Director of Public Prosecutions (Acting) v J C N

[2015] TASFC 13

[2015] TASFC 13

COURT:        SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:                Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS (ACTING)
  v
  J C N

FILE NO:  1893/2015
DELIVERED ON:  27 November 2015
DELIVERED AT:  Hobart
HEARING DATE:  7 October 2015
JUDGMENT OF:  Blow CJ, Tennent and Pearce JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Bail – Before trial – Other cases – Family violence offences – Statute prescribing prerequisite to granting of bail.

Family Violence Act 2004 (Tas), s 12.

Aust Dig Criminal Law [2991]

REPRESENTATION:

Counsel:
             Appellant:  D G Coates SC
             Respondent:  K Baumeler
Solicitors:
             Appellant:  Director of Public Prosecutions (Acting)

Judgment Number:  [2015] TASFC 13
Number of paragraphs:  23

Serial No 13/2015

File No 1893/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v J C N

REASONS FOR JUDGMENT  FULL COURT

BLOW CJ
TENNENT J
PEARCE J
27 November 2015

Orders of the Court

1. Appeal allowed.

1. Order for bail set aside.

1. Bail application dismissed.

Serial No 13/2015

File No 1893/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v J C N

REASONS FOR JUDGMENT  FULL COURT

BLOW CJ
27 November 2015

1. I have read the reasons for judgment of Pearce J in draft form.  I joined in the making of orders relating to the revocation of bail on 7 October 2015 for the same reasons that are stated by him.  I agree with the final orders proposed by him, and with his reasons for those orders. 

File No 1893/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v J C N

REASONS FOR JUDGMENT  FULL COURT

TENNENT J
27 November 2015

1. I have had the benefit of reading in draft form reasons for judgment by Pearce J. I agree with those reasons and would allow the appeal and refuse the respondent's application for bail.

   File No 1893/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v J C N

REASONS FOR JUDGMENT  FULL COURT

PEARCE J
27 November 2015

The appeal

1. On 7 October 2015 this Court heard an appeal brought pursuant to the Criminal Code, s 305(1A)(a) by the Acting Director of Public Prosecutions. It is an appeal against the order of a judge admitting the respondent to bail. The appeal is by way of a venire de novo: s 305(2). That is, it was to be reheard on the material produced to this Court. At the conclusion of the appeal, the Court ordered that the respondent's bail be revoked and arranged for his return to custody. The respondent was returned to custody on 8 October 2015. Because the respondent was not present during the hearing, the Court also made orders permitting further written or oral submissions. No further submissions have been made. These are my reasons for joining in the making of the order revoking bail, and for my view that the appeal should now be allowed and the application for bail formally refused.

2. The respondent is charged on complaint with 45 counts. The complaint alleges offences committed between 6 March 2015 and 26 April 2015. All but one of the charges allege summary offences. The remaining count, a charge of attempted aggravated assault, is an indictable offence for which the respondent has been committed to the Supreme Court for trial. The bail order related solely to the indictable offence. It is a family violence offence within the meaning of that term in the Family Violence Act 2004 ("the Act"). Thus, s 12 of the Act has application, and the respondent is not to be granted bail unless this Court is satisfied that his release on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.

3. For more than two years the respondent has been in a relationship with the complainant, CR. She has two children, a daughter, J, and a son, B, respectively aged 14 and 12. After hearing the appeal I was not satisfied that the respondent's release on bail would not be likely to adversely affect the safety, wellbeing and interests of the complainant and her children, and concluded that the application for bail should be refused.

The respondent's recent violent conduct

1. The respondent is 34. Over the course of his relationship with the complainant they have maintained separate residences. The respondent has a house at Sorell. However, he commonly stayed in the complainant's home where she lives with her children. The respondent is not the father of either child. The relationship has been characterised by the respondent's violent behaviour towards the complainant, but also by periods of reconciliation. She is a person against whom family violence has been directed and thus is an "affected person" under the Act, s 3. Her children are children whose safety, psychological wellbeing or interests are affected, or likely to be affected by family violence and thus, each is an "affected child" under the Act, s 3. On 9 April 2014 a police family violence order was made against the respondent to protect the complainant, with a condition that the respondent not threaten, harass or assault the complainant. There is no evidence of what led to the making of the order. However, on 7 June 2014, the complainant went to the respondent's house in Sorell with her daughter and her mother to collect some of her clothes. While she was there the respondent seriously assaulted her and also assaulted her mother. The assault of the complainant constituted a breach of the police family violence order. The respondent was charged with two counts of assault and with breaching the order. A condition imposed on his bail was that he not approach the complainant at all, and comply with the terms of the police family violence order then in place.

