Director of Public Prosecutions v Sultana
[2020] VCC 951
•25 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00626
| BRENDAN SULTANA | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 25 June 2020 | |
DATE OF RULING: | 25 June 2020 | |
CASE MAY BE CITED AS: | DPP v Sultana | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 951 | |
REASONS FOR RULING
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Subject:CRIMINAL LAW; BAIL
Catchwords: Opposed bail application; “show compelling reason” test; whether Covid-19 emergency measures esp delay in trial date and conditions on remand create compelling reason in this case; whether unacceptable risk; charges of aggravated burglary and rape all denied and going to trial; complainant vulnerable person; applicant’s criminal record relevant; proposed residence distant from complainant and prosecution witnesses.
Legislation Cited: Bail Act 1977, ss 1B; 3AAA; 4AA; 4C
Cases Cited:ReChe Ashton [2020] VSC 231; Rodgers v R [2019] VSCA 214, Re Alsulayhim [2018] VSC 570 ; Re Ceylan [2018] VSC 361
Ruling:Bail granted on conditions
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Willard | Michael J Gleeson and Associates |
| For the Respondent | Mr S Devlin | Office of Public Prosecutions |
HER HONOUR:
1 This is an application for bail by Brendan Sultana who has been remanded in custody since on 27 February 2020. He is charged with aggravated burglary, two counts of rape, and sexual assault.
2 The charges arise out of a single set of events on 27 August 2019. Mr Sultana denies all of the charges, and intends to stand trial on them.
3 The application falls within s4AA(3) of the Bail Act 1977 (“the Act”), as the charges of rape and aggravated burglary are Schedule 2 offences, and although he was subject to a Community Correction Order at the time of the alleged offending, that was for charges that were not Schedule 1 or 2 offences.
4 The court’s decision as to whether he is entitled to be granted bail has two steps. First, he must satisfy the “show compelling reason” test. Secondly, if he satisfies the court that a compelling reason exists, the court must apply the unacceptable risk test.
The Applicant’s background
5 Mr Sultana is now aged 42.
6 After leaving school he had completed a printing apprenticeship and then worked for two years in that field. He had a near 14 year relationship, and at 26 married, a woman he had known since teenage, and for seven years they together ran an hydraulics repair business in Campbellfield. In late 2011, she died in unexpected and tragic circumstances, following which Mr Sultana’s mental health deteriorated and he didn’t work for some years. About 3 years later he worked for a fruit supply business as a storeman, and the following year part time loading containers, then did not work again until about 2016 when he helped renovate and worked in a café.
7 He had a problem with alcohol, which he says has not continued since undertaking serious rehabilition in 2017. He claims to have never had a problem with illegal drugs- but does admit to occasional use of cannabis. The condition added to a CCO in March 2019 for assessment and treatment for drug abuse would indicate that a Judge at the time thought he did have a drug abuse problem.
8 Approximately a year after his wife’s death, he started what was to become an intermittent relationship with Ms T, which took him before courts for unlawful assault and for breaching a FVIO. That relationship is said to have ended some months before August 2019, when he was living with his mother, working in a café, and regarded himself as single.
9 In September 2019 he formed a relationship with Ms P, who was living in Wangaratta, and he would travel there to visit, until charged and remanded in late February 2020. The relationship with Ms P continues. There is a FVIO in place against him, under which she is the protected person, but contact between them is not prohibited.
10 The proposal is that if granted bail he would live at a house in Wangaratta where Ms P has lived until now, but moved out the night before the bail hearing was to commence. Mr Wayne Hinds, and his adult son lives there, and the third bedroom recently vacated by Ms P is available for Mr Sultana. Mr Wayne Hinds gave evidence of the circumstances of his offering this accommodation to Mr Sultana, at the request of Ms P. He has stated that if Mr Sultana moved out or breached bail conditions, he would report that fact to police. I did not take that as an undertaking, but a statement that he understood what he should do if he became aware that Mr Sultana had broken any bail condition.
