Lillyman v The Queen - [2020] SASC 55

Supreme Court of South Australia
(Criminal: Application)
LILLYMAN v THE QUEEN
[2020] SASC 55
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
6 April 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of bail.
The applicant was charged with four offences of violence allegedly committed against the victim, his de factor partner. He allegedly choked and headbutted the victim, contrary to ss 20A and 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). On another day, he allegedly grabbed the victim by her hair and slapped her across the face and grabbed her nose and squeezed it, contrary to s 20(3) of the CLCA.
The Bail Act 1985 (SA) (the Bail Act) provides that a person taken into custody in relation to an offence against s 20A of the CLCA is a prescribed applicant. Section 10A of the Bail Act provides that a prescribed applicant is not to be granted bail unless the applicant establishes the existence of special circumstances justifying his or her release on bail.
The applicant contends that special circumstances exist and relies on, amongst other things, the COVID-19 pandemic.
Held per Kourakis CJ, dismissing the application:
1. A weak prosecution which is bound to fail is a special circumstance for the purposes of s 10A of the Bail Act, but that has not been shown here.
2. Home detention bail would not much alleviate the victim’s perceived need for protection.
3. In the absence of particular information about the current conditions at the prison in which the applicant is in custody and how the applicant is being treated, little weight can be placed on the COVID-19 consideration.
4. Special circumstances do not exist for granting bail.
Criminal Law Consolidation Act 1935 (SA) ss 20, 20A; Bail Act 1985 (SA) ss 10, 10A, referred to.

