release on bail.

3. The Crown opposed the application. The application was heard on 15 February 2021.

Non-Publication Order

4. It will be necessary in this judgment to consider the nature and strength of the Crown case against the applicant. This is to be done by reference to summaries of evidentiary material provided by the Crown. Those summaries may not ultimately be admitted in evidence at the applicant’s trial.

5. In order to prevent prejudice to the proper administration of justice, and in order to ensure a fair trial of the applicant, the Court must make a suppression order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010. In so doing, I take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. However, in an interlocutory application such as this one, it is also important to take steps to ensure that a fair trial will take place.

6. Accordingly, the Court has ordered that the name of the applicant and any material tending to identify her be suppressed. Such order is made until the conclusion of the trial of the applicant, or further order of the Court, whichever first occurs. I have assigned the pseudonym SZH to the applicant.

The Applicant

7. The applicant, SZH, is presently 33 years old. She has a history of past offences. That history commenced in 2009. Since then the applicant has appeared in various local courts on 16 separate occasions. These occasions have largely involved offences relating to possession of prohibited drugs, receiving or having custody of stolen goods and other offences connected with, or arising from, possession or low-level supply of drugs.

8. On 4 April 2014, the applicant pleaded guilty to two significant indictable drug offences – one was supplying a prohibited drug, heroin, at greater than the indictable quantity. For this offence she was sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years. She also faced a charge of supply a prohibited drug (methylamphetamine) in greater than the commercial quantity. For this offence she was sentenced to a term of 5 years imprisonment with a non-parole period of 3 years and 6 months. The sentences, although starting on different dates, were effectively entirely concurrent. An appeal to the Court of Criminal Appeal was dismissed.

9. It is apparent from the Agreed Facts on sentence that the applicant was involved with the supply of these drugs on a regular and ongoing basis on many occasions over approximately a three-month period. During this, she resided at and conducted the drug supply from a number of different hotels. The facts showed the applicant engaging in the supply of drugs to a broad range of users almost every day throughout that three-month period. It was an agreed fact that in the course of these drug supply activities the applicant received at least the sum of $118,180.

10. The applicant was released from custody on parole on 30 April 2016. Her parole concluded on 30 April 2018.

11. According to the Criminal History Report which was tendered, the applicant has on three occasions failed to appear in court in accordance with a bail undertaking, and has on another occasion been put before the Local Court for a breach of her bail conditions. However, the last of these occurred in August 2011, and notwithstanding that the applicant has been before the Court since that time in respect of serious offences, there have been no further failures by her to comply with any bail conditions.

12. At the time of her arrest, the applicant was unemployed and was the sole lease holder of an apartment in Guildford. She commenced to lease that apartment shortly after she concluded her sentence in 2018.

13. Little is known about the applicant’s background and upbringing. She has a mother who lives in an apartment in another suburb in Sydney’s west. Her mother is supportive of her and has offered to provide a surety.

14. It appears that the applicant had a male partner at the time of these offences, who was not only her domestic partner, but who also has been charged with respect to these offences.

The Charges

15. The applicant faces two groups of charges.

16. The first group include a charge that she supplied the prohibited drug, methylamphetamine, on a single occasion at Olympic Park. When arrested on that occasion, the Police located two resealable bags containing contents later identified as methylamphetamine, the sum of $7,750.00 in cash in her wallet, and nine mobile telephones.

17. The applicant is also charged with recklessly dealing with the proceeds of crime, being the sum of money found in her wallet.

18. The principal group of charges, the second group, consist of three charges contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, of supplying, respectively, methylamphetamine, heroin and MDMA in a quantity which is greater than the indictable quantity but less that the commercial quantity of each drug.

19. The applicant is further charged with an offence against s 25(2) of the Drug Misuse and Trafficking Act of supplying a commercial quantity of a prohibited drug, gamma-Butyrolactone (“GBL”).

20. She also faces a charge contrary to s 193C(1) of dealing with property being the proceeds of crime. That property is the sum of AUD$165,345. She is charged with an offence contrary to s 192K of the Crimes Act 1900 of possessing identification information to commit or facilitate the commission of an indictable offence because she had in her possession multiple forged NSW driver’s licences. Finally, she is charged with an offence against s 192L of the Crimes Act of being in possession of equipment which enabled her to make identification information so as to commit an indictable offence of fraud. She possessed a printer and NSW State holograms capable of being used to make NSW drivers licences and Medicare cards.

Prosecution Facts

21. Because the applicant has not indicated any plea or specific issue with any of the facts, it is appropriate to summarise the facts which are put before the Court by the prosecution in the form of a Police Facts Sheet.

22. The activities of the applicant and her partner were the subject of observation by the Police and by cameras installed covertly for that purpose for a period between 21 October 2020 and the day of their arrest on 3 December 2020.

23. The applicant was observed on many occasions to enter a storage area which was a locked cage and both placing items into that storage area and removing them from it. The applicant was observed pouring liquid from a larger bottle of about 1.5 litre into two smaller bottles, and then leaving with those smaller bottles. The observations included seeing two Hyundai motor vehicles, one red and one grey. The grey vehicle is registered to the applicant. The other vehicle, the red one, is registered to a car hire company. The applicant was observed entering, placing and removing items from both vehicles. She was recorded driving both vehicles.