The charges
11 Mr Sultana faces charges arising from his conduct on 27 August 2019, in which it is alleged that he entered a house in Broadmeadows, without permission, entering through the bedroom window of a young woman, whom he then raped by two different acts of sexual penetration, and also sexually assaulted. Her aunt who is her carer entered the room and found him on top of the young woman on the bed. He left the house, but was identified subsequently, as the step-brother of a person the complainant knew, and also by DNA.
12 The complainant was aged 21 at the time, and has an intellectual disability, allegedly with the mental acuity of a child of approximately seven. The prosecution case is that not only does she say that she told the Accused he should not be there, and did not consent to his sexually penetrating her, but she was not capable of giving that consent, and this would have been known or obvious to the Accused.
13 When interviewed 4 days after the events by police, the applicant admitted the first alleged act of sexual penetration but denied the second. He said that he had been invited by the young woman earlier in the day when they spoke, to come to the house and to enter her bedroom through the window, and that the act of sexual penetration which he did acknowledge was with her consent. He did not acknowledge knowing that she was intellectually disabled, describing her as “special”.
The “show compelling reason” test
14 Pursuant to s 4C of the Act, as the “show compelling reason” test applies, the court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The accused bears the burden of satisfying the court as to the existence of a compelling reason, and, in considering whether a compelling reason exists, the court must take into account the “surrounding circumstances”.
15 The meaning of “surrounding circumstances” is set out in s3AAA. It requires the court to take into account all the circumstances that are relevant to the matter. I shall not set them out in full, but deal with the relevant ones shortly. [, including, relevantly here, the nature and seriousness of the alleged offending, the strength of the prosecution case, the accused’s criminal history, the extent to which the accused has complied with the conditions of any earlier grant of bail, whether at the time of the alleged offending the accused was, relevantly here, subject to a community correction order made in respect of another offence, whether there is in force a family violence intervention order made against the accused, the accused’s personal circumstances, and any special vulnerability of the accused. Other circumstances include the length of time the accused is likely to spend in custody if bail is refused, and the likely sentence to be imposed should the accused be found guilty.]
16 The principles to be applied when considering whether a compelling reason exists have been summarised as follows:
(1) For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.
(2) It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’. [1]
Has a compelling reason to grant bail been shown to exist?
[1]Rodgers v R [2019] VSCA 214 at [43], adopting principles from Re Alsulayhim [2018] VSC 570 (per Beach JA) and in Re Ceylan [2018] VSC 361
17 The first surrounding circumstance to consider is the nature and circumstances of the alleged offending. Its nature and circumstances are very serious. The maximum penalties of 25 years imprisonment for each charge of rape and aggravated burglary reflect the potential objective seriousness. If proven, these were serious instances of each charge – or at least the first three - being committed by intrusion into a house at night, into the bedroom of a vulnerable young woman some 20 years younger than the accused, and with what is described as overt intellectual disability. Further, it is alleged that the vaginal sexual penetration was painful, caused some physical injury, and was the first time for her, and also as a consequence of these events she was scared to sleep in that bedroom afterwards.
18 The strength of the prosecution case must be considered. Counsel for the applicant detailed a number of aspects where it is argued there are weaknesses or vulnerabilities in the version of events given by the complainant. Her reliability as a witness will be challenged, and her capacity due to her intellectual disability has not yet been fully considered on behalf of the applicant. It was submitted that her version is improbable. Defence counsel conceded that it is not a weak prosecution case, but submitted that there are real issues to be tried, in light of alleged weaknesses in the Complainant’s version and in light of the Accused’s version of events to police, and the presumption of innocence requires that adverse assumptions not be made against the Accused until evidence is tested at trial.
19 Counsel for the prosecution submits that the prosecution case is strong. While conceding that there may be some aspects of the evidence that do not neatly mesh with other parts, it is submitted that there is no significant point that is weak.
