R v Carlton

[2015] NSWSC 2001

Supreme Court

New South Wales

Medium Neutral Citation:	R v Carlton [2015] NSWSC 2001
Hearing dates:	17 December 2015
Date of orders:	17 December 2015
Decision date:	17 December 2015
Jurisdiction:	Common Law - Criminal
Before:	Fagan J
Decision:	Detention application refused.
Catchwords:	BAIL – show cause offence – bail granted after verdict of guilty at trial up to sentence proceedings – detention application – unacceptably long adjournment of sentence proceedings for four months – acquiescence of Crown in grant of bail and length of adjournment
Legislation Cited:	Bail Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Category:	Principal judgment
Parties:	Regina (Offender) Andrew Julian Carlton (Respondent)
Representation:	Counsel: Maria Cinque (Offender) Angela Cook (Offender)
File Number(s):	2015/346901
Publication restriction:	Non-publication order as to name of the complainant and anything which might identify the complainant (as ordered by Jeffreys DCJ on 2 November 2015)

Judgment

1. On 17 December 2015 I heard a detention application brought by the Crown in relation to Andrew John Carlton. He was charged on 12 November 2014 with one count under s 61J Crimes Act 1900 (NSW) that on 11 November 2014 he had sexual intercourse without consent with a girl of 11 years, being digital vaginal intercourse. He was granted bail on this charge up to the date of his trial in the District Court and throughout the trial, upon strict conditions to ensure that he would have no contact with the victim or her mother and otherwise to minimise the risk of reoffending. A $10,000 security agreement was required and was given. It was a condition of bail that he report to police initially three times per week, reduced to once weekly after about five months of his compliance.

Bail history

2. The bail conditions were observed and the offender answered his bail by attendance for arraignment and throughout his trial. The trial commenced before Jeffreys DCJ on 2 November 2015 and continued to 12 November 2015, when a verdict of guilty was returned. The offender was convicted and then sought an adjournment of sentence proceedings of “about six weeks” for the purpose of obtaining “subjective material”. 12 November 2015 was only five weeks from the end of term. His Honour advised that he would be sitting in Gosford for three weeks at the commencement of the new term in 2016 but would be back in Sydney from 22 February 2016. After a brief discussion, 4 March 2016 was adopted as the date for sentence proceedings, being the first date after 22 February 2016 which suited both his Honour and defence counsel.

3. The Crown did not oppose the adjournment to this date or the continuance of bail in the meantime. The Crown has subsequently reconsidered and changed its position on bail. The Crown has submitted, correctly in my opinion, that a sentence of full time custody appears, on presently known information, inevitable. That submission and my acceptance of it take into account both the gravity of the crime and the offender’s subjective circumstances. The Crown now seeks detention of the offender pending the imposition of sentence, urging that given full-time imprisonment is the likely outcome for the offender in this case, he is not able to show cause for bail to be continued (as he must do under s 16A(1) because the offence is within s 16B(1)(b)(i)).

4. On 17 December 2015 I refused the Crown’s detention application and gave brief ex tempore reasons for doing so. This judgment contains my reasons for the decision in more detail than it was possible to address in the course of a long bail list on 17 December 2015.

The adjournment of sentence proceedings was unacceptably long

5. I consider that the length of the adjournment granted in this case, being four months from verdict to the sentence hearing, was in itself unacceptable. It was an adjournment of 10 weeks of the Court’s sitting dates (five weeks at the end of 2015 and five weeks in the first term of 2016) plus the long vacation of six weeks. If public confidence in the administration of criminal justice is to be maintained a jury’s verdict on any charge, in particular on a charge as serious as this, must be given effect by the fixing of penalty with much greater dispatch than a four month delay – absent some unusual and unavoidable cause.

6. I have no power to alter this aspect of what the trial judge ordered on 12 November 2015. I cannot exercise control over the listing of a sentence hearing which must necessarily be fixed before the trial judge himself and which is therefore dependent upon his Honour’s other commitments.

7. Because the offender’s counsel sought this long adjournment and because the Crown did not oppose it, his Honour did not treat the sentence hearing as so pressing that time should be made for it, for example by taking a morning or an afternoon out from other trials which would be listed before his Honour in the meantime. With respect, I consider that his Honour should have overridden the consensual stance of the parties and forced upon them an earlier date for the sentence hearing.

8. Given the impending long vacation and the trial judge’s commitments in February, the Crown should have pressed for an adjourned date within the five weeks before the end of the 2015 term.

Offender’s personal circumstances

9. The offender was born 29 September 1970 and was aged 44 years at the time of the offence. He is now 45 years old. He is a voiceover artist and he coaches other such artists. He has no criminal record. He was married and has two children by that marriage, a girl now aged 11 years and a boy of 8 years. These children are in the custody of their mother. They attend a private school.