2. On 29 October 2014 the complainant stayed with the respondent at his home in Sorell with her children. On the following morning, 30 October 2014, they argued. After taking her children to school she did not want to return to the house. The respondent found her waiting outside a nearby shopping centre with one of her children's friends. He followed her into the shopping centre female toilets, kicked in the door of the cubicle in which she was hiding, and assaulted her by punching her twice to the face with his clenched fist. The initial contact, and the subsequent assault, breached the conditions of his bail and the conditions of the family violence order. The police were called but the respondent absconded. When the complainant later returned home the respondent had slashed the tyres on her car and put gravel in the engine oil. The police found the respondent at his mother's house in Hobart on the following day and he was arrested. At the time of his arrest he resisted the police. He was remanded in custody. An interim family violence order was made by a magistrate with a condition that he not approach the complainant. In breach of that order the respondent phoned the complainant from the prison on seven occasions between 20 and 27 November 2014, including four times on one day.

3. On 12 December 2014 the respondent was sentenced by a magistrate for the offences committed on 7 June 2014. He was sentenced to imprisonment for four months from his arrest on 31 October 2014. The magistrate made a family violence order for 12 months from 12 December 2014. There were 11 conditions of the order, including conditions that the respondent not stalk, assault, harass the complainant or her children, that he not approach her or the children directly or indirectly, and that he not go within 100 metres of an address at Midway Point where, I infer, she was then living.

4. Part of that sentence appears to have been remitted pursuant to the Corrections Act 1997, with the result that the respondent was released on 29 January 2015. On 4 March 2015, just over a month after his release, the respondent seriously assaulted another female, his former partner, AN. Until their separation in 2012, the respondent and AN were in a relationship for about 12 years. They have two children together. On 4 March 2015 AN went to the respondent's home to pick up a computer component. He met her at the front door, and when she told him what she had come for, he punched her twice to each side of her face with a closed fist. He was charged with assault and was held in custody until 26 March 2015.

The charges faced by the respondent

1. The offences which were the subject of the complaint are alleged to have been committed in March and April 2015. It is alleged that while held in custody between 6 and 26 March 2015 the respondent phoned the complainant 19 times, including four times on one day and five times on another day. Some of the calls consisted only of recorded messages. On other occasions the complainant engaged in conversation with him. Each call which involved conversation was accepted by the complainant. The longest call was 15 minutes. It is the prosecution case that the respondent used another prison inmate's phone account to make the calls. If proved, each phone call constitutes a breach of the family violence order made on 12 December 2014. The respondent was granted bail by a judge in late March 2015. On 3 April 2015 an off duty police officer saw the respondent and the complainant having lunch together, with the children, in Hobart. The sighting is said to be confirmed by surveillance footage obtained by the police. If proved, the conduct is a breach of the family violence order prohibiting any approach by the respondent to the complainant or her children. The police then became aware of the phone calls made from prison. They resolved to arrest the respondent. On 24 April 2015 they went simultaneously to his house in Sorell and to his mother's house in Hobart. They found him at the Hobart address. The complainant and both her children were also there. Both the respondent and the complainant were taken into custody. The complainant had visible injuries to her face about which she was interviewed. She told the police that the day before, on 23 April 2015, she was visiting the respondent's mother in Hobart when the respondent arrived. He demanded to be driven home to Sorell, but then asked to be taken to the house in which the complainant was living by then at Dodges Ferry, a small coastal town about 13 kilometres south of Sorell. The respondent spent the night at that Dodges Ferry house with the complainant and her two children. If that conduct is proved it is a further breach of the family violence order. It is the Crown case that during the evening of 23 April 2013:

   ·     The respondent approached the complainant's daughter, J, and demanded she give him her phone. She concealed the phone in her bra and protected it by crossing her arms across her chest. The respondent became angry and, in an attempt to make J uncross her arms so he could get to the phone, grabbed her buttock, thereby assaulting her. She managed to break free and run to her room.

