KWLD v Director of Public Prosecutions
[2016] VSC 709
•28 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0157
IN THE MATTER of an Application for Bail by “KWLD”
Between:
| KWLD | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2016 | |
DATE OF JUDGMENT: | 28 November 2016 | |
CASE MAY BE CITED AS: | KWLD v DPP | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 709 | |
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CRIMINAL LAW – Application for bail – Charges of grooming for sexual conduct with a child under 16 and failing to comply with reporting conditions as a registered sex offender – Applicant in custody since October 2015 – Applicant’s trial in County Court recently adjourned to commence in February 2017 – New charges of grooming also laid recently – Whether applicant, if granted bail, would present an unacceptable risk of offending or failing to answer bail – Applicant alleges dental health not being adequately addressed in custody – Strength or otherwise of prosecution cases – Applicant only 22 but has prior convictions for child sexual offences – Delay between arrest and trial – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr M Hennessey | John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by “KWLD”[1] in respect of two separate sets of charges.
[1] In a previous application for bail in this Court, Coghlan J described the applicant in this anonymised way (see Re KWLD [2016] VSC 4). In all of the circumstances, including that the alleged victims of some of the offences charged are children and that the applicant’s trial is due to be heard in the County Court in only a few months, I think it is appropriate to maintain that attempt at anonymity while at the same time publishing reasons for my decision.
The offences alleged in the first set of charges, which were laid over a year ago, include grooming for sexual conduct with a child under 16 and failing to comply with reporting conditions as a registered sex offender. The second set of charges, which have been laid only very recently, allege instances of grooming and related offending in respect of four children under 16.
The applicant has been in custody since 21 October 2015. His trial on the first set of grooming charges was due to commence in the County Court on 14 November 2016, but was adjourned that day to commence in February 2017. The charges of failing to comply with reporting conditions have been severed from the indictment and will be heard at a later time. No date has been set for the committal hearing on the second set of grooming charges.
In short, it is submitted by Mr Hennessey, who appears on behalf of the Director, that the applicant’s criminal history, the nature and number of similar allegations in both sets of charges and his proposed accommodation are such that I should be satisfied that there is an unacceptable risk that, if granted bail, the applicant will commit offences and fail to answer bail.[2]
[2] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
The applicant, who appears unrepresented before this Court, submits, among other things, that the delay between his arrest and trial, weaknesses in the prosecution case on some charges and difficulties he has had in securing proper dental treatment while in custody are matters that, in combination, should result in a grant of bail.
For reasons that follow, I am satisfied that there is an unacceptable risk that, if granted bail, the applicant would commit offences and fail to answer bail. Accordingly, I must refuse bail.
Summary of background, criminal history, alleged offending and procedural history
I turn now to summaries of the background to the matter, the applicant’s criminal history, the alleged offending and the procedural history of the matter.
The applicant is aged only 22. He hails from Western Australia.
In December 2010, at the age of 16, he appeared in the Children’s Court in Western Australia on charges including breaching a violence restraining order, making a threatening statement, possessing child exploitation material and stalking. He was placed on a youth community based order for nine months.
In September 2012, at 18, he appeared in the same court on 13 charges, including aggravated burglary, deprivation of liberty, possession of child exploitation material and six counts of sexual penetration of a child and one of attempting to do so. The offences concerned four girls aged 13 to 15. He was sentenced to a total effective sentence of two years and six months’ imprisonment, with eligibility for parole. That sentence was directed to commence on 16 November 2011, when he was taken into custody for the offences, at the age of only 17. The applicant was self-represented on his subsequent (unsuccessful) applications for leave to appeal against conviction and sentence in the Court of Appeal of Western Australia.[3]
[3] See KLWD v The State of Western Australia [No 4] [2013] WASCA 185.
In October 2014, the applicant appeared in the Magistrates’ Court of Western Australia for failing to comply with his reporting obligations under Community Protection (Offender Reporting) Act 2004 (WA). He was fined.
On 15 May 2015, the applicant travelled to Victoria from Western Australia. At that time, he was still a registered sex offender under the West Australian legislation. That status made him liable to similar reporting conditions under the Victorian Sex Offenders Registration Act 2004 (Vic). These obligations were explained to him by police on 28 May 2015.
On 21 October 2015, the applicant was arrested by police in Victoria. He was interviewed, and made admissions, in respect of Facebook communications he had had with a girl aged 12 and another aged 14 in May and June 2015. He was also interviewed about a new tattoo he was sporting and his recent travel to Queensland, the latter of which he believed to be permissible in accordance with his reporting obligations. He was charged with failures to comply with his reporting obligations under the Victorian Act. Later that day, he applied for bail before the Magistrates’ Court, but the application was refused. He has remained in custody ever since.
