R v Naizmand

1. [1]

   HIS HONOUR: Ahmad Naizmand makes a release application. He is charged with five offences under s 104.27 of the Criminal Code 1995 alleging contravention of a control order issued by the Federal Court of Australia on 30 November 2015. The maximum penalty for each offence is 5 years imprisonment and/or a fine of $102,000.

2. [2]

   An offence under s 104.27 is a “terrorism offence” as defined by s 3 of the Crimes Act 1914, being an offence against Part 5.3 of the Criminal Code. Section 15AA of the Crimes Act provides that bail must not be granted to a person charged with a terrorism offence unless the Court is satisfied that “exceptional circumstances exist to justify bail”.

3. [3]

   The application is opposed.

4. [4]

   The applicant contends that the existence of special circumstances is satisfied in his case by reason of the existence of one, or a combination, of the following factors:

   1. (1)

      The seriousness of the offences.

   2. (2)

      The prospect of significant delay.

   3. (3)

      His onerous custodial conditions.

   4. (4)

      His subjective circumstances.

Background

1. [5]

   The applicant was arrested on 29 February 2016. He was at that time subject to a control order which included the following restriction:

2. [6]

   It is alleged that between 11 January 2016 and 24 February 2016 the applicant accessed electronic media depicting or describing propaganda or promotional material for a terrorist organisation, or activities of or associated with Islamic State, or explosives, suicide attacks, bombings or terrorist attacks.

3. [7]

   The applicant has a previous conviction for using an Australian passport that was not issued to him. After his own passport had been cancelled on 1 July 2013, the applicant used his brother’s passport to travel to Dubai on 6 August 2014. He was convicted in relation to that offence on 2 February 2015 and placed on a recognizance to be of good behaviour for a period of twelve months expiring on 3 February 2016. The first of the alleged offences with which the applicant is now charged occurred while he was still on that recognizance.

“Exceptional circumstances”

1. [8]

   The expression “exceptional circumstances” is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what are looked for are circumstances that are or that appear to be an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics.

2. [9]

   This can be shown by example. In a majority of the United States, certain crimes remain subject to the imposition of sentences of capital punishment. By definition, only the most serious crimes attract this penalty. However, these sentences are regularly carried out, even though large sections of the population of the United States take exception to capital punishment in any circumstances. The frequency with which these executions occur renders them unexceptional, even if the notion of capital punishment or the State sanctioned taking of a person’s life might seem to most people to be unacceptable in a civilised society. Capital punishment is commonly administered in the United Sates and is not for that reason an exceptional circumstance. Circumstances that occur regularly or frequently, even if wholly unacceptable, are hardly exceptional.

3. [10]

   In Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8, Osborne J commented upon the operation of s 15AA as follows:

4. [11]

   These comments were endorsed by Studdert J in R v Khaled Cheikho (Unreported, Supreme Court of New South Wales, 15 May 2006).

5. [12]

   In R v Young [2006] NSWSC 1499, Johnson J said this at [20]:

6. [13]

   In the case of Paul Darren Mulvihill, Davies J on 11 October 2012 considered that the applicant had demonstrated exceptional circumstances, being a combination of the particular nature of the offence, the difficulty of the custodial conditions, both for the preparation of the applicant's defence and the ability to deal with his family law proceedings, and the stringency of the proposed bail conditions. His Honour assessed the strength of the Crown case to be "a moderate to a moderately strong one" on the available material. Price J came to a similar view when considering an application for bail by the same applicant following its original revocation for a breach of one of the conditions imposed by Davies J: see R v Mulvihill [2013] NSWSC 1190.

7. [14]

   In R v NK [2016] NSWSC 498 at [26], Hall J summarised the applicable principles as follows:

8. [15]

   His Honour also considered the concept of exceptional circumstances in the particular context of s 15AA of the Crimes Act 1914. His Honour said this:

The applicant’s submissions

1. [16]

   The applicant contended that the offences with which he has been charged are not serious. If I understand that submission correctly, the applicant asserts that his particular alleged offending is at the lower end of seriousness for offences of the type in question. For example, the applicant’s breaches consist in his viewing videos on YouTube that were, by reason of the restrictions to which he was subject under the control order, proscribed. In other words, access to the videos in question is not otherwise illegal or prohibited for members of the general public and the only alleged illegality in his case arises from the restrictive terms of the control order. In a slightly different way, the applicant contended that the objectionable or extravagant subject matter of the videos in question could not and did not reliably inform the seriousness of the particular alleged offending in his case. His alleged breaches of the control order were unrelated to the content that was viewed on YouTube as opposed to access to the site at all. Moreover, the applicant contrasted his alleged conduct with quite different allegations such as those that might involve obtaining or possessing weapons or explosives or the means to create them. For example, he submitted that, to the extent of anything the applicant did in alleged breach of the restrictions, no damage occurred to anyone and no physical loss was sustained.

2. [17]

   The applicant also contended that having regard to the fact that the maximum penalty for the offences is 5 years imprisonment, the alleged offending was not serious when compared with other offences in general or terrorism offences in particular. He contended in a related sense that a custodial sentence was by no means a foregone conclusion in the particular circumstances of this case if he were ultimately to be convicted of the offences or any of them.

