Lengthy Compliance with Bail Does Not Justify Relaxation of Bail Conditions

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By Paul Gregoire and Ugur Nedim

On 5 May 2021, NSW police arrested Luke Sparos in relation to the 6 November 2020 shooting death of Samir Marcus, and officers subsequently charged the man with intent to murder and attempting to pervert the course of justice.

The second offence Sparos is facing relates to an incident that happened at Surry Hills Police Station on the day of arrest, which involved the defendant grabbing his phone, which was already in police possession, and throwing it to the floor to stamp on it in an attempt to destroy evidence.

Sparos was refused bail on arrest, and a bail application in court in November 2021 was also turned down.  But on 7 September 2021, NSW Supreme Court Justice Ian Harrison granted bail, while on 3 March this year, Justice Mark Ierace made changes to Sparos’ bail conditions, to tighten the regime he was on.

Justice Harrison ordered 14 of the 15 conditions making up the current regime. And Justice Ierace added one, which involved reasons why the defendant can be ordered to stay at home that includes when reporting to police, court appointments, during emergencies and when attending healthcare.

The imposition of stiff bail conditions has been a concern for climate activists in this state over recent years. Yet when the related offence has dealt with more serious crimes, the suggestion has been that criminals are treated too leniently when on bail for significant offences.

Altering the regime

After Ierace amended the conditions, Sparos’ regime included stipulations on being of good behaviour, on where he was to live, whose care he had been released in, daily reporting to police, situations when he could be told to stay home and a prohibition on drug use.

Further, Sparos must not contact witnesses. He is to wear a GPS tracker. He can’t leave the state or apply for travel documents. He must mind a curfew, and he can only possess one approved phone, while two individuals have put up a bond they must forfeit if Sparos fails to appear in court.

However, since the March amendments to the bail conditions, the case has been postponed on a number of occasions. The defendant made an application to vary bail in July this year, in which he put forward five changes to be made.

The defendant suggested that GPS tracking be removed, that the address he was permitted to stay at be changed, his reporting police station be the closest to his address, that he may leave home alone and that his curfew be between 10 pm and 5 am, unless in the company of three named individuals.

While Sparos put these to the court as an “all or nothing” proposition, he did present a “fallback” position in which he agreed to continued electronic anklet tracking, as long as he be permitted to live at a different address and that he can leave during curfew for employment purposes.

Sparos gave three reasons warranting the changes. These include significant delays in the trial taking place, the reduced bail risk which he predicated upon the lengthy time already spent on conditional liberty and the last reason involved significant changes in the prosecution’s case.

In presiding over the hearing that considered whether to alter Sparos’ bail conditions, NSW Supreme Court Justice Nicolas Chen described the final reason provided for the challenge as a “significant weakening of the Crown case” due to “emerging evidence” suggesting there was a different shooter.

Easing the regime

Section 51 of the Bail Act 2013 (NSW) provides that an “interested person” can submit a variation application to an “authorised justice” for a variation in bail conditions, which can be made by either side of a case, as well as by the NSW attorney general.

In terms of the application, Justice Chen found that he could not accept the proposition that he now presented a reduced bail risk because he’d merely stuck to the regime for nine months, as all this had shown is that he didn’t partake in behaviour that would be considered “unacceptable” on bail.

His Honour neither accepted the reasoning that due to the actual trial having been pushed back until the second half of 2024, Sparos somehow requires an easing of the restrictions he’s being made to observe in order to forego his having to spend the interim period in prison on remand.

Justice Chen also questioned the reasoning around the Crown case weakening because it was beginning to appear that Sparos was not the shooter. The judge explained that the prosecution always held that regardless of pulling the trigger, the defendant was present, and it was done for him.

Further, the case involves the defendant as either having pulled the trigger or been present when the weapon was used. A total of eight shots had been fired. The reasoning behind why Sparos might have shot Marcus involved the latter having attacked by him with a knife whilst on remand in 2019.

The justice further recalled the manner in which the bail regime had been developed. This included the Crown calling for the extra condition to be applied last March, in response to a number of occasions in which Sparos had left his premises under questionable circumstances.

Nothing supports bail variation

When his case finally goes to trial, Sparos will be facing one count of shoot with intent to murder, contrary to section 29 of the Crimes Act 1900 (NSW), which is an offence that carries up to 25 years in prison for those who are found guilty of it.

The defendant is also charged with perverting the course of justice, due to the destruction of his own phone at the police station. This offence sits in section 319 of the Crimes Act, and it carries up to 14 years inside.

And in terms of the proposal to amend his bail conditions, Justice Chen found that there were no reasons pointing to any need for an altering of bail conditions on 17 July 2023. 

In fact, the only change he found was necessitated was to note the officer in charge of the regime had changed.

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