   ·     The respondent threw a plastic bar stool towards the complainant who was asleep on the couch. He then grabbed the stool again and threw it at the complainant's son, B, striking him on the leg, thereby assaulting him.

   ·     The respondent grabbed the complainant by her upper body, dragged her to her feet and pushed her to her bedroom. He left that room but quickly returned and began shouting at her about her ex-boyfriend. He abused her by calling her a "slut" and that he was "going to treat her like one". He forced her track pants down and, while the complainant was frozen with fear, attempted to insert a plastic vibrator into her anus. His conduct was witnessed by the two children who had come to the bedroom to attempt to help her. The complainant broke free and returned to the lounge room. The respondent followed her. They returned to the bedroom where she attempted to calm the respondent but, when he was unhappy with her answers to his questions about her former boyfriend, he punched her five times to the face and bit her left ear. After punching the complainant the respondent placed the burning end of a cigarette on the complainant's forehead.

   ·     The following morning the respondent again approached J demanding her phone. She was about to catch the bus to school. When she refused to hand it over he emptied the contents of her school bag stomped on them, saying, "This is going to be your face". He grabbed her by the hair and pushed her against the wall, causing her to strike her head. She broke free and ran outside, giving the phone to her younger brother.

   ·     The respondent then went to the lounge room. After referring again to the complainant's former boyfriend, he picked up the television and threw it onto the ground, smashing it.

   ·     The respondent followed B to the nearby house where he had gone for help. After telling the female occupant of the house not to become involved, he threatened B by saying he would kill him, his sister and his mother if the police were notified, and smash all of the windows in their house.

   ·     The respondent prevented the children from going to school. He forced the complainant to drive him, with the children, to his mother's house in Hobart. On the way he became agitated and aggressive, called her a "slut" and punched her legs while the car she was driving was in motion. She called out in pain. The children were in the back seat of the car.

2. The police arrived at the Hobart house at about 10.30am. Their arrival was co-incidental, there having been no report about the events of 23 and 24 April 2015. He was arrested. Later, on 24 April 2015, while at the police station, the respondent became enraged and tore the security cords from the swipe access to the watch house. After being placed in the holding cell he kicked the door with such force and frequency that it caused the bolt to become loose. His aggressive behaviour was such that he was charged without being present. It is the prosecution case that, while in custody at Risdon Prison on 26 April 2015, he again breached the family violence order by phoning the complainant's phone number five times, again using another prisoner's phone account.

3. The respondent was charged with:

   ·     35 counts of breaching the family violence order by approaching the complainant by phone from the prison between 6 and 26 March 2015, Family Violence Act, s 35(1).

   ·     One count of assault with indecent intent, Police Offences Act 1935, s 35(3).

   ·     Five counts of common assault, Police Offences Act, s 35(1).

   ·     Three counts of injure property, Police Offences Act, s 37(1).

   · One count of attempted aggravated assault, the Code, ss 127A(1)(a) and 299.

The respondent's prior convictions

1. The respondent has a very poor record for violent offending and breaching court orders. He was first convicted of breaching a family violence order in 2005. He was given a suspended sentence of imprisonment in 2006 for assault. In 2009 he was imprisoned for assault and given another suspended sentence for resisting police. Between 2007 and 2010 he breached bail or failed to appear in court on seven occasions. He twice drove without a licence and twice drove while disqualified. In July 2010 he was sentenced to imprisonment for two months, partly suspended, and ordered to perform community service for destroying property, three counts of breaching a family violence order and one count of breaching bail. On 20 August 2010 he was fined for resisting police. On 16 February 2011 he was fined for breaching a family violence order and driving without a licence. On 4 July 2011 he was sentenced to two months' imprisonment, wholly suspended, for driving without a licence and evading the police. He breached that sentence by re-offending, and, on 19 September 2011, was sentenced to an effective term of imprisonment of six months for an assault committed on 8 September 2010 in breach of a family violence order.