20 It is not possible for me to closely examine the evidence at this stage, nor appropriate to make firm findings about it. It seems to me that what is described by the defence as improbable in the Complainant’s version, is not necessarily so, depending on whether or not the Accused’s version is considered possible. Apart from the second charge of rape, this is not a case resting solely on the Complainant’s own evidence, as there is evidence capable of supporting it from physical or forensic evidence, and from other witnesses. Moreover, on the first charge of rape, the key issue of whether the Accused did not reasonably believe that the complainant consented, is likely to turn not only on a jury’s assessment of her level of understanding as well as reliability of recall, but also on both medical and lay evidence about the complainant’s intellectual disability and capacity, not only from the complainant’s guardian and carers, but also those people present when she met the Accused.
21 The prosecution case is not weak – and that has been conceded. There are however aspects of the evidence that the Accused would be entitled to test on trial, and he has given a version to police that raises real issues to be tried as the evidence stands at present.
22 It is next relevant to take into account that Mr Sultana has a criminal history dating back 10 years, including 12 court appearances, on the last of which, only months before the alleged current offences, he served a term of imprisonment of 37 days. None of this history includes sexual offences, but it does include some offences of violence, and a number of offences which in my view are relevant in this application.
23 First, he has a number of prior convictions for offences involving disregard for court orders. Two were for failing to answer bail, one 7 years ago, but the second only months before the events giving rise to these charges. I do not have not been told the circumstances. There are several prior convictions for driving while suspended, one of contravening a CCO, and 3 of contravening FVIOs.
24 The contravention of CCO was dealt with in the County Court only a month before the events the subject of the current charges, and resulted in a fresh CCO to cover the balance of conditions of the breached one. The fresh CCO was current as at August 2019. The breached CCO had been imposed for driving offences in place on appeal from a Magistrates Court sentence which included some imprisonment, which would have been Mr Sultana’s first. This reflects his failure to learn lessons from past offending and failure to respect or comply with court orders.
25 The breaches of FVIOS have further relevance because they reflect a willingness to abuse his power in relation to women. I am told that the first two of these related to his wife, who tragically died in 2011, one such charge being hear in 2010 and the other in December 2011. Another breach of FVIO related to a former partner of some years, Ms T, who was also the subject of unlawful assault in 2017. Finally there is now in place a FVIO in relation to his current partner, Ms P. The latter has not been found to have been contravened, but was made after events that are the subject of assault related charges due to be heard in the Magistrates’ Court in October this year. That order does not prohibit contact, but does prohibit any form of violence towards Ms P.
26 I take into account that if the applicant is found guilty of the charges, or at least any of the first three, the likely sentence would well exceed the time he is likely to spend on remand if not granted bail- indeed a standard sentence may apply, certainly longer than any likely remand period. Therefore, this is not a case where there is likely to be unfairness due to remand exceeding an eventual sentence if guilt is proven. However, that is not a reason to refuse bail, and I have taken it into account only as one of many surrounding circumstances.
27 The Applicant relied on a recent psychological report by Mr Jeffrey Cummins. Mr Cummins seems to have relied on what you told him to form his opinions, and that has led me to place less weight on his opinions where I consider the factual basis significantly different from information available to me.
28 Mr Cummins considered that you have in the past suffered a Persistent Complex Bereavement Disorder following your wife’s death, but it had resolved by the time of the alleged offending last August. He thought you now suffer symptoms indicative of feeling traumatised in response to being arrested, charged and remanded, and at interview he found you moderately anxious and moderately depressed. You told him you did not require any mental health treatment. There is nothing to indicate that Mr Cummins knew that a CCO imposed in July 2019 included a condition for treatment for mental health. Mr Cummins thought you at risk of developing a reactive Adjustment Disorder with mixed anxiety and depression, as a reaction to being arrested, charged and incarcerated, and recommended treatment, albeit you had said you do not require it. I do not regard Mr Cummins’ opinion on this as raising a serious concern about your mental health if it remains untreated in prison, nor of your being keen to undertake psychological therapy were you to be released on bail.
