Commonwealth Director of Public Prosecutions v Sadrata
[2022] NFSC 2
•6 December 2022
SUPREME COURT OF NORFOLK ISLAND
Commonwealth Director of Public Prosecutions v Sadrata [2022] NFSC 2
File number: SCC 1 of 2022 Judgment of: WIGNEY J Date of judgment: 6 December 2022 Catchwords: PRACTICE AND PROCEDURE – application for variation to accused’s bail conditions – contemplated travel to Fiji prior to sentencing hearing – considerations in s 25(1) of Bail Act 2005 (NI) – whether accused considered a flight risk – further bail conditions imposed to promote compliance with current conditions – variation made Legislation: Bail Act 2005 (NI) s 25(1)(a)
Criminal Code 2007 (NI) ss 82, 87
Number of paragraphs: 13 Date of hearing: 6 December 2022 Solicitor for the Prosecutor: Ms G Smith for Commonwealth Director of Public Prosecutions Counsel for the Accused: Mr P Rowe Solicitor for the Accused: McIntyres Lawyers ORDERS
SCC 1 of 2022 BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
AND: EMOSI SADRATA
Accused
order made by:
WIGNEY J
DATE OF ORDER:
6 december 2022
THE COURT ORDERS THAT:
1.Conditions 1 and 2 of the accused’s bail conditions imposed on 6 June 2021 be suspended for the period 20 to 27 December 2022, and the accused be permitted to reside during that period at Lot 4, Natokowaqa Street, Lautoka, Fiji.
2.The accused enter into an agreement and deposit acceptable security to forfeit the sum of $2000 if he fails to comply with his bail undertaking.
3.The accused’s daughter, Ms Meresiana Nayagodanu Sadrata, enter into an agreement, without security, to forfeit the sum of $10,000 if the accused fails to comply with his bail undertaking.
4.The prosecutor file and serve any evidence upon which the prosecutor proposes to rely in opposition to the application to withdraw the guilty pleas on or before 13 January 2023.
5.The accused file and serve an outline of submissions in support of the application to withdraw the guilty pleas on or before 20 January 2023.
6.The prosecutor file and serve an outline of submissions in respect of the opposition to the application to withdraw the guilty pleas on or before 27 January 2023.
7.The accused be discharged from the agreement entered into by him upon his return to Australia on 27 December 2022, and the security provided by him in support of that agreement be also discharged.
8.The accused’s daughter be discharged from the agreement to forfeit that she entered into, again, upon the return of the accused to Australia on 27 December 2022.
REASONS FOR JUDGMENT
(Revised from transcript)WIGNEY J:
The accused, Emosi Sadrata, has been indicted on six charges under s 82 of the Criminal Code 2007 (NI) and one charge under s 87 of the Criminal Code. Each of those charges arises out of a single alleged incident of domestic violence that occurred on 6 June 2021 on Norfolk Island.
The accused has pleaded guilty to each of the charges, but has recently applied to the court to withdraw his pleas of guilty to four of the charges, including the more serious offence under s 87 of the Criminal Code. That application is currently listed for hearing on 3 February 2023. The accused has applied to vary his bail conditions so as to permit him to attend his daughter’s wedding in Fiji on 23 December 2022.
The accused’s current bail conditions which were originally imposed by order of the court on 6 June 2021, as identified in the indictment information notice, are as follows:
1.You must live at Unit 5/168 Victoria Road, Punchbowl, NSW.
If you are required to be absent from that address for your employment for more than 24 hours, you must advise the OIC Norfolk Island Police and OIC Bankstown Police, where you will be, and provide evidence, which can be a written roster, or letter from your employer, of your work requirement away from the Bankstown area. You cannot live at another address unless, before you move to the other address, you have the written permission of the Officer in Charge of the Norfolk Island Police;
2.You must report to the Officer in Charge of Bankstown Police Station between 8am and 4pm every Wednesday starting from Wednesday 16th February 2022 unless you are away from the Bankstown area as provided for in condition No. 1;
3.Not to contact Sophie O'Connor, Bridget Sadrata, Navi Sadrata and Ollie Ralston except when authorised by Sophie O'Connor for the purpose of care of the children, Bridget Sadrata, Navi Sadrata and Ollie Ralston;
4.Not to assault, harass, or threaten Sophie O'Connor;
5.Not to approach within 50 meters of Sophie O'Connor, Bridget Sadrata, Navi Sadrata and Ollie Ralston except when authorised by Sophie O'Connor for the purpose of care of the children, Bridget Sadrata, Navi Sadrata and Ollie Ralston;
6.Not to attend 4 Longridge Road, Norfolk Island;
7.Not to attend Banyan Park Play Centre;
8.Not to attend Norfolk Island Central School;
9.Not to consumer [sic] intoxicating liquor;
10.To submit to breath screening by Norfolk Island Police on request.