3. [18]

   The applicant was arrested on 29 February 2016 and has remained in custody since then. It seems likely that he will not receive a date for his trial, which will probably be in the District Court at Parramatta, until sometime around June or July of 2017. I hasten to observe that there is no reliable evidence before me to support that prediction and that the Crown contends that a trial somewhere around February next year is more likely.

4. [19]

   In either case, according to the applicant, he will have been in custody on remand for something approaching and possibly exceeding 12 months before his charges are disposed of finally. He submits that delay of that nature is an unacceptable and wholly extraordinary circumstance.

5. [20]

   The applicant’s security classification has resulted in him being housed in a maximum security facility. His association with other inmates is limited to four other prisoners. His exercise time is restricted. When he is outside his cell he is escorted by no less than four prison officers or corrective services personnel. In these situations, he is routinely handcuffed and his feet are always shackled. That procedure is universally adopted, even in circumstances as apparently benign as walking along the corridor to use the phone.

6. [21]

   In association with these conditions, the applicant has not spent time in custody before. He is 21 years of age and previously worked as a gyprocker in the construction industry. With the exception of his conviction for travelling without proper travel documents, the applicant has not previously offended. By implication, the conditions under which the applicant is being held are an automatic and mechanical manifestation of his security classification, which he maintains is objectively and unfairly disproportionate to the actual risk that a person of his age and background poses in fact.

7. [22]

   The applicant is married. His wife is not prepared to travel to Goulburn to visit him if not in the company of his mother or other relatives. The people with whom his wife would be prepared to make the journey have themselves been barred from visiting the applicant, with the associated result that he receives no visits from his wife at all. Telephone calls are all regularly monitored so that the applicant has no ability to communicate privately with his wife.

8. [23]

   The applicant was earning something in the order of $700 to $800 per week. He was the major source of income for his family. His imprisonment means that his wife suffers from financial hardship for as long as he remains unable to work.

Crown submissions

1. [24]

   The Crown opposes the grant of bail upon the basis that the applicant presents an unacceptable risk of non-appearance, of committing a serious offence and of endangering the safety of individuals or the community. Section 15AA creates what is in effect a rebuttable presumption against bail for any person charged with a terrorism offence. The onus rests upon the applicant to satisfy the Court affirmatively that such exceptional circumstances exist. Even though that does not preclude the grant of bail in all cases, it poses an extremely high hurdle for the applicant to get over and he has not demonstrated that he has done so in the present case. The Crown maintained that there were no features that were out of the ordinary, whether alone or in combination, and no compelling subjective features that amounted to exceptional circumstances.

2. [25]

   Control orders are only issued in circumstances where a judicial officer has been satisfied that such an order is necessary to protect the public from a terrorist act, or to prevent the provision of support for such an act. The Crown contends that it therefore follows that any contravention of such an order is a serious matter. That is said to be compounded in the present case by reason of the applicant’s alleged multiple breaches.

3. [26]

   Other features that are said to compound the seriousness were as follows:

4. [27]

   The YouTube videos viewed by the applicant depicted material consistent with extremism and propaganda produced on behalf of proscribed terrorist organisations such as Islamic State and affiliated groups. They contain audio and imagery of weaponry including assault rifles, machine guns and grenades together with messages encouraging the extermination of so-called non-believers. They also contain material that espouses the virtues of violent struggle and the commission of attacks on non-believers.

5. [28]

   The applicant has been aware since as early as mid-2014 that he was of interest to law enforcement authorities. He was made aware of the reason for the control order in 2015 and of the seriousness with which the authorities and the community viewed his conduct, as well as the conduct and activities of his associates. The Federal Court determined that there was sufficient evidence on the balance of probabilities that making the orders would substantially assist in the prevention of a terrorist act. The orders expressly required the applicant to comply with them. These matters notwithstanding, the Crown alleges that the applicant repeatedly breached the control order over a six week period.

6. [29]

   The Crown contended that there has been no delay in this case since the applicant’s arrest. The brief of evidence consists of one volume of material and has been served in accordance with the rules. The matter is listed for committal at Burwood Local Court on 8 August 2016, which was the earliest date suitable to the applicant’s legal representatives. The matter is factually and temporally confined. The evidence consists essentially of electronic surveillance.

7. [30]

   In Raad v DPP [2007] VSC 330, the applicant had been in custody on remand for two years whilst awaiting trial on terrorism charges. The trial was listed to commence in three months with an estimate of six months. Bongiorno J accepted that the applicant’s conditions of custody were extremely onerous. There was also psychiatric evidence of the applicant being at risk of falling into a depressive state as a result of his custodial conditions and his circumstances in general. There was an associated risk that the applicant might become suicidal. The applicant had close family ties and there was adequate security being offered. A primary argument was that the Crown case was weak.

8. [31]

   In respect of delay, his Honour found that it could still be many months before the case was concluded. However, his Honour held that this was not an exceptional circumstance, saying:

9. [32]

   The Crown submitted that there was no relevant delay in this case.