29 Much of Mr Cummins’ report addresses the risk of you committing any sexual offending in future, and he concludes that there is a low risk of that. I give very limited weight to that opinion, partly because it is a result of moderating the result of the Static-99 test in which your risk was higher (low to moderate), by applying factors based on information which in my view was conveyed through the prism of your perceptions of how the events the subject of the charges occurred, and also about your history of breaching FVIOs against not just the more recent former partner but also your wife. You also told him you never thought of yourself as having a problem with alcohol, and did not regularly use any illicit drugs. There was also not recognition of injury allegedly caused to the complainant, and the incident is described by him as not physically violent apart from the violence implied in the charge of rape. If the Complainant’s version is believed, it was more than implied violence through the description “rape”.
30 Finally, Mr Cummins made no assessment of the risk of you offending in other than sexual offences, and while a significant risk of sexual offending is certainly highly relevant, the risk to be assessed for bail is of all offending.
31 The main circumstance relied upon in support of a compelling reason, albeit in combination with others, is that of likely delay before a trial will be listed or heard, and other impact of emergency arrangements imposed due to the Covid-19 pandemic. Delay in a trial being held is a well-recognised concern and often the basis of the finding of compelling reasons, even when serious sexual offending is alleged[2]. Since 16 March, jury trials in Victoria have been suspended, and other court sittings limited, and their scheduling disrupted due to emergency protocols. The timing of a trial for these charges is still uncertain. It is most unlikely to be listed this year, and may well not occur until the middle of next year. Due to the nature of the charges and the alleged intellectual disability of the complainant, the trial would receive some priority in listing, and even more so if the Accused is in custody, but the timing is uncertain.
[2]eg Re Ashton, Re Re Alsulayhim
32 Further, there have not yet been dates fixed for preliminary hearings, being an anticipated “ground rules” hearing for an intermediary in relation to the Complainant, nor for the “special hearing” for the recording of the complainant’s evidence. An initial directions hearing last week did not result in dates being set, a further directions hearing in relation to those has been set for 23 July, but it is not certain that dates will be fixed at that stage, even though such hearings would be before judge alone.
33 Finally, the restrictions due to Covid-19 emergency conditions in prisons, are relied upon as making remand more onerous – with personal visits suspended – and activities and programs either limited or suspended – and no current timetable for the lifting of these restrictions.
34 In relation to likely delay in the trial, this case is not one where there was already a trial date which had to be cancelled due to the COVID‑19 arrangements. As the Accused was not charged until 27 February, there was unlikely to be a trial date yet fixed. Nevertheless, I accept that there is real uncertainty at present about how long it might be before this trial will be held, and that uncertainty has increased even since the hearings last week, with some increases in restrictions of movement in the general community. The impact of those on conditions relating to resumption of jury trials is simply unknown at present.
35 As it is unlikely that the trial will occur this year, the Accused would be likely to spend at least a year on remand if not bailed, and quite possibly several more months than that. I do not regard there as having been any significant delay so far, and this case has not yet involved anywhere near the type of lengthy delays that are sometimes encountered. However, I accept that delay in standing trial is a strong consideration in deciding if there is a compelling reason to grant bail.
36 The prosecution argues that compelling reason has not been shown, but the main focus of its opposition to bail for Mr Sultana is that it poses unacceptable risks.
37 Although I do not accept that there has been any appreciable delay so far in the progression of Mr Sultana’s case to trial, the uncertainty of when the next steps are to occur - even a grounds rules hearing and a special hearing - highlights the uncertainty of the likely delay in the case reaching trial.
38 Not without some hesitation, I have decided that compelling reason to grant bail in this case has been established through a combination of circumstances, especially of the uncertainty of when this trial will be held, the more onerous conditions on remand, and there being real issues to be tried that might lead to an acquittal.
Unacceptable Risk
39 If the applicant satisfies the court that a compelling reason exists that justifies the grant of bail, the court must then apply the “unacceptable risk” test. Pursuant to s4E of the Act, the court must refuse bail for a person accused of any offence if satisfied that there is a risk that the accused would, if released on bail:
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail; and
the risk is an unacceptable risk
40 The prosecution bears the burden of satisfying the court as to the existence of a risk of a kind mentioned, that it is an unacceptable risk, which cannot adequately be mitigated through imposition of bail conditions.
