Director of Public Prosecutions v Stanley (a pseudonym)

[2018] NSWCCA 48

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions v Stanley (a pseudonym) [2018] NSWCCA 48

Hearing dates:

23 February 2018

Date of orders:

23 February 2018

Decision date:

23 March 2018

Before:

Simpson JA at [1]
Fullerton J at [2]
McCallum J at [3]

Decision:

Bail revoked

Catchwords:

BAIL – detention application by prosecutor – show cause offence – whether cause shown – whether respondent poses unacceptable risk

Legislation Cited:

Bail Act 2013 (NSW), ss 16B, 19

Crimes Act 1900 (NSW), ss 38(a), 61J(1), 61M(2), 91H(2)

Category:

Principal judgment

Parties:

Director of Public Prosecutions (applicant)
Stanley (a pseudonym) (respondent)

Representation:

Counsel:
B Hatfield (applicant)
A Rodojev (respondent)

Solicitors:
Office of the Director of Public Prosecutions (applicant)
P Williams and Company Lawyers (respondent)

File Number(s):

2017/359834

Publication restriction:

Nil

JUDGMENT

1. SIMPSON JA: The reasons given by McCallum J adequately express my reasons for joining in the orders of 23 February 2018.

2. FULLERTON J: I also join in the reasons given by McCallum J for the order made by the Court on 23 February 2018 that the respondent’s bail be revoked.

3. McCALLUM J: The respondent was on conditional bail for a number of child sex offences. On 23 February 2018, on the application of the Director of Public Prosecutions, the Court made an order for the revocation of that bail. These are my reasons for joining in that order.

Circumstances in which the prosecutor’s application was brought

4. The respondent was arrested on 15 January 2017 and initially charged with three offences allegedly committed over the preceding two days against a friend of his daughter. He was refused bail that day. He made a release application to the Supreme Court which was listed for hearing on 19 October 2017 but that application was withdrawn on the day of the hearing.

5. On 19 December 2017, the respondent was committed for trial to the District Court at Gosford. He made a release application that day to the Magistrate and was granted bail on conditions. The prosecutor brought a detention application which came before Hamill J on 1 February 2018. His Honour refused the application but imposed tighter conditions. The prosecutor then brought a further detention application to this Court.

6. The respondent’s trial has now been fixed for hearing on 18 November 2018.

Crown case — initial charges

7. The matters with which the respondent was initially charged arose from a camping trip. The respondent arranged to take his daughter and her friend away together. They stayed in a large tent which had two separate sleeping areas separated by a central living area. The Crown case is that, during the second night of the trip, the respondent indecently assaulted his daughter’s friend, who was then aged 13. The Crown case statement alleges that the assault began while the girl was asleep. She awoke to find the respondent rubbing the outside of her vagina on the outside of her underwear. The allegation is that she resisted further touching and that he attempted to overcome her resistance, stopping only when his daughter awoke and asked what he was doing.

8. The Crown further alleges that, the following night, the respondent gave both girls a cordial drink in which he had mixed a quantity of diazepam. The girls described the cordial as tasting “funny” and “weird”. The daughter drank about half the drink while her friend drank the whole amount given to her. The Crown alleges that, after drinking the cordial, the friend began to feel dizzy and found it hard to stand up. She went to bed and later awoke to find the accused standing in front of her. The Crown alleges that he then sexually assaulted her (by inserting his finger in her vagina) and indecently assaulted her. She screamed and, after a struggle, was able to get out of the tent. A woman camping nearby came to assist. The respondent told the woman that he had found the complainant naked and that she was over-reacting.

9. A report from a pharmacologist later confirmed that blood samples taken from both girls contained diazepam. In the case of the daughter’s friend, the level of diazepam would, in the opinion of the pharmacologist, have been sufficient to cause sedation to the extent that sexual assault could be facilitated. The daughter’s blood diazepam concentration was consistent with her having consumed only half the cordial.

10. As a result of those allegations, the respondent was initially charged with three offences. In respect of the first incident, he was charged with an offence of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). In respect of the incident the following night, he was charged with one offence of aggravated sexual assault contrary to s 61J(1) and one offence of aggravated indecent assault contrary to s 61M(2). At a later point, he was charged with two offences of using an intoxicating substance with intent to commit an indictable offence contrary to s 38(a) of the Act, presumably following receipt of the pharmacologist’s report confirming the existence of diazepam in the blood samples taken from the two girls.