On 12 November 2015, the applicant appeared in the Magistrates’ Court at Melbourne on the charges concerning Facebook communications with the girls aged 12 and 14. He pleaded guilty and was sentenced to four months’ imprisonment and a community correction order (“CCO”) of 18 months’ duration.
On 16 November 2015, the applicant lodged an appeal to the County Court against his sentence. The appeal was listed for hearing on 22 February 2016.
On 26 November 2015, the applicant applied, in the Magistrates’ Court, for bail pending his appeal. The application was refused. The magistrate found that there was an unacceptable risk that, if granted bail, the applicant would commit offences, endanger the safety and welfare of members of the public and fail to appear.
The same day, the applicant consented to an interview by police while in the cells under the Magistrates’ Court. Following the interview, he was charged with the first set of charges the subject of the current application for bail – i.e. the allegations of grooming a child and of breaching his reporting obligations between May and October 2015. The grooming allegations concern an intellectually disabled girl of 15. It is alleged that, using an alias, in October 2015, the applicant contacted the child on Facebook and via SMS messages, pretended he was 15 and had inappropriate conversations with her with the intention of facilitating her involvement in a sexual offence. (Subsequently, Commonwealth charges of a similar nature were added in respect of this child.) The alleged failures to comply with reporting obligations concerned his new tattoo, travelling to Queensland and using aliases on the internet.
On 23 December 2015, the applicant applied for bail in this Court on both the appeal matters and the new charges. He appeared without legal representation. The application, which was heard by Coghlan J, was refused – again on the basis of unacceptable risk of offending and failing to appear.[4]
[4] See Re KWLD [2016] VSC 4.
On a date that is unclear on the material, but which I assume was 22 February 2016, the applicant’s appeal against sentence was heard in the County Court. I was told by the parties that the four-month gaol term was confirmed but the order was varied so as to allow commencement of the CCO upon his ultimate release from prison.
On 11 May 2016, the applicant consented to another police interview while in custody. Allegations were put to him concerning what was to become the second set of charges the subject of the current application. He declined to comment on the allegations.
On 1 and 2 August 2016, the applicant faced a committal hearing on the first set of charges the subject of this application. He appeared without legal representation. A charge was withdrawn, as another had been on an earlier occasion. He was committed for trial in the County Court on the remaining charges.
On 9 September 2016, the applicant applied for bail in the County Court. The application was heard by Judge Sexton. The applicant, who was unrepresented again, raised issues about, among other things, the adequacy of his dental treatment in prison. Her Honour expressed concerns about the applicant’s dental treatment but nevertheless refused the application as she was satisfied that, if bailed, there would be an unacceptable risk of offending by the applicant or of his failing to answer bail.
On 12 September 2016, the informant requested a fourth interview with the applicant. The applicant understands that his solicitor advised the informant that he declined to be interviewed on this occasion.
On 7 November 2016, the applicant filed the present application for bail, together with a supporting affidavit.
On 14 November 2016, the applicant appeared at his trial before Judge Montgomery in the County Court. He was represented by counsel. The Director indicated that there was no opposition to an application for severance of the grooming charges from the charges of failing to comply with reporting obligations. However, the trial was adjourned to February 2017, as the Director had only recently supplied voluminous additional material which (unbeknown to his lawyers) the applicant had sought directly from the informant, which counsel had not had an opportunity to consider.
On 16 November 2016, the informant laid 14 fresh charges against the applicant. These are the charges of grooming and the like concerning the additional four children. In short, it is alleged that, between January 2014 and October 2015, by use of Facebook, the applicant groomed four girls aged between 13 and 15 for sexual activity. One of those girls lived in Western Australia. It is also alleged that the applicant committed an indecent act with another of the girls, by getting into bed with her when semi-naked.
In the course of the hearing, it became apparent that, while the applicant was brought before the Magistrates’ Court (via video-link) on 18 November 2016 on the fresh charges, he had not seen those charges or the police summary of the allegations said to support them. In those circumstances, I stood the matter down so that the applicant could consider whether he wished to apply for bail before this Court or the Magistrates’ Court in respect of these fresh charges and, if the latter, whether he wished to defer the present application in this Court until bail had been determined on the fresh charges. He chose to have this Court determine bail on the fresh charges as well as the old charges.[5]
Parties’ submissions
[5] Mr Hennessey accepted that this Court had jurisdiction to hear the application concerning the first set of charges, whether because of this Court’s inherent jurisdiction over matters of bail or because the recent adjournment of the applicant’s trial amounted to new facts and circumstances (see ss 18(1) and 18AA(1)(a) of the Bail Act 1977 (Vic)). That he was unrepresented at the most recent application before Judge Sexton is another basis for jurisdiction to hear the matter (see s 18AA(1)(b)). There could be no issue that this Court had jurisdiction to hear the application in respect of the fresh charges (see s 13(1)).