LILLYMAN v THE QUEEN
[2020] SASC 55

KOURAKIS CJ (ex tempore): This is an application for the review of a decision refusing Mr Lillyman bail made in the Port Pirie Magistrates Court on 16 March 2020. Mr Lillyman had been taken into custody either on that day or the day before, 15 March 2020, on four offences of violence allegedly committed against his de facto partner, Ms Hoggan.[1]
[1] Contrary to ss 20(3) and 20A(1) of the Criminal Law Consolidation Act 1935 (SA).
The most serious of the offences is that on 15 February 2020, in Port Pirie, he choked Ms Hoggan (the strangulation charge), contrary to s 20A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The Bail Act 1985 (SA) (the Bail Act) provides that a person taken into custody in relation to an offence against s 20A of the CLCA is a prescribed applicant.[2] Section 10A(1) of the Bail Act provides that a prescribed applicant is not to be granted bail unless the applicant establishes the existence of special circumstances justifying his or her release on bail.
[2] Bail Act 1985 (SA) s 10A(2)(d)(i).
Mr Lillyman was charged with assault by way of an alternative to the strangulation charge. He was also charged with assaulting Ms Hoggan by headbutting her as she was trying to walk past him on the same day.
When spoken to by the police, Mr Lillyman said that he took hold of Ms Hoggan by the neck because he wanted to kiss her and, as to the other offence, that it was, in fact, Ms Hoggan who headbutted him.
Mr Lillyman was also taken into custody on charges that on 15 March 2020 he grabbed Ms Hoggan’s hair and then slapped her across the face, and that later on the same day, he grabbed her nose and squeezed it.
In a statement affirmed 15 March 2020, Ms Hoggan deposed that Mr Lillyman abused her, calling her, amongst other things, a ‘slut’, ‘an infection’, a ‘mutt’ and a ‘mouldy rat’. She explained that on past occasions when Mr Lillyman had slapped her or grabbed her nose, he would tell her that what he was doing was not actually hitting her.
Ms Hoggan also deposed that Mr Lillyman would often threaten her that he would be the reason she would die. Not surprisingly, she said that she was terrified by Mr Lillyman’s vents. Ms Hoggan also disclosed that Mr Lillyman has threatened to kill himself.
Counsel for Mr Lillyman submits that on Ms Hoggan’s own statement the strangulation charge cannot be proved. Ms Hoggan deposed that Mr Lillyman squeezed her so hard that she almost blacked out and that she was gasping for air. Exactly what Ms Hoggan meant may well be explored at trial. I do not, however, read her statement that she almost blacked out as necessarily meaning that she could still take a breath. It may take some time before a person faints or blacks out after breathing has stopped. Equally ‘gasping for air’ is capable of describing an unsuccessful attempt to breathe or a quick short breath taken after the squeezing of the neck stopped. I am, therefore, not satisfied that on Ms Hoggan’s description, the strangulation charge would not be made out. I accept that a weak prosecution which is bound to fail is a special circumstance for the purposes of s 10A of the Bail Act, but that has not been shown here.
The special circumstances contemplated by s 10A of the Bail Act are, at least primarily, those circumstances which would negate the risk to the alleged victim or the public which arise out of the prescribed charges. The circumstances described by Ms Hoggan are the paradigm of the offence of strangulation. Parliament, by prescribing s 20A of the CLCA, has declared that in the generality of cases the protection of the alleged victim will outweigh the presumption of bail. There are no special circumstances in the allegations made here that would substantially alter that balance.
Turning to other matters, I indicate that I place very little weight on Mr Lillyman’s prior breaches of bail, because so many of them were committed when he was a youth.
As to the sentencing options available should Mr Lillyman be convicted, I acknowledge that he would have some grounds on which to ask for a rehabilitative sentence. He has no prior offences of violence, served a sentence and successfully completed a period of parole, on what were essentially theft or dishonesty offences. However, if the allegations are made out and he is convicted, the alleged offending is too serious to proceed on the premise that he would necessarily, or even likely, be given a non-custodial sentence.
I am required by s 10(4) of the Bail Act to give significant weight to both the need to protect the victim and the victim’s perception of the need for protection. The alleged victim, Ms Hoggan, lives just 600 m away from Mr Lillyman’s proposed residence. No bail condition, and no police response, could be effective should he decide to breach home detention bail, irrespective of any restrictions on movement that could be imposed. Finally, there is no doubt, and I am satisfied, that home detention bail would not much alleviate Ms Hoggan’s perceived need for protection.
Counsel for Mr Lillyman has relied on the measures which have been taken by courts and prison authorities in response to the COVID-19 pandemic. First, I accept that there will be delays in the hearing and determination of the charges brought against Mr Lillyman. I acknowledge, however, that it is not possible to be precise about just how long those delays will be.
I have been provided with an affidavit of Ms Gransden, the COVID-19 Coordinator for the Department for Correctional Services (the Department) on the measures which have been taken to manage prisons. I, of course, accept what Ms Gransden has said about the measures taken to reduce the risk of COVID-19 infections in prisons and that as of 31 March 2020 there were no confirmed cases. I am also informed by counsel for the respondent that, up to 6 April 2020, there are no confirmed cases of COVID-19 within the South Australian Correctional Services system. That does not mean, of course, there was not such a case in the past and on the information provided to counsel for Mr Lillyman there may well have been. However, I am satisfied that if there were, the Department has taken the necessary measures to clean the spaces where that prisoner was detained and to screen persons who were in close contact with him.
I do not accept that prisons are premises with a higher COVID‑19 risk than other premises. Indeed, in a sense, there might be a lower risk that someone in prison would contract COVID-19 because of the screening measures which are taken before receiving persons into prison, and because few of them are likely to have had contact with someone travelling from overseas. On the other hand, I accept that if a prisoner were to contract COVID-19, the conditions in prisons are such that rapid infection of other prisoners is likely.
I acknowledge that measures might be taken to protect against the spread of COVID-19 in prisons, which make imprisonment a heavier burden than it ordinarily is. However, in the absence of particular information about the current conditions in Port Augusta Prison, and how Mr Lillyman is being treated, I cannot, at this stage, place much weight on that consideration. It may be that over time it will become apparent, and evidence may be placed before the Court, of lockdowns and restrictions in prison, which will require the question of bail to be reconsidered. Plainly, if there were to be a COVID-19 outbreak in Port Augusta Prison that, too, would be a strong reason to reconsider the question of bail. And, finally, if it becomes apparent that delays in the hearing and determination of his charges will be such that a period approaching the sentence he might have to serve will have been spent on remand then, again, a review might be necessary. However, it is too early to act on these concerns now.
On the state of the material before me, for the reasons I have given, Mr Lillyman’s offending is the very kind of offending that Parliament must have had in mind in reversing the presumption of bail for strangulation charges. The other factors on which counsel for Mr Lillyman rely do not, at this time, amount to special circumstances.
I dismiss the application for review of bail.