24. The covert camera recorded the applicant moving a shoebox-sized item from one vehicle to the other. She also took similar items up to the apartment. The applicant’s male partner was recorded removing a black bag from under the bonnet of the grey Hyundai which the applicant owns.

25. On 3 December 2020, the Police executed a search warrant at the apartment. Search warrants for each of the two vehicles were also executed. The caged storage area was also searched. Besides locating drugs which have given rise to the charges, the Police located a number of other items consistent with drug supply such as scales, large spoons, containers used to weigh drugs and a number of small, clear, resealable bags. In the boot of the red Hyundai, the Police located a black backpack which contained plastic containers of methamphetamine, ecstasy and heroin. The grey motor vehicle contained a 1.5 litre bottle of GBL. A half-litre bottle of GBL was found in the freezer of the apartment.

26. Whilst searching the apartment, the Police located a fraudulent NSW driver’s licence in a false name bearing the image of the applicant and her current residential address and her correct date of birth. The Police also located a number of fraudulent documents in a false name with the image of the applicant’s male partner. A camera which was being used to create the false documents was found and seized.

27. In the black backpack located in the applicant’s motor vehicle, the Police found nine Visa Cards in various names, none of which belonged to the applicant or her partner; seven Medicare cards which were not in the name of the applicant or her partner; 200 driver’s licence holograms and 150 blank cards. The Police also located 22 driver’s licences in false names.

28. When the Police searched under the bonnet of the grey Hyundai which the applicant owned, they located a black bag with $165,345 in cash.

29. The observations of the applicant over a period of time, the items which were found in her possession and the items found in her motor vehicle together provide a very strong Crown case against her. That Crown case may also extend to her partner, but I do not need to consider that question.

30. If the evidence described in the Police Facts is adduced at trial, and in the absence of any other evidence which may explain those facts, it is inevitable that the applicant will be found guilty of the offences with which she is charged.

Show Cause

31. The provisions of s 16B(1)(f) of the Bail Act, prescribe an offence under the Drug Misuse and Trafficking Act of supplying a commercial quantity of a serious drug as a show cause offence. The offence against s 25(2) of the Drug Misuse and Trafficking Act with respect to the commercial quantity supply of GBL is a show cause offence.

32. The provisions of s 16A of the Bail Act provide that the Court must refuse bail for a show case offence “… unless the accused person shows cause why his or her detention is not justified”.

33. It is only after considering the issue of whether or not cause has been shown that the bail authority makes a decision in accordance with the unacceptable risk test which applies to all offences: s 16A(2) Bail Act.

34. Although the Court is obliged to first consider whether the applicant has shown cause, similar matters may be relevant for the Court’s consideration on this issue as well as on the unacceptable risk test.

35. As a matter of general application, it is clear from wording of the show cause test that there is an onus, on the balance of probabilities, falling upon an applicant to persuade the Court that their detention is not justified. This does not require any applicant to show special or exceptional circumstances which, as the provisions of s 22(2) of the Bail Act make it plain, is a separate and distinct matter from showing cause why detention is not justified.

Applicant’s Submissions

36. The applicant, in seeking to address the show cause requirement, pointed to a number of matters as indicating that she had shown cause.

37. Firstly, the applicant drew attention to the fact that the charges which she is facing are presently at an early stage of the criminal procedure. It was noted that the matter is next listed for mention on 4 March 2021 at the Local Court at Parramatta for confirmation of the service by the Police of the Brief of Evidence. The applicant, in particular, drew attention to a statement by the Officer in Charge of the investigation made on 28 January 2021, that the Police had only served a part of the Brief of Evidence, that not all of the drugs which had been seized have been analysed and that further analysis was outstanding, in particular, of computers, electronic storage devices and mobile telephones which were seized during the search.

38. The applicant drew attention to the statement of the Officer in Charge that additional statements from police officers present have not yet been compiled and served and that expert certificates with respect to the drugs would not be served until all drug examinations had been completed.

39. The applicant submitted that upon the assumption that the proceedings were fully defended, it was unlikely that the applicant would stand trial in the District Court for a period of at least 12 months.

40. The Crown did not suggest that such a prediction was inaccurate.

41. Of course, if the matter was not to proceed to a fully defended trial but there was to be a plea of guilty to some or all of the offences, the applicant could expect that the matter would be completely disposed of within six months.

42. In considering this application, it is better that I proceed upon the basis of the longer time period.

43. The applicant next drew attention to the fact that at the time of the bail hearing, the applicant was pregnant and that her estimated date of delivery is 2 August 2021.

44. The applicant drew attention to material before the Court which noted that the applicant had completed a comprehensive assessment carried out by the Substance Use in Pregnancy Care Co-ordinator, a member of staff of the Drug and Alcohol Services provided by the Justice Health and Forensic Mental Health network. The purpose of that assessment was, with the applicant’s agreement (which had been given), for her to participate in the “Substance Use in Pregnancy Program” which aims to improve the continuity of care for pregnant patients in correctional centres who have illicit drug problems and who are being released into the community.

