Commissioner of Police, NSW Police Force v Bazzi & Ors

1. [1]

   By a summons filed on 3 March 2021, the Commissioner of Police (the plaintiff) sought a serious crime prevention order pursuant to s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (the Act) against each of the three named defendants. The summons was supported by an affidavit of Detective Bruce Groenewegen of 26 February 2021 which was read without objection. As between the plaintiff and the second defendant, the proceedings have resolved. As between the plaintiff and the third defendant, the plaintiff's application is listed for hearing later this year.

2. [2]

   On 1 September 2021, I made an order against the first defendant pursuant to s 5 of the Act, for a period of 9 months commencing on 1 September 2021, in the terms set out in Annexure A to the order. I also noted an undertaking given by the first defendant in respect of Annexure B to the order.

3. [3]

   At the time of making that order I indicated that my reasons would be provided at a later date. Those reasons now follow.

The Comancheros Outlaw Motorcycle Gang Club

1. [4]

   The Comancheros Outlaw Motorcycle Club (the Comancheros) is an outlaw motorcycle club gang (OMCG). [1] OMCGs and their members consider themselves, and are considered by others, including their rivals, as “outlaws” who are not bound by the same laws as the rest of society. Their members advertise themselves as such by way of various indicia including patches, jewellery and tattoos, and defend their exclusive right to wear and display the indicia of the club to which they belong.

2. [5]

   OMCGs generally have a hierarchical structure, and are governed by rules which are often enforced by violence. Their members are often involved in the commission of serious criminal activity including murder, drug manufacture, cultivation and distribution, organised property theft, fraud, violence, extortion, intimidation, riot, affray, corruption of justice and weapons-related offences. OMCGs are recognised by law enforcement agencies throughout Australia, and in various parts of the world, as organised criminal groups, the members of which pose a significant threat to public safety. [2]

The first defendant

1. [6]

   The first defendant has been associated with the Comancheros since 2009. There is evidence to support the conclusion that he: [3]

2. [7]

   The first defendant has been convicted of a number of criminal offences, including the supply of prohibited drugs. It is alleged that he has been involved in other serious crime related activity involving violence. He has been the subject of a firearms prohibition order [4] and has, since 2014, been a close associate of Mark Buddle, identified as the International Commander of the Comancheros since at least 2014. [5]

THE LEGISLATIVE SCHEME

1. [8]

   Section 5(1) of the of the Act is in the following terms:

The steps to be taken in considering whether to make an order

1. [9]

   The steps to be taken in determining whether to make an order pursuant to s 5 of the Act were set out in Vella v Commissioner of Police (NSW). [6] Although the first defendant did not oppose the making of an order, it remains necessary for me to consider those various steps in order to be satisfied that the order sought is appropriate.

The first defendant’s age

1. [10]

   Section 5(1)(a) requires that any natural person against whom an order is sought be 18 years or older. [7] There is no issue that this requirement is met.

The first defendant’s conviction for, or involvement in, serious crime related activity

1. [11]

   Pursuant to s 5(1)(b), I must be satisfied that the first defendant has been convicted of a serious criminal offence, or has been involved in serious crime related activity for which he has not been convicted of a serious criminal offence. In Vella it was observed [8] that this step involves looking backwards, and focussing upon the person's past conviction(s) for a serious criminal offence, or past involvement in serious crime related activity.

2. [12]

   The term “serious criminal offence” is defined in s 3(1) the Act as having the same meaning as that which is given to that term in the Criminal Assets Recovery Act 1990 (NSW) (the CAR Act). Section 6(2) of the CAR Act defines a “serious criminal offence” as:

3. [13]

   The term “drug trafficking offence” is defined in s 6(3) of the CAR Act to include an offence contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act) of supplying a prohibited drug.

4. [14]

   The first defendant has been convicted of supplying prohibited drugs, contrary to s 25 of the DMT Act, for which he was sentenced to a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 2 years. [9] In those circumstances, the requirement in s 5(1)(b) is satisfied. It is therefore not necessary for me to determine whether he has been involved in any serious crime related activity for which he has not been convicted, and I make no finding in that regard.

The likelihood of the first defendant’s involvement in serious criminal activity

1. [15]

   The third step, arising from s 5(1)(c) of the Act, requires me to assess whether there is a real likelihood, or in other words a real and significant risk, that the first defendant will be involved in serious crime related activities. [10] It is important to emphasise that s 5(1)(c) does not require that I be satisfied that there is a real or significant risk that first defendant will himself commit a serious criminal offence, only that there is a real likelihood that he will be involved in serious crime related activities.

2. [16]

   The unchallenged evidence of Detective Groenewegen is that:

3. [17]

   As I have indicated, it is not necessary for me to determine whether there is a real or significant risk that the first defendant himself will commit a serious criminal offence. In that respect, I make no finding. However, on the basis of the evidence to which I have referred, I am satisfied that there is a real and significant risk that the first defendant will be involved in serious crime related activities.

Preventing, restricting or disrupting the first defendant’s likely involvement in serious crime related activity

1. [18]

   The fourth step, which is also set out in s 5(1)(c), requires the Court to consider whether the facts establish reasonable grounds to believe that the order sought would have the effect of preventing, restricting or disrupting the first defendant’s likely involvement in serious crime related activities. This requires the Court to survey the range of possible orders and to consider whether there is a real likelihood that the order will prevent, restrict, or disrupt his likely involvement. The words “prevent”, “restrict”, and “disrupt” are not defined, and bear their ordinary meaning. This includes a result that is short of entire prevention, but which limits the extent of the person's likely involvement in serious crime related activity. [15]

2. [19]

   The proposed conditions of the order sought are directed towards (inter alia) prohibiting the use of an alias by the first defendant, restricting methods of communication with others, restricting his possession of cash and his conduct of bank accounts, and restricting those with whom he may associate. In these circumstances, I am satisfied that the making of the order sought would protect the public in the manner contemplated by s 5(1)(c).

The necessity for the order to be appropriate

1. [20]

   Section 6(1) of the Act requires that any prohibitions, restrictions, requirements and other provisions ordered be such as the Court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the first defendant in serious crime related activities. Although s 6(1) of the Act provides that the Court “may” impose restrictions that it considers appropriate, this is an enabling word with compulsory force when what is sought is the advancement of public justice. [16] The section requires that the order be reasonable and adapted to its purpose. [17]

2. [21]

   It follows from the observations that I have made regarding the nature of the restrictions sought to be imposed that I consider the terms of the proposed order to be appropriate.

Should an order be made?

1. [22]

   Section s 5(1) of the Act empowers, but does not require, the Court to make the order. The fulfilment of the statutory conditions described in the steps above confers a discretion to make an order. [18] In light of the evidence in the present case to which I have referred, there is no reason why the order sought should not be made. Counsel for the first defendant did not submit to the contrary.