11. The Crown case in respect of those matters is very strong. DNA evidence from a vulval swab taken from the complainant matches the respondent, as does saliva identified on a swab taken from the girl’s breast. Further, as already noted, the pharmacologist’s report confirms the girls’ complaint about the funny-tasting cordial. The respondent admitted to police that he had previously been prescribed Valium (which is diazepam).

Further charges — examination of electronic devices

12. Police seized a number of electronic storage devices belonging to the respondent. An examination of those devices revealed images of his daughter as a result of which he faces eight further charges (four as alternative or “back-up” charges) of producing or possessing child abuse material contrary to s 91H(2) of the Crimes Act. The daughter has not been spoken to by police about those matters; the charges are based on the images themselves. Their description in the Crown case statement is extremely disturbing, suggesting a history of abuse of the daughter at the hands of the respondent.

13. The first additional charge is based on a series of three photographs depicting the daughter lying on a bed fully clothed with her mouth taped shut with grey electrical tape and her hands and feet bound with electrical tape. The date stamp indicates that the child would have been aged 8 years at the time those photographs were taken. They were stored on the respondent’s computer in a file entitled “family/pictures of [daughter’s name]”. Other photographs depict her being held down on a bed fully clothed and are described by police as showing her to appear “extremely distressed”. There is a further charge based on four photographs of her naked in the shower.

14. In addition, the Crown alleges that the respondent’s web history on his mobile phone included material downloaded regularly over the six-month period preceding the camping trip captioned with extremely disturbing titles such as “dad caught fucking TEEN BABE DAUGHTER” and “daddy brutally fuck his young stepdaughter”.

15. The respondent’s mobile telephone also disclosed that searches were undertaken shortly before the camping trip as to how long Valium takes to work and what dosage would be required “for 50 kg female”.

Requirement to show cause

16. The offence of sexual intercourse with a child under the age of 16 years is a “show cause” offence within the meaning of s 16B of the Bail Act 2013 (NSW). Accordingly, in order to obtain a grant of bail, the respondent was required to show cause why his detention was not justified. The respondent relied upon a combination of factors to satisfy that test. First, he relied on the substantial period already spent in custody on remand (11 months) combined with the substantial further period he would spend in pre-trial custody if bail were revoked (a further 9 months). Secondly, the respondent provided evidence that, in the period since he was granted bail in the Local Court, he has been the subject of regular curfew checks and has not been shown to have breached the strict conditions of his bail. Thirdly, it was noted that he has attended all appointed court dates during that period. Fourthly, he relied on the fact that he has been undertaking counselling at a level which will not be available to him in a custodial setting.

17. Leaving aside the assessment of any bail concerns, I accepted that the combination of those factors was sufficient to show cause why the respondent’s detention was not justified.

Assessment of risk

18. My reason for joining in the order revoking bail was that, in my assessment, there was an unacceptable risk that could not be addressed even by the strict bail conditions imposed in the Supreme Court. The prosecutor submitted that there was an unacceptable risk, if the respondent remained at liberty, of each of the kinds specified in s 19 of the Bail Act, namely, a risk of failing to appear, a risk of committing a serious offence, a risk of endangering the safety of the complainants and the community and a risk of interfering with witnesses or evidence.

19. I was not persuaded that there was a risk of failing to appear that could not have been addressed by the imposition of appropriate conditions. I accept that the Crown case is strong and that a lengthy term of imprisonment is inevitable if the respondent is convicted. However, that combination of circumstances does not always necessarily produce an unacceptable risk of flight. The respondent’s mother has posted substantial security ($50,000) and the respondent has appeared before Court when required, importantly including appearing in response to the present application.

20. However, I considered that there would be an unacceptable risk that the respondent would commit a serious offence if he remained at liberty.

21. As already noted, the strength of the Crown case is overwhelming. Whilst due regard must be had to the presumption of innocence, it remains appropriate to have regard to the strength of the Crown case in assessing a risk of offending if a person is released. The circumstances of the offences alleged to have been committed during the camping trip suggest that the respondent is capable of manipulative, predatory behaviour. His apparent preparedness to use his own prescribed diazepam to facilitate the commission of the offences is particularly troubling. That is relevant in the assessment of the efficacy of any bail conditions.