45. Further material upon which the applicant relied was put before the Court from an officer of the Justice Health Network called a “Connections Transition Co‑ordinator”. That officer explained that the Connections program is a voluntary program which aims to improve continuity of care for patients in correctional centres who are being released into the community. It was described as a “linkage model program” that aims to link patients with relevant health and welfare service providers post-release.

46. The material noted that the applicant was currently engaged with the Connections program which would mean that if she was released from custody, the applicant would receive four weeks post-release outreach phone support from a Connections Transition Co-ordinator who would be able to assist the applicant with linkage to services to address her post-release needs.

47. The Co-ordinator said that the applicant, if released, would need to explore the following services namely drug and alcohol counselling, Community Corrections to address offending behaviour, ongoing counselling and support, the antenatal and substance abuse in Pregnancy Program and the transfer of her care to a GP for ongoing health care.

48. It was also pointed out that she would explore participating in mother’s groups and other family support services.

49. The applicant’s submission was that it was in the applicant’s best interests for her to be able to seek antenatal care in the community, to be able to deliver her baby in the community at a hospital of her choice, to have options with respect to the way in which the delivery is to take place – for example, whether supervised by a specialist medical practitioner or else under the care of a midwife service. As well, the applicant submitted that her own health, including any drug addiction, was best served by her being in the community.

Bail Proposal

50. The applicant proposes that if released on bail she would live with her mother at her apartment in western Sydney. She offers to remain, in effect, under house arrest except if leaving the apartment in the company of her mother for a number of identified purposes, she offers conditions which would restrict mobile phone usage and preclude her from using the Internet. She also offers enforcement conditions for drug and alcohol abstinence, her house arrest condition, her communication device condition and she offers a surety of $50,000 with security.

Show Cause Test – Discernment

51. The Crown case is, I am persuaded, a very strong one. If convicted, particularly in light of her previous terms of imprisonment for similar offences of supplying prohibited drugs, including one of supply of a commercial quantity of prohibited drugs, it is likely that the applicant would face a substantial term of imprisonment and probably one longer than that which she previously served.

52. I recognise that there is a delay of around 12 months before the applicant will come to trial, if the matter is to be defended. The Crown submitted that the delay to date has not been out of the ordinary, the Police investigation appears to be proceeding appropriately, and that whilst the delay is longer than is desirable it is neither out of the ordinary nor unacceptable.

53. This is not the first time that the applicant will have spent time in custody, and there are no factors identified with respect to the applicant and the custodial conditions under which she is presently held, which would suggest a particular reason for her detention to be seen as unjustified. There is no material which suggests any difficulty for the applicant in preparing her defence. There are no suggested consequences to the applicant’s family members, or anyone else with whom she is close, of being particularly disadvantaged by the applicant being held in custody.

54. The submission with respect to the applicant’s pregnancy is one which supports her release. She submitted that, speaking generally, it is preferable for an applicant in her position to give birth to their child in the community at facilities of their choosing. On the other hand, there are no features of the applicant’s pregnancy which have been identified in the material before the Court which would suggest that it is in any way a medically complicated one, nor that her baby is suffering from any particular difficulty which would require specialist attention either prior to or during her confinement. Shortly put, subject to her substance addiction, the extent of which is not explored in the evidence, there is no reason to think that the applicant, who is otherwise healthy, will not be able to undergo her pregnancy and the delivery of her child in a medically uncomplicated way.

55. It is not suggested that the facilities available for pregnant women in custody and for the delivery of their child are in any way inadequate – as a matter of generality or specifically with respect to this applicant. In other words, there is nothing standing in the way, on the material before the Court, of the applicant having an uncomplicated pregnancy and delivery of her baby. Were it otherwise, serious consideration would need to given about the availability of appropriate and adequate medical care and treatment. That issue does not, on the material before the Court, arise.

51. To the extent that the applicant has been assessed as suitable for, or else is participating in the Substance Use in Pregnancy Program, it seems on the material before the Court that the Program remains available to her whilst in custody. A transition into the community can be managed appropriately for her.

52. There is every reason to conclude on the material available that, to the extent that the applicant has an ongoing substance addiction, it can be adequately addressed whilst in custody.

53. It is now necessary to make an evaluative decision having regard to all of these matters as to whether the applicant has shown cause why, in the particular circumstances of this case, her detention is not justified.

54. In my opinion, she has not. The applicant is a mature woman of 33 years of age with a history of having been convicted for and having spent time in prison for similar offences. The Crown case is a strong one. She was found with drugs and a large amount of cash, together with false identity documents and observations of her participation in the drug dealing occurred over a period of time. Whilst it is undesirable that she will remain in custody for a period of about 12 months before her matter is finally dealt with, she has not demonstrated any particular need to be freed from custody.

55. I do not regard the fact that she is pregnant with an estimated date for delivery in about five months’ time, as being of sufficient weight to counteract the seriousness of the charges and the strength of the Crown case.

Conclusion

61. As I am not satisfied that the applicant has discharged her onus of showing that her continued detention is not justified, the application for bail must be refused.

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Decision last updated: 17 February 2021