A former bikie boss will remain behind bars after failing to convince a judge he has reasonable prospects of successfully challenging a jail sentence imposed over an "unequivocally offensive" phone rant.
Mohammed Nchouki, 42, was refused bail in the ACT Court of Appeal on Thursday.
The Calwell builder and one-time Canberra Nomads president is currently serving a five-month jail sentence for an offence of using a carriage service to menace, harass or offend.
Justice David Mossop imposed the prison term in the ACT Supreme Court after police, who had Nchouki's phone tapped, recorded him mouthing off to younger brother Jomal.
Both brothers had been arrested by the same senior constable in the lead-up to the May 2021 tirade, during which Nchouki unleashed a barrage of expletives about the officer.
"Brother, you gotta understand, that f---in' dog who is listening to us right now, that [officer's name], that cocksucker, I'm gonna find his wife and I'm gonna f--- her," he said.
"You understand? That putrid piece of f---in' shit wants to f---in' make us look like dogs. He knows we're more solid than that motherf---er ever will be, you understand?"
Nchouki, whose tone in the phone call has previously been likened to that of a "wannabe gangster in a B-grade film", also spoke of his desire to "cave [the officer's] f---in' head in".
The former bikie boss pleaded guilty on the basis he had believed police were "probably" intercepting his calls at the time.
He admitted he had therefore been reckless about whether the officer in question would hear his comments.
Under the terms of the sentence ultimately imposed by Justice Mossop, Nchouki was to be released on a recognisance order after serving three months of his jail term behind bars.
However, he has appealed and argued he should be freed sooner than his current release date in early April.
His notice of appeal alleges Justice Mossop imposed a "manifestly excessive" sentence and made three other errors, including factual findings that were not open on the evidence.
Nchouki also applied for bail, asking that his sentence be stayed until the appeal hearing.
Prosecutors agreed with Nchouki's lawyers that the appeal would be of no value or importance if his sentence was not stayed, given it was unlikely to be heard before April.
That meant the real issue for Justice Belinda Baker to determine was whether Nchouki's appeal had reasonable prospects of success, without which bail must be refused.
On Thursday, Justice Baker said she was not satisfied there were reasonable prospects.
Addressing the claim the sentence was excessive, she noted Justice Mossop's finding that Nchouki had little remorse and poor prospects of rehabilitation.
The judge also said barrister Steven Whybrow SC, representing Nchouki, had not established reasonable prospects of proving any of the factual findings were forbidden.
In relation to Nchouki's complaint that Justice Mossop had incorrectly categorised the offence as being in the mid-range of objective seriousness, Justice Baker disagreed.
"The remarks were unequivocally offensive, harassing and menacing," she said.
"They were made not only in respect of [the officer], but also his wife.
"They included a threat of serious violence against [the officer], and a threat of sexual violence against his wife.
"Whilst [Nchouki] did not know for certain that his remarks would be heard by [the officer], he was aware that members of the [Australian Federal Police] were probably listening to his calls, and that if this was the case, the content of the call would likely be brought to [the officer's] attention."
Justice Baker was also not persuaded by the final ground of Nchouki's appeal, which relates to the principle of totality.
While she therefore dismissed the bail application, the judge invited Nchouki to seek an expedited appeal hearing in the hope of getting a court date before his scheduled release.