10. Since separating from his wife in about 2010 the offender has assumed responsibility to pay the children’s school fees of $40,000 per annum. The offender’s former wife is also a voiceover artist and voice coach. She works in a consultant and freelance capacity earning about $37,000 per annum.

The need for cause to be shown and the absence of bail concerns

11. The Crown has submitted that for bail to have been continued in the face of the offender’s conviction of this offence and despite what the Crown says is the inevitability of a sentence of full time custody is to treat the jury’s verdict as in some way conditional. I regard that as an overstatement, although as I have observed above, I do consider that the length of the adjournment of the sentence hearing is unacceptable.

12. The proceedings relating to sentence are “substantive proceedings for an offence” by force of sub ss (1)(c) and (3) of s 5 of the Bail Act 2013 (NSW). Pursuant to s 8, a bail decision was open to be made by the trial judge because the sentence proceedings are pending before the District Court and s 12(4) permitted the trial judge to continue the bail.

13. In this case, as in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 (“DPP v Tikomaimaleya”), a matter of considerable significance to whether the offender can show cause is that the presumption of innocence no longer applies, a verdict of guilty having been returned: see DPP v Tikomaimaleya at [26], [29] and [35]. This is a factor tending against cause being shown. However the Court in DPP v Tikomaimaleya did not lay down that cause could never be shown why detention is not justified after verdict where full-time custody may appear inevitable. In such a case it may nevertheless be open to a trial judge (or to this Court) to find that detention up to an adjourned date for sentence hearing or up to the date when sentence is pronounced is not justified. Further, moving to the second step in the bail determination process provided for in the Bail Act, it may in such a case be found by a trial judge that, even if one or more bail concerns exists, it is capable of being adequately met by suitably stringent conditions so that bail need not be refused, pending sentence, under s 18(1).

14. The Court of Criminal Appeal in DPP v Tikomaimaleya observed at [20] that the Bail Act “does not prescribe what must or might be considered in relation to” the question “whether cause has been shown why detention is not justified” where that question has to be answered under s 16A. The Court recognised that matters relevant to the assessment of “bail concerns” (as defined in s 17) and relevant to whether, upon such assessment, an acceptable risk would attach to release on bail (as provided for in s 18) will “in many cases… also be relevant to the show cause test”: at [24].

15. The matters defined as “bail concerns” in s 17 – namely, concerns about non-attendance, commission of further offences, endangering victims, individuals or the community and interfering with witnesses or evidence – are inherently of potential relevance to whether detention of a particular offender is or is not justified. The inherent potential relevance arises quite independently of these matters having been statutorily specified as considerations to be evaluated in deciding whether risks in relation to them are unacceptable (the second step in the process prescribed by the Bail Act). The nature and purpose of detention pending resolution of criminal proceedings and the nature and purpose of the alternative (that is, a grant of bail) are such as to dictate that considerations of risks of these types will commonly, or even usually, have a bearing upon whether detention is justified.

16. Here, there appears to be firstly, a negligible risk of flight. The offender has answered his bail over 13 months to date, including during the one month since he was convicted. He is not of a background which would facilitate flight. He does not appear to be part of any criminal milieu which could support him fleeing from his present residence and concealing himself. The offender has strong connections to Sydney, in particular his two children for whom he has assumed a degree of financial responsibility and with respect to whom he has access rights (under bail conditions which minimise any risk of offending against them). His former wife supports his access to his own children and supports the continuance of his bail.

17. Secondly, under the existing bail conditions there appears a low probability of further offending in the period up to the sentence hearing. His ongoing psychological counselling is favourable to him not offending again. He has no criminal record for offences of this or any other type. There has not been tendered on the detention application any expert evidence to suggest that he satisfies diagnostic criteria of paedophilia. Nor has there been tendered any other expert evidence which would suggest a significant risk of recidivism. His psychologist’s report dated 14 December 2014 indicates this:

“He has made a positive start to treatment, and would appear to have a solid grasp on the range of behaviours that have contributed as background factors to the index offences. … A preliminary review of Mr Carlton’s risk profile suggests that his treatment needs are minimal (he is a low risk on standard assessment instruments) and he would not be found suitable to participate in Corrective Services NSW intensive residential program known as CUBIT (Custody-based Intensive Treatment)”.

18. Thirdly, having regard to the protective conditions of his continuing bail and his compliance to date, I do not see any material risk to the safety of the victim or of other individuals or the community should he remain on conditional liberty until 6 March 2016. This case differs from DPP v Tikomaimaleya in that there has never been any allegation of breach of bail conditions by this offender. Fourthly, because the trial has concluded, there is no question of the offender interfering with witnesses or with evidence. The Crown did not submit to the contrary of any of the conclusions stated in [16] – [18].

