R v Carioti - [2004] SASC 205

Supreme Court of South Australia
(Criminal)
R v CARIOTI
Judgment of The Honourable Justice Gray (ex tempore)
16 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING
Application for review of bail - bail refused by a magistrate - psychological and bail enquiry report tendered - history of offending against victim - history of breach of bail - consideration of the Bail Act 1985 (SA) - application refused.
Bail Act 1985 (SA) s 10, s 11, referred to.

R v CARIOTI
[2004] SASC 205
Bail Review

GRAY J This is an application for bail review.
The accused, Salvatore Carioti is charged with offences including aggravated serious criminal trespass in a place of residence, assault, assault occasioning bodily harm and larceny. The accused was initially refused police bail on 15 March 2004 and again by a magistrate on 19 March 2004.
In refusing bail the police noted that the accused had breached conditions of bail on 14 prior occasions, that he was currently without a home address, his extensive history of similar offending and that the accused was on bail at the time of the current alleged offending.
No reasons for refusal were provided by the magistrate. The certificate of record for the hearing provides:
No proper bail submissions and change in circumstance. HH suggest the deft instruct his lawyer and put a proper bail application before the court.
The accused instructed counsel to make a further application for bail on 2 April 2004. No reasons were provided by the magistrate for the refusal to grant bail on this occasion. It is this refusal of bail that the applicant seeks to review.
On a separate information also dated 15 March 2004 the accused was charged with property damage and two counts of failing to comply with a bail agreement. He was refused police bail. He did not make an application for bail for this offending.
Section 10 of the Bail Act 1985 (SA) sets out the relevant criteria to be addressed when considering bail. There is a presumption in favour of bail. A court is to grant bail unless satisfied that bail should not be granted.
A bail enquiry report provided to the court restated the position expressed in an earlier report that risk assessments showed the defendant to be at a high risk of re-offending. The author stated that Mr Carioti’s response to supervision was generally evasive and that he continued to minimise his own offending while blaming the alleged victim. The report further stated that the accused:
…seems to have difficulty in appreciating the reality of his bail conditions in particular condition 6:
“Under no circumstances will I contact, communicate with directly or indirectly or be within 20 metres of Deborah Blundell and if approached by Deborah Blundell anywhere for any reason, to immediately leave.”
With the consent of the parties, a psychological report was also obtained. The psychologist Karen Heseltine observed:
… It is my opinion that Mr Carioti will be at high risk of assaultive recidivism toward [the victim] and failing to comply with Court ordered sanctions, under the following situations, when he is under the influence of alcohol, in the company of Debbie, and argument ensues, and he is prevented from leaving the situation. Therefore, to reduce the likelihood of recidivsm, Mr Carioti will need to reduce his level of alcohol consumption, develop more effective interpersonal communications skills, modify his antisocial attitudes and beliefs that are supportive of aggressive behaviours and accept responsibility for his actions.
Ms Heseltine expressed concern at Mr Carioti’s history of failing to comply with bail agreements. She also suggested that Mr Carioti should participate in the Department of Correctional Services Domestic Violence program - a drug and alcohol treatment program.
Recommendations to reduce the risk of Mr Carioti assaulting [the victim] are not straightforward, as he denies any wrongdoing on his part, he attributes most of the responsibility for his current charges to others, he lacks empathy for his alleged victims, and he would like to see Debbie incarcerated for her actions. It is my opinion that such cognitions will reduce the likelihood of Mr Caritoi engaging in intervention and indeed complying with a Bail Agreement.
It is my opinion that to reduce the likelihood of future violence, Mr Carioti should be considered as a candidate for the Domestic Violence Program. It is understood that an assessment has already been undertaken, if he was unsuitable for the program (possibly due to his high level of denial), he should be offered psychological intervention to address his interpersonal violence. This would need to take into account his high level of denial, lack of motivation to engage in treatment and his narcissistic and histrionic personality traits. In addition, this treatment should address Mr Carioti’s level of substance abuse.
As earlier observed, the accused has been charged with serious offences allegedly committed whilst on bail. The circumstances of the alleged offending are that the accused attended at Ms Blundell’s home early in the morning, entered by force causing damage to the house and assaulted Ms Blundell and her father who were in the house at the time. If established, this offending represents serious criminal conduct and a serious breach of the terms of Mr Carioti’s bail agreement, particularly the term that he must not attend at the home of Ms Blundell or contact her directly or indirectly. The alleged breach of bail is particularly serious having regard to the many warnings that the accused has received.
The Director of Public Prosecutions opposed the application. It was said that the gravity of the offending militates against a grant of bail in this case. Counsel for the Director was concerned with the risk that the applicant would further offend if granted bail. The accused has failed to comply with conditions of previous bail agreements on numerous occasions. He has been convicted for his failure to comply.
The applicant’s antecedent report disclosed convictions for traffic and drug offences, damaging property, assault police, trespass and breach of bond and bail agreements. He has received fines, community service and convictions for these offences. He served a term of imprisonment when a suspended sentence was revoked following a breach of bond.
Counsel for the Director also raised the concern that Mr Carioti may seek to intimidate Ms Blundell. Indeed, despite a restraining order in place, the applicant made telephone contact with Ms Blundell immediately following his arrest in breach of his bond conditions.
Counsel referred the court to Mr Carioti’s extensive warrant history including numerous warrant issued whilst he was on home detention bail. It was emphasised that the applicant had previously had the advantage of an order for home detention bail with electronic monitoring. It was said that he had breached the terms of that bail by the conduct that gave rise to further alleged offending. These are important matters to be weighed when considering a grant of bail.
Ms Haseltine’s psychological report recommended that Mr Carioti receive treatment for his problems with domestic violence and drug and alcohol abuse. It is clear from that report, and the bail enquiry report, that Mr Carioti does not accept that his behaviour in contacting Ms Blundell, or that his behaviour in the circumstances that led to the current alleged offending, was in any way wrong. The reports provided to the court suggest that he would not seek the treatment that has been recommended for him were he released from custody.
Mr Carioti’s history of offending, in particular repeated offences against Ms Blundell, indicate that he is not a good candidate for bail.
The application for bail review is refused.