22. The additional charges based on the photographic images, considered together with the evidence concerning the respondent’s internet search history, suggest more sinister tendencies.

23. The respondent tendered a report from Ms Jenny Howell, a forensic psychologist. The report was expressly sought in response to the prosecutor’s detention application. Ms Howell assessed the respondent as having a low risk for future sexual offending behaviour and expressly noted that there is not a “no risk” category. Ms Howell further reported that “clinical assessment supports the assessment that his future risk is low with good prospects for rehabilitation.” However, the report does not specify what assumption, if any, the author made as to the offences with which the respondent is charged (as to which he maintains his innocence).

24. Further, it is not clear whether Ms Howell had all relevant information before her. The report states that her sources of information included “Crown Case Statement” and “FACTS” (this Court has no document of the latter title; it may be the statement of facts that was presented in the Local Court). In her description of the matters with which the respondent is charged, Ms Howell recites only the three initial charges explained above. Her report sets out particulars of those charges that do not appear in the current Crown Case Statement. The report makes no reference to the further charges (the two offences of using an intoxicating substance with intent to commit an indictable offence and the charges of producing or possessing child abuse material) except in a brief reference to the fact that the respondent “understands he has been charged with 12 offences in total”.

25. Under the heading “Opinion” at the conclusion of the report, Ms Howell says:

“[the respondent] did not endorse a history of entrenched hyper sexuality, deviancy or excessive masturbation as a means of emotional coping. He denied paedophilic interest and does not impress as inherently antisocial.”

26. Her recitation of those self-reported assumptions includes no reference to the child abuse material found on the devices seized by police or the respondent’s web history. That material shows that, within six weeks before taking the two young girls camping, the respondent was searching material under titles relating to fathers having sexual intercourse with their daughters.

27. In the absence of any reference to any of that material, it is not clear whether Ms Howell was given full information about the case against the respondent. If she was, the absence of any reference to it significantly undermines the force of her opinion. The report concludes with a recommendation for counselling by an accredited psychologist in relation to intra-familial sexual abuse, which is at odds with the assumptions apparently made in support of the opinion that the respondent presents a low risk of future offending. The respondent has undertaken counselling since his release on bail but, based on the scant detail provided in a small number of interim reports, that appears to have been directed to assisting him to cope with anxiety and depression in respect of these proceedings. There is no reference to his having had any therapy targeted to the matters suggested by Ms Howell in her report.

28. For those reasons, I considered that the respondent presented an unacceptable risk of future offending of a sexual kind or offending relating to child abuse material. The conditions of his bail have efficacy to address those risks only if he adheres to those conditions. The evidence presented at the hearing did not persuade me to have confidence that will occur. The respondent’s mother did not give evidence as to her attitude to the curfew and her capacity to ensure that the respondent would abide by it. Further, I was not persuaded that any conditions could adequately address the risk of offences committed through the use of electronic devices. There was a condition that the respondent possess only one mobile telephone but that would be an extremely difficult condition to monitor and enforce. His web history suggests a disturbing sexual interest in young girls which he has not acknowledged or begun to address. His desktop computer revealed many conversations with unknown persons on the internet including girls under 16. The content of those conversations was described by police as “predatory, intimidating and/or aggressive”.

29. As noted above, the prosecutor also submitted that there was an unacceptable risk that the respondent would endanger the safety of the complainants or interfere with witnesses if he remained at liberty. There was some evidence to support those concerns but it was not strong. A letter to the Court from the arresting officer states that, while first in custody, the respondent made many attempts to contact his ex-wife, contrary to the terms of an AVO taken out for the protection of the daughter. However, there was no suggestion of any such conduct since his release on bail. There was also some evidence suggesting that, since his release on bail, his activity on social media platforms suggests attempts to contact or influence the complainants. It was difficult to judge those matters on the scant information available.

30. In any event, in accordance with s 19 of the Bail Act, it followed from my conclusion as to an unacceptable risk of committing a serious offence that bail had to be revoked.

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Decision last updated: 27 May 2025