The variation proposed by the accused is that the operation of conditions 1 and 2 be suspended for the period 20 to 27 December 2022 and that he be permitted to reside at Lot 4, Natokowaqa Street, Lautoka, Fiji, during that period.
The prosecutor, the Commonwealth Director of Public Prosecutions, opposed the proposed bail variation. The prosecutor submitted that the offences with which the accused has been charged are serious offences, that the accused has currently pleaded guilty to those offences, and that the prosecutor has flagged that it will in due course be pressing for a sentence in respect of those offences which involve a period of full-time imprisonment.
The prosecutor also relied on the fact that the accused is a Fijian national who holds a Fijian passport, albeit one that expired in March 2020. The accused also holds Australian citizenship and an Australian passport. The prosecutor also submitted that the accused has family ties with Fiji and that he does not reside with his children in Australia. In the prosecutor’s submission, the accused is a flight risk, and the proposed bail variation would give rise to an unacceptable further risk that the accused would not appear in court when required to do so.
It should be noted in that context that s 25(1)(a)(i) and (iii) of the Bail Act 2005 (NI) relevantly provides that:
(1)In making a determination as to the grant of bail to an accused person, an authorised members or a court shall take into consideration so far as they can reasonably be ascertained the following matters only:
(a)the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to –
(i)the person's background and community ties, as indicated by the history and details of his or her residence, employment and family situations and, if known, his or her prior criminal record;
…
(iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty; and
It should perhaps also be noted in the present context that there is currently no bilateral extradition treaty between Australia and Fiji. It was submitted on the accused’s behalf that the accused had been aware for some time that the prosecutor was, or would be, pressing for a full-time custodial sentence, and yet he had not absconded and had at all times complied with his bail conditions. The existing bail conditions did not include any condition requiring the accused to surrender his passport or to avoid approaching points of international departure.
In the accused’s submission, it would have been effectively open to him to travel to Fiji and return during the period between his reporting obligations, and nobody would have been the wiser. Instead, he chose to seek a variation of his bail conditions. It was also submitted on the accused’s behalf that the accused has no serious criminal convictions in Australia other than a fairly minor traffic offence. As for the current offences, it was submitted, in effect, that the accused had reasonable prospects of being permitted to withdraw his pleas of guilty in respect of a number of the charges, including the more serious charge, and that a sentence of imprisonment was by no means inevitable.
I would also note that the affidavit evidence from the accused’s daughter suggests that the accused has significant family ties in Australia – in particular, in Norfolk Island – and currently has secure employment in New South Wales. While I acknowledge that the proposed variation may give rise to some added risk of flight, particularly given that the accused has Fijian citizenship and some family connections with Fiji, I am in all the circumstances prepared to give the accused the benefit of the doubt in respect of the bail variation, subject to two additional conditions which I will say more about later.
In my view, the prosecutor’s submissions somewhat overstate the extent of the risk posed by the bail variation. I also consider that there is merit in the submissions advanced on the accused’s behalf that if the accused was, in truth, a significant flight risk, it would have been relatively easy for him to abscond to Fiji during the fairly lengthy period he has been on bail. He has not done so. It is also clear that while the accused has some family ties in Fiji, all of his children reside in Australia, and, as previously noted, he has secure employment in Australia.
In all the circumstances, whilst I am prepared to make the proposed bail variation, the variation should be subject to two additional conditions. Those additional conditions are: first, that the accused enter into an agreement and deposit acceptable security to forfeit the sum of $2000 if he fails to comply with his bail undertaking; and second, that the accused’s daughter, Ms Meresiana Nayagodanu Sadrata, enter into an agreement, without security, to forfeit the sum of $10,000 if the accused fails to comply with his bail undertakings.
As I have said, in my view, those two additional conditions, which must be satisfied prior to the proposed variation becoming operable, significantly reduce any risk that the accused will fail to comply with his bail undertakings. I consider it fairly unlikely that the accused would give his daughter a wedding gift of a liability of $10,000 by not complying with his bail undertakings.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 31 January 2023
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