2. I earlier described the offences committed against the complainant and referred to the sentence of imprisonment imposed on 12 December 2014 for the assault committed against her on 7 June 2014. On 16 April 2015 he was sentenced to imprisonment for 21 days wholly suspended for 18 months, and probation for the breaches of family violence order committed by making phone calls to the complainant between 20 and 27 November 2014. Thus, at the time he is alleged to have committed the offences on 23 and 24 April 2015, the respondent was subject to that suspended sentence and the probation order. The respondent was not sentenced for the assault and breaches of bail committed on 30 October 2014 until 25 September 2015. He was sentenced to imprisonment for three months wholly suspended for three years. On the same day he was sentenced to six months' imprisonment for assaulting AN on 4 March 2015.

The bail application

1. The respondent was refused bail on 18 June 2015. Since then he has completed the sentence of imprisonment imposed on 25 September 2015 which was backdated to 11 March 2015. He is now in custody only on the new charges. Another application for bail was made on 29 September 2015.

2. Absent statutory intervention, a person accused of an offence or crime is generally entitled to his or her freedom until they stand trial. In some cases it is proper to refuse bail if there is an unreasonable risk that, even with appropriate conditions, an accused person will fail to appear in court to answer the charge. A court may also consider whether an accused person poses such a risk that, notwithstanding the presumption of innocence, the protection of the community requires his or her detention until trial. It is unlikely that a trial of the indictable charge faced by the respondent can be ready to proceed until at least February 2016, and possibly later. The remaining summary charges may take longer to be dealt with. There is potential for injustice if he is acquitted of all or, even if found guilty of some of the charges, sentenced to imprisonment for a period less that the period of his remand. Although it will be for another court to consider, I consider there to be little risk of injustice if he is convicted of the most serious charges he now faces. He owns a house at Sorell. His mother lives in Hobart. I do not see that there is a significant risk that he would abscond to avoid appearing in court to face trial. Any such risk may be adequately controlled by bail conditions. In my view, there is a risk that, if granted bail, he will continue to offend. That issue is largely subsumed however by a consideration of the operation of the Family Violence Act, s 12, to which I now turn.

3. By s 12(1), the Act provides as follows:

   "(1)   A person charged with a family violence offence is not to be granted bail unless a judge, court or police officer is satisfied that release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child."

4. Thus, because the respondent is charged with family violence offences, he is not to be granted bail unless he satisfies this Court that his release on bail would not be likely to adversely affect the safety, wellbeing and interests of the complainant and her children. The Act thereby creates a presumption against bail: Re S (2005) 157 A Crim R 451. The onus is on the respondent to displace the presumption: Olsen v State of Tasmania [2005] TASSC 40. In the affidavit sworn by the respondent in support of his application for bail he advances a number of contentions in support of his application. He denies his guilt of the most serious charge of violence against the complainant. He does not deny approaching the complainant in April 2015 but contends that the approaches were "instigated" by her. He says his health is affected by a back injury suffered at work for which he requires medication. His father is elderly and in failing health. His mother is prepared to offer a surety of $4,000 to secure his attendance in court and compliance with bail conditions. She is also in poor health. She requires dialysis and the respondent, if released, wishes to care for her. The respondent says he will comply with bail conditions, including curfew and reporting conditions and a geographical condition preventing him from going near the complainant's home.

1. The respondent is entitled to the presumption of innocence in respect to all of the charges. However, in assessing the safety of the complainant if the respondent is released, account should be taken of the chance that the respondent is guilty of the offences alleged against him. A person guilty of such conduct as is alleged in this case, in my opinion, poses a continuing risk to the complainant and her children. There is a considerable amount of evidence tending to prove his guilt including:

   ·     Records from the prison phone system of the phone calls the respondent is alleged to have made to the complainant.

   ·     CCTV images of the approach alleged to have been made by the respondent to the complainant and her children on 3 April 2015.