Introduction
I turn now to the parties’ submissions. While I have considered all of them, I do not intend to rehearse each one in these reasons. Rather, I shall deal with what I understand to be the applicant’s principal submissions and Mr Hennessey’s responses thereto.
Before doing so, I should add that the applicant’s submissions suffered little, if at all, from the fact that they were delivered without representation. The applicant is very articulate and obviously highly intelligent. He writes clearly (and drafted his affidavits in a hand that would put most to shame). He marshalled the materials and ordered his cross-examination of the informant and his submissions in a thoughtful and helpful manner.
I also wish to record that the Court is grateful to Mr Hennessey for his considerable assistance on the application. Perhaps counter-intuitively, it is not always easy as counsel to be opposed to an unrepresented litigant. It is, I think, a particularly difficult task as a prosecutor in a criminal matter. But, if I might say so, I think Mr Hennessey struck that awkward balance perfectly.
Dental health treatment
Now, to the submissions.
First, the applicant submitted that there will be cases in which the circumstances of a person’s incarceration are such that, despite the presence of an unacceptable risk of the kind spelt out in the Bail Act 1977 (Vic), a point is reached where it is nevertheless proper to grant bail. I accept that submission. However, the question is whether the applicant’s case falls into that category.
While he also referred to other matters (including difficulties accessing counselling and courses in prison, inadequate access to resources to prepare his case, overcrowding, and yet more delay in hearing his trial because of the recent adjournment), as I understood him, the applicant’s major complaint in this regard is that the manner in which his dental health has been managed in prison is so unsatisfactory that the tipping point has been reached in his case, such that bail should be granted.
In December 2015, a problem with the applicant’s wisdom tooth was identified. In May 2016, he was referred to a specialist at St Vincent’s Hospital to remove the tooth, and its roots, under surgery. As a result of transfers within the prison system, however, he was unable to get in for surgery in the short term. Subsequently, a dentist within the prison system said he would remove the tooth manually instead. The applicant said he would prefer to continue to take pain relief until he could have surgery performed by a specialist, as his referral dictated. The applicant says that he was sent back to the same dentist three times, who eventually threatened to deny him pain relief and antibiotics unless he agreed to have him remove the tooth. He says that the dentist refused to look at his referral letter. As I understood him, the applicant also claims to have suffered infection and pain as a result of the delay in having surgery and the reduction in his medication.
The applicant filed an affidavit, sworn 17 November 2016, annexing numerous records of complaints along these lines documented by the Health Services Commission (“HSC”).
Also annexed to the affidavit is an HSC document entitled “A2 Assessment: Decision to accept/decline/refer”, dated 2 October 2016. Under the headings and sub-headings “Recommendation”, “Accept” and “Reasons”, a box is marked beside the option “Provider acts unreasonably: in providing a health service s 16(1)(c)”. The applicant submits that this shows that the HSC has accepted his complaint that his dental treatment has been unreasonable.
He also referred to s 47(1)(h) of the Corrections Act 1986 (Vic), which provides that every prisoner has the right to have access to reasonable dental treatment necessary for the preservation of dental health.
If the applicant’s claims are accurate, it strikes me that his dental health might not have been managed in a reasonable manner or in a manner consistent with the terms of s 47(1)(h).
One measure of a civilized society is how our corrections authorities treat prisoners and those on remand awaiting trial, whatever the nature of their offences or charges. It is understandable that some might say that no inadequate treatment of the type alleged here is too harsh for those convicted, or even just accused of, serious crimes. But, in their heart of hearts, those who might say or think such a thing know it is not right. Whether viewed as a matter of maintaining human dignity or as a utilitarian recognition of the reality that most in custody will have to be returned to the community sooner or later, society has an interest in ensuring reasonable treatment of prisoners and those on remand so that they might have a better chance of successful reintegration back into the community upon their release.
However, as troubling as the applicant’s predicament may be, I accept Mr Hennessey’s submission that I am not in a position on an application such as this, or on the material before me, to determine finally the validity or otherwise of the applicant’s complaints about his dental treatment within the prison system. The applicant’s claims, made in part in the affidavit material and in part from the Bar table, have not been tested in any serious way. Further, I have heard from no experts on dental treatment or from those who are accused of failing to provide adequate treatment.