Considerations relevant particularly to “showing cause” after verdict

19. In the particular setting of a bail decision following a guilty verdict, one consideration relevant to whether detention is not justified may be that the offender might be better able to prepare for the sentence hearing if he is at liberty. This would be particularly so if, for example he wishes to undergo some form of counselling assessment and or treatment relevant to his offending and which it may be desirable for him to undertake in order to mitigate penalty, perhaps by demonstrating the ability and willingness to rehabilitate himself.

20. In the present case, this is not a strong consideration. Since the verdicts were returned the offender has submitted to a course of counselling by a psychologist retained by him at his own expense. This counselling is intended by him to be ongoing until the sentence hearing. His psychologist reports that he continues to deny the offence. In a report of 14 December 2015 the psychologist has said:

“He is engaged in a treatment program designed to address the factors associated with his sexual offence without requiring that he acknowledge his current charges”.

21. This sounds like an extremely difficult, questionable and artificial process. Further, the offender’s continued denial of the offence places him in a very poor position with respect to sentencing. It precludes any expression of remorse or contrition which the sentencing judge will no doubt regard as a matter of concern, especially given the importance of remorse and contrition to the prospects of rehabilitation.

22. It would probably not be practical for the offender to continue to receive the type of counselling and treatment that he is undergoing at present if he were remanded in custody. His psychologist has stated in his report of 14 December 2014 that he was asked about continuing to see the offender if bail should be revoked. He said:

“I have agreed in principle to this, but note that in my experience, the process of extending private treatment to inmates in custody is seldom achieved due to the following impediments: There is no guarantee that he will be placed in a Sydney metropolitan jail, professional visits are unreliable (subject to lock-ins and space limitations), and the environment is often not conducive to treatment (little privacy and in plain view of other inmates). In addition he will be unable to produce written work due to the security threat of having such material in the custodial environment (where other inmates can act violently towards men facing sexual charges against children).”

23. For practical purposes this is sufficient to show that the offender’s ongoing counselling would not likely be feasible if he were remanded in custody up to the sentence proceedings. The psychologist has stated that whilst he is on conditional liberty it is intended to complete with the offender a program of 10 to 14 sessions and that appointments for this purpose at the psychologist’s rooms have been scheduled. The limitation on the weight that can be attached to this consideration arises from the fact that, from the Court’s point of view, it has been established by the verdict that the offender committed the subject offence and it is difficult for great credence to be given to a program of counselling which is based upon the proposition that he did not.

24. Another consideration relevant to whether cause is shown that detention is not justified during remand for sentence in a case of this type is whether there would be a significant difference between the conditions of custody on remand as opposed to the conditions of custody following the pronouncing of sentence. I approach the resolution of the present application on the understanding that classification of prisoners and placement of them in suitable facilities is deferred by corrections officers until the sentence decision has been handed down – which brings certainty as to the term for which the prisoner is to be held. I understand that rehabilitation, education and work programs are not readily available until the length of the sentence is known so that classification and placement can take place.

25. If an offender is remanded in custody for any significant period after verdict and before sentence, the time served will of course count. But taking into account the abovementioned understanding of how prisoners on remand are dealt with, denial of bail after verdict and during a long adjournment of sentence proceedings may mean that a significant part of the offender’s sentence will be served under conditions significantly less favourable than would have been the case if he had been either remanded on bail until the passing of sentence or remanded in custody for a shorter period before sentence. I did not receive any evidence on this subject in the course of this application and base my understanding upon information which has been provided to the Courts and to the legal representatives of parties in many cases, in my experience, over many years.

26. A material consideration relevant to cause being shown in the present case (and one which did not arise in DPP v Tikomaimaleya) is that as the Crown acquiesced in both the long adjournment and the continuance of bail during it, there would be an element of unfairness if a detention order were now to be made on the Crown’s application. Had the continuance of bail been opposed by the Crown, a bail determination could have been made by the trial judge before the adjourned date for the sentence hearing was fixed. If the trial judge had refused to continue bail the offender might well have wished that his sentence proceeding be brought on for hearing sooner.

27. In the result, it is a combination of the absence of bail concerns, some measure of utility in the offender being on bail pending the sentence hearing (to continue earning to support his children more than to undergo the psychological counselling) and the consideration that the Crown’s change of position may have worked an unfairness on the offender that causes me to refuse the Crown’s application. I am satisfied that his detention is not justified during this interval, in the particular combination of circumstances of this case and that (having regard to the matters mentioned at [16] – [18]), there is no unacceptable risk if the offender should be at liberty on bail until the sentence hearing.

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Decision last updated: 29 January 2016