41 The prosecution submits that there is risk that if bail is granted –
- the Accused may not comply with bail conditions;
- may commit further offences whilst on bail;
- may seek to contact and interfere with witnesses, especially the Complainant and her relatives; and
- may not appear and surrender to the court when required.
42 The prosecution called evidence from the Informant, Detective Leading S/C Harvey. In addition to the Applicant’s criminal record, and detail about a number of offences constituting breaches or defiance of other court orders, he gave evidence about his investigation of various residential addresses that have been proposed, including the one with Mr Hinds in Wangaratta, about his belief that the Applicant may commit other offences if bailed, and his belief that the Applicant is a flight risk. He also gave evidence that the Complainant and her relatives are scared that the Applicant knows where they live, as they have not been able to find suitable alternative accommodation.
43 A key part of Det Harvey’s evidence was that he has listened to ARUNTA calls – being recordings of telephone calls between the Applicant from prison and other people. In one of these he heard Ms P say that she will move out of the house in Wangaratta but have “sleep overs”, so the Informant does not believe she will remain away as if she had really moved out. Secondly, in a call with his mother the Applicant is said to have made threats to bash his stepfather for not supporting his residing with them for a bail application. Finally, the Informant said he listened to a conversation between the Applicant and Ms P in which there was discussion of purchasing drugs in Echuca and bringing them to Wangaratta to sell, this in the context that during this conversation it sounded as if she were using a bong and the Applicant took offence that she was smoking and enjoying herself while he was in prison. The Informant said that he believes the latter two calls indicate a risk that the Applicant will commit offences if bailed.
44 Defence counsel submitted that I should disregard the alleged conversation about going to Echuca to buy drugs to traffic in Wangaratta, because the Informant had not produced any notes taken at the time, and there was no copy or transcript of such call. There have apparently been notes of the Informant produced to the defence about the other calls. This submission was supplemented by comparison to the comments made by Elliott J in Re Ashton – after I invited counsel to consider comparisons with that case.
45 The prosecution submitted that I should not disregard the evidence of the Informant who said what he heard, despite having as he explained mislaid his notes taken about it at the time of listening.
46 I do not accept that the absence of a contemporaneous note about what was heard on that call renders it inadmissible. This is different from the content of affidavits criticized by Elliott J. The Informant was not directly challenged about what he said he heard in that call, such as that he could have mistaken its meaning, and certainly not that he had made it up or deliberately embellished an otherwise innocent conversation. The absence of a contemporaneous note when there apparently are notes of other calls may lead to some less weight being placed on it, but is not such as to render his evidence of it inadmissible.
47 I do not exclude that this call could reflect a plan to commit trafficking offences, but it is too uncertain a prospect, and apparently discussed while Ms P was using drugs herself, to enable a finding that it is likely to actually occur.
48 As for the threat in a call to his mother to bash his step-father, it is also not possible to make a finding that that offence is likely to occur. It does him no credit, but the chances of them being in each other’s company for that to occur is hard to predict, and it may well have been an angry form of expression of frustration.
49 While Mr Sultana may not regard smoking cannabis as abusing drugs, it is illegal to possess or use that drug, without a permit, and if caught doing so by police he would risk breaching bail.
50 The next issue raised by the prosecution is that I should not have confidence that Mr Sultana will comply with bail. In cross-examination of Mr Wayne Hinds, it was suggested that he would have no time or capacity to supervise Mr Sultana, due to his carer role for his son. Mr Hinds is a 61‑year-old retired interstate truck driver, who says he retired to become full-time carer for his son, who has mental health and physical disabilities. They have lived at these premises, rented through the Housing Commission, for almost three years. I do not accept that this was a significant criticism of the proposed arrangement, as in offering accommodation there is no obligation on Mr Hinds to actually supervise the Applicant. What is important is that he commits to notifying police if he becomes aware that the Applicant is breaching any of his bail conditions. Mr Hinds said that he would do that. He also said that he had previously allowed a person to stay at his house on bail, and that she had breached her conditions and he had reported that to police. Although not a formal undertaking, which would have been preferable, I am satisfied that if the bail conditions are made clear to Mr Hinds, he would report to police a breach such as if the Applicant moved out or was not complying with a curfew, to police. I am less convinced that he would report the smoking of cannabis if he found it occurring.