10. [33]

    In Haddara the accused was held in custody in significantly confined conditions with restrictions on visitation and communication, in circumstances where the question of adequate access to legal representation was an issue. It was held in that case that those matters did not amount to exceptional circumstances.

11. [34]

    In R v Mulahalilovic (Unreported, Supreme Court of New South Wales, Rothman J, 1 August 2006) the applicant emphasised the delay that was likely before his case would be finalised and the associated difficulty of preparing his case, “especially in the extraordinary circumstances of the size and complexity of the prosecution brief”. Rothman J accepted that the circumstances surrounding the applicant’s incarceration created a real difficulty for him, but found that this was not exceptional either alone or in combination with other matters.

12. [35]

    In R v Azari (Unreported, Supreme Court of New South Wales, Garling J, 3 September 2015), the accused faced a number of terrorism-related charges under the Criminal Code and one count of conspiracy to commit murder under the Crimes Act 1900. He had been in custody for approximately one year. With respect to his conditions of custody, Garling J said:

13. [36]

    The Crown submitted that the applicant’s custodial conditions in this case were not unique and could not amount to exceptional circumstances.

14. [37]

    The strength or otherwise of the Crown case is a relevant matter to be taken into account. Here the Crown submitted that its case was strong. The alleged breaches relate to the access to proscribed material on an electronic device owned or possessed by the applicant. The offending access is to be found between other legitimate uses of the device that are inferentially attributable to the applicant. Taken at its highest for present purposes, the case against the applicant is formidable.

Consideration

1. [38]

   The legislative provisions at play in this application operate in effect to exclude bail as the default position, while simultaneously leaving the door ajar in limited circumstances. That is undoubtedly a harsh regime but its severity is not amenable to discussion or criticism in an application such as the present. The application and legitimacy of what amounts to a presumption against bail are to be taken as given. The single focus of attention is the question of whether or not the applicant can demonstrate the existence of exceptional circumstances.

2. [39]

   The evidence in this application has reinforced the notorious fact that prisoners on remand awaiting trial on terrorism related charges are treated differently. There may be more than one reason for that, but its present relevance lies in appreciating that all such prisoners receive the same treatment. It is therefore to be expected that a person facing prosecution for alleged breaches of a control order will be subject to custodial conditions that include limited association, shackling and constant surveillance, and all of the other onerous and intrusive conditions and constraints of the type outlined by the present applicant.

3. [40]

   The applicant’s custodial conditions are therefore not unique. They are on the contrary widespread and commonplace. They are not exceptional. As I have indicated, the question is not whether some members of the community might take exception to the applicant’s restricted custodial circumstances. The question is whether or not in the wider population of remand prisoners facing similar charges the applicant’s custodial conditions alone or together with other factors amount to exceptional circumstances.

4. [41]

   The delay facing the applicant is also not in my opinion unique. Delays of the order potentially confronting the applicant as he awaits his trial are unfortunately quite common. Whereas a twelve or eighteen month delay on remand might in a different situation support a show cause requirement, it does not amount in my view to an exceptional circumstance of the type that the applicant must demonstrate here.

5. [42]

   Nor is the applicant’s subjective case particularly unusual. It is regularly asserted in applications for bail that an applicant’s family are suffering hardship because the principal breadwinner is unable to work to support them. So much is understandable and credible. It is not, however, exceptional. It is on the contrary a regular and predictable consequence of an inability to secure release on bail. Neither are deaths in families exceptional. I accept immediately that in the present case the death of the applicant’s father-in-law will have placed significant added pressure upon his wife during his enforced absence. But that circumstance is clearly not exceptional.

6. [43]

   I am mindful that the applicant is only 21 years of age and that this is his first time in custody. Those are matters that weigh heavily in this case and serve to place the difficult custodial conditions to which he is exposed into a very particular context. I accept that the combined effect of the applicant’s relative youth and relatively unremarkable criminal history are mismatched to incarceration as a suspected terrorism offender. I am once again unable to conclude that these things amount to exceptional circumstances. In the relatively limited experience of terrorism offences with which this country has had to deal, the treatment which the applicant is receiving whilst awaiting trial on remand is not out of the ordinary. The circumstances of his incarceration are not exceptional.

7. [44]

   Finally, the Crown case appears to me to be quite strong. In expressing that opinion I should hasten to observe that the evidence before me does not descend into the level of detail that would be necessary to form that opinion as a concluded view. I have assessed the apparent strength of the Crown case by reference to my understanding that the alleged breaches by the applicant will stand or fall upon the evidence derived from a phone or computer in his possession when the offending activities occurred. I accept that there may well be an exculpatory explanation for this electronic footprint, but I have no material touching that possibility and I am required in any event to take the Crown case at its highest. The combination of charges also suggests that the offending conduct was not isolated or accidental.

8. [45]

   Even taking all of the matters upon which the applicant relies into consideration together, I remain satisfied that they do not amount to exceptional circumstances sufficient to justify a grant of bail.

Conclusions

1. [46]

   The applicant has not demonstrated that exceptional circumstances exist in accordance with s 15AA of the Crimes Act 1914. His application for bail is therefore dismissed.