Benzce v R; Yates v R

HER HONOUR: On 11 February 2015 I determined release applications in these two proceedings. Since the proceedings each involved a show cause requirement under the Bail Act 2013 (NSW) (“the Act”) as recently amended, I reserved my reasons so as to give a disciplined analysis of my understanding of the effect of the new amendments.

Since hearing those two applications I have determined a release application in a third case involving a show cause requirement (where bail was sought for the offence of murder). I have this morning given my reasons in respect of that application. It is convenient in giving my reasons for granting bail on the present applications to incorporate what I there said as to my view as to the proper construction of the provisions introducing the show cause requirement:

I turn against those principles to consider the applications in the present case. In the matter of Dean Yates, the applicant is aged 38 years. He was charged with a series of offences of violence, in the nature of domestic violence. The bail proposal put forward on his behalf was for him to undertake a course of full-time rehabilitation at Benelong's Haven Family Rehabilitation Centre.

The circumstances of the allegations against him plainly gave rise, as contended by the Crown, to a bail concern that there was a risk of his committing a serious offence and a risk of safety to the victim if he was released on bail. For the reasons explained in the passages set out above from the decision I have just given in the matter of M v R, the nature of the offences informs the Court's assessment of those risks. In the present case, the circumstance giving rise to the show cause requirement is the fact that the applicant was subject to parole at the time of the offences and the offences with which he now stands charged include a serious indictable offence.

The proposal for rehabilitation, however, indicates two things. First, the assessment permitting his admission to the facility for residential rehabilitation reveals a willingness to engage with the very issue that gives rise to the risk of committing a serious offence and a risk to the safety of the complainant. Secondly, in my view, the circumstances in which he would be residing at the residential rehabilitation programme themselves mitigate those risk.

For those reasons, adopting the approach I have explained, I was satisfied that the risk identified by the Crown could be adequately mitigated.

The Crown also submitted that there was a risk of non-appearance based on the applicant's background, including his criminal history, the strength of the prosecution case and the likelihood of a custodial sentence being imposed. Although those are always factors to which the Court must have regard, the Court should not do so on the strength of a formulaic approach. I did not think, having regard to the applicant's willingness to engage in rehabilitation, that there was an unacceptable risk of his failing to appear. It was for those reasons that I concluded that the applicant Dean Yates had satisfied the show cause requirement and that he should be granted bail.

Turning to the matter of Jozsef Benzce, the circumstances bear some similarities. The applicant stood charged with a series of relatively serious offences. The application carried a show cause requirement because he had committed or was alleged to have committed a serious indictable offence whilst on bail. It was noted on his behalf that his criminal history showed a finite period of offending, followed by an apparent period of recovery and a relapse explained by the death of his father.

The risk identified by the Crown was one of non-appearance and a risk of danger to the community on the basis of his "issues with illegal drugs". For substantially the same reasons as in respect of Dean Yates, I concluded that those factors, whilst plainly concerns to which the Court must have regard, were adequately mitigated by the drug rehabilitation proposal.

In reaching that conclusion, I do not mean to suggest that the proposal of residential drug rehabilitation will invariably or inevitably address bail concerns of the kind that arose in either of the present cases. However, that is frequently a factor which could readily be regarded as being acutely directed to the issue giving rise to the bail concern, which is also the issue that has triggered the show cause requirement.

It was for those reasons that I concluded that the applicant Joseph Benzce had satisfied the show cause requirement and that he should be granted bail.