51 Mr Wayne Hinds has met Mr Sultana a few times, between first meeting him late last year, and then up to February of this year. This was in the context that Mr Sultana’s current partner, Ms P, has lived at Mr Hinds’ house in the spare bedroom for approximately a year. He has allowed that to assist her. She has asked Mr Hinds to allow Mr Sultana to live there if released on bail. She has agreed to move out, and is said to have moved out the night before the bail application hearing, for that purpose, and is staying with someone else in Wangaratta. That is because it has been accepted that it would be unsatisfactory for Mr Sultana to be living with her. There is in place a Family Violence Intervention Order against him, in which she is the protected person, but the conditions do not forbid contact between them; rather, they forbid assault or threatened assault or violence.
52 I am sceptical that Ms P really intends to live elsewhere if Mr Sultana is granted bail to live at the house in Wangaratta where she has lived for about a year. However, the FVIO protecting her does not prohibit their being in each other’s company subject to him not committing family violence against her. There are outstanding charges scheduled to be heard in October or November this year involving alleged assault of Ms P by Mr Sultana, and those events were the reason for the Intervention Order being made. Her apparent determination to make arrangements for him to be in Wangaratta near her, belies the chance that she will give evidence against him, but ultimately that is not relevant to this application, except if he went to the extent of committing an offence to bring that about.
53 Of more concern is the prospect that Mr Sultana might attempt to contact the Complainant, her relatives and carers, or other witnesses who observed him meeting the Complainant, and some of those are related to him. Had the Complainant moved addresses[3], this would be of less concern, but I accept the evidence that she and her relatives have not been able to do that, and Mr Sultana presumably recalls the location of the house where the Complainant lives. Nevertheless, if he is bailed to the proposed address in Wangaratta, there is a considerable distance – a drive of at least a couple of hours – which although not impossible would need to be travelled. In my view the risk of Mr Sultana physically approaching the Complainant or her relatives could be considerably reduced by bail conditions of an area prohibition and a curfew.
[3]Cf the circumstances in Re Che Ashton
54 My impression is that Mr Sultana sees only his own point of view about his conduct, and about his obligations when subject to specific court orders or the law generally. On this basis and his prior breaches of multiple types of court orders, there is some risk that he may not surrender himself to the court when required. However, if bail conditions impose constraints that enable police to be able to locate him, and to act promptly if he breaches bail conditions, that risk should be reduced
55 I am not satisfied that there is evidence of flight risk, as although he seems to have travelled a few times to Wangaratta between the end of August and being charged in late February, and although it took some days to locate him, there is nothing to prove that he sought to leave the state or country, or was deliberately evading police.
56 While I have some cynicism about how the bail address proposed has been arranged, and am sceptical about Mr Sultana’s attitude to compliance with court orders, the overarching guiding principles in s 1B (1) of the Act require the court to take into consideration the presumption of innocence and the right to liberty as well as maximising the safety of the community and persons affected by crime to the greatest possible extent. In considering the evidence before me, I have some concern that the Applicant may commit further offences, but not of a serious enough nature to warrant depriving him of his liberty for the uncertain time involved until his trial, when there can be conditions imposed to limit the prospect of further offending generally, and also the prospect of his contacting witnesses in the trial.
57 I have therefore decided to grant bail. The conditions are subject to submissions from counsel.
58 Proposed Conditions – subject to submissions
· Residential requirement
· Curfew from 7 pm - ? – and to present at door if police require;
· Reporting (subject to Covid-19 conditions) – each M, W & F
· Not to enter the suburb of Broadmeadows except to attend court or police station;
· Not to leave state of Vic
· Not to contact witnesses except the Informant
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