Nevertheless, I have seen and heard sufficient to cause me to urge the relevant authorities to look into the matter as soon as possible.
I should add that, if, because of inadequate treatment in gaol, a remandee’s dental health deteriorated to a point that he or she was unfit to stand trial, that would be a shameful state of affairs. It might also create a situation that, depending on the particular circumstances, resulted in an adjournment of the trial, the need for an explanation to the court hearing the matter from the relevant authorities and, in turn, a reconsideration of whether the remandee should be in custody or on bail when otherwise there should be no such issue. Obviously, such a situation is to be avoided, if at all reasonably possible.
All of that said, in the circumstances of this case, while I think the authorities should investigate the matter immediately, and I expect them to do so, I do not consider that the applicant’s dental health concerns, even if found to be valid and accurate, could be such that he should be granted bail if the Director otherwise satisfied the Court of an unacceptable risk or risks of the kind relied on in this case.
Unacceptable risk of offending on bail
I turn now to those questions. For the second principal submission of the applicant is that, in light of various factors, including weaknesses in the prosecution case, the availability of strict bail conditions, the conditions of his CCO and his sex offender reporting obligations, I should not be satisfied that there is an unacceptable risk that, if granted bail, he would commit offences.
I do not accept that submission. On the contrary, in light of the applicant’s history of offending against young girls, the nature and number of the outstanding allegations, the absence of any meaningful supports in the community and the absence of an address with a degree of permanence about it, I accept Mr Hennessey’s submission that I should be satisfied that the Director has discharged the onus of establishing that there is an unacceptable risk that, if granted bail, despite stringent conditions and obligations, the applicant would commit further offences and thereby endanger the welfare of female children.
While I accept that there are aspects of the case against the applicant that appear weak, there also appears to be sufficient evidence to classify other aspects of the case as reasonably strong. The applicant’s prior convictions suggest he has a disturbing proclivity for engaging in sexual behaviour with young girls. The outstanding charges involve allegations of a similar, albeit mostly preparatory, nature against girls of the same age. Further, I do not think that, in this case, strict bail conditions would alleviate an unacceptable risk of offending of that type, which is effected mainly by use of the internet and social media, which are both ubiquitous and easily accessible.
Unacceptable risk of failing to appear
The applicant’s third principal submission is that, in light of the availability of accommodation and, again, strict conditions of bail and the need to comply with his CCO conditions and sex offender reporting obligations, I should not be satisfied that there is an unacceptable risk that, if granted bail, he would fail to appear.
I should note that I accept the applicant’s submission that his travel to Queensland in October 2015 should not be held against him in this regard. Indeed, it might be said that the manner in which he dealt with that issue with the informant should be regarded as pointing to a preparedness to honour his sex offender reporting obligations and, by extension, a willingness to face trial.
However, having considered all of the circumstances, I am satisfied that the Director has discharged the onus of establishing that there is an unacceptable risk that, if granted bail, the applicant would fail to appear. There are several reasons.
First, the applicant has no ties to the jurisdiction. He has no family or other support here in Melbourne. Secondly, in such circumstances, the proposed accommodation – a backpacker hostel, no less – is not the type of residence that has an element of permanence or stability that might give comfort that he will stay put. Thirdly, there is evidence that he left Western Australia knowing that he was wanted for breaching sex offender reporting conditions there. Fourthly, while strict bail conditions might go some way to alleviating the risk of flight, they do not adequately offset my concerns that there is an unacceptable risk that he would fail to appear. Fifthly, given the applicant’s prior convictions and the nature of the charges he faces, he is at risk of a substantial sentence of imprisonment if convicted. Thus, the incentive for him to avoid trial must be strong.
Conclusions and order
I turn to my final conclusions.
I am reluctant to refuse bail to such a young man. As I have said, he is only 22. He was only 21 when he was taken into custody over a year ago. I am troubled that his dental health may not be being managed adequately in prison. It is also a pity that his trial on the older charges has had to be adjourned for another three months and that he has only just been charged with new matters that have been the subject of investigation for over a year.
Equally, however, the applicant has a troubling criminal history for one so young, and the outstanding charges concern behaviour with girls of the same tender age as those the subject of his prior convictions. Further, he has no meaningful support in or ties to the community and he faces a substantial term of imprisonment if convicted.
I am conscious of the requirement that, in order that bail may be refused, it is not just any level of risk of the type relied on that will avail the Director. Rather, that risk must be unacceptable. For the reasons I have given, I am satisfied that there is an unacceptable risk that, if granted bail, the applicant would commit offences and fail to answer bail.
Accordingly, I am satisfied that I must refuse bail.
The order of the Court is that bail is refused.
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