   ·     A statutory declaration made by the complainant describing the conduct of the respondent on 23 and 24 April 2015. She has indicated a willingness to give evidence.

   ·     Statutory declarations made by each of the complainant's two children describing the conduct of the respondent on 23 and 24 April 2015 which corroborate the evidence of the complainant. Both children are willing to give evidence.

   ·     Evidence of the injuries to the complainant observed by the police on 24 April 2015.

   ·     Video footage of the respondent's conduct at the police station on 24 April 2015 and physical evidence of the damage he is alleged to have caused.

2. The respondent also deposes, in a recent affidavit, that the complainant "is not afraid of my release".  What is to be conveyed by that proposition is not entirely clear. It may mean simply that the complainant is "not afraid". It may also be intended to carry an inference that the complainant supports the respondent's release on bail. In the absence of evidence from the complainant, it is not possible to make findings about such matters, but some comments can be made. The response to family violence is often complex. Family violence offences are not uncommonly accompanied by support of a perpetrator by a victim and reluctance on the part of the victim to assist a criminal prosecution. That is so for a range of possible factors including fear and a wish to preserve relationships, even dysfunctional and violent ones, for the sake of loyalty, affection, companionship, economic and domestic support. Sometimes those motivations are misguided but persist nevertheless. As a result, victims sometimes act in a way that seems to an objective observer to be incongruous and difficult to understand. In such cases a court has a duty to consider the interests of persons who may be affected by family violence and, if necessary, act to protect them. By doing so it may sometimes act contrary to the wishes of an affected person. None of these comments is intended to suggest that the complainant in this case supports the respondent's application for bail, or that she does not and will not support his prosecution. Rather, it is to indicate that, in my assessment of this application, whether the complainant is afraid of the respondent, whether she supports the grant of bail or whether she instigated or acquiesced in the previous breaches, are considerations of little weight. The task of this Court is to consider the safety, wellbeing and interests of the complainant and her children in the particular circumstances of this case.

3. I have taken some time to detail the respondent's record of past breaches because it demonstrates that, especially over the last five years, he has repeatedly been violent towards females, including but not limited to the complainant. He has displayed a disregard for the law and contempt for the force of court orders. There have been multiple breaches of family violence orders and bail conditions, some constituted by acts of violence. He has not been deterred by sentences of actual and suspended imprisonment. The evidence in support of the current charges strongly suggests a willingness to continue to breach conditions of orders made against him. The history of his breaches gives me no confidence that he will comply with the conditions of bail he says will protect the complainant. It is also to be firmly borne in mind that the current order is not just for the protection of the complainant, but also for the protection of her children. The respondent is charged with actual violence towards them and with making threats of even more serious violence. I think that the respondent's release on bail would pose a continuing risk to the complainant and her children.

4. The Act, s 12, requires the Court to have regard to three particular matters:

   (a)Section 12(2)(a) – any available risk screening or rehabilitation program assessment. The Court was not made aware of any rehabilitation program assessment. A risk screening assessment was undertaken by a police officer on 26 April 2015. I give it little weight, but the risk posed by the respondent was assessed as high.

   (b)Section 12(2)(b) – the person's demeanour. The respondent was not present during the hearing of the appeal. There is nothing that can be said about his demeanour which strengthened or weakened the application for bail.

   (c)Section 12(2)(d) – the availability of suitable accommodation for the person and any affected person or affected child. The complainant and her children have suitable accommodation. If released, the respondent could live either in his own home or with his mother. His own home is quite close to the complainant's residence. If he is there, monitoring his movements and conduct would be very difficult. It would achieve little to reduce the risk. His mother's home is in Hobart and would increase the physical separation from the complainant. However his presence at that home has not, in the past, prevented breach of the order. Nor does his mother's presence seem to prevent breaches. He was at his mother's house with the complainant when he was arrested. The circumstances to which I have referred also reduce my confidence in his mother's capacity as surety to monitor the respondent's behaviour and deter any breach.

Conclusion

1. For the foregoing reasons I joined in the order revoking the respondent's bail. I would allow the appeal and refuse the respondent's application for bail.