R v Day
[2022] ACTSC 60
•29 March 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Day |
Citation: | [2022] ACTSC 60 |
Hearing Date: | 29 March 2022 |
DecisionDate: | 29 March 2022 |
Reasons Date: | 1 April 2022 |
Before: | Kennett J |
Decision: | The application for bail is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – where no presumption of bail – where applicant’s criminal history includes past breach of bail – where applicant has previously contravened a family violence order |
Legislation Cited: | Bail Act 1992 (ACT) ss 9B, 20B, 22 |
Parties: | The Queen ( Crown/Respondent) Benjamin Paul Day ( Accused/Applicant) |
Representation: | Counsel L Etheredge ( Crown/Respondent) C Natoli ( Accused/Applicant) |
| Solicitors ACT Director of Public Prosecutions ( Crown/Respondent) David Healey Solicitors ( Accused/Applicant) | |
File Numbers: | SCC 1, 2 of 2022 |
KENNETT J:
Introduction
The applicant applied for bail on 23 March 2022. His application was supported by an affidavit of his solicitor, Ms Natoli, of the same date.
I heard the application on 29 March 2022 and received some further documentary evidence from the applicant and the Crown. At the close of the hearing I refused the application for bail. These are my reasons for doing so.
The allegations against the applicant
In an indictment filed in this Court on 23 February 2022, it is alleged that the applicant committed several serious offences on or about 2 September 2021 (the indictment refers at several points to 2 September 2020, which appears to be a typographical error, noting that other documents locate the events in 2021). There are two counts alleging that he intentionally and unlawfully choked, suffocated or strangled the complainant, and three counts alleging threats to kill the complainant. In addition, it is alleged that he contravened a family violence order that had been obtained by the complainant against him.
The case statement accompanying the indictment also notes two transfer charges, namely damaging property and common assault.
According to the Crown case, the applicant was at the time of the alleged offences the on-again off-again partner of the complainant. It is said that she had been seeking to leave the relationship, but he had coerced her into continuing to see him with threats of suicide. It is also said that, at the time of the incident, she was pregnant with his child.
It is alleged that, for approximately two weeks before the incident, the complainant had been obtaining heroin for the applicant and assisting him to administer it to himself. She attended his residence in Ainslie on the evening of 1 September 2021, with the intention for them to have “a quiet night in”.
It is then alleged that, at approximately 11:30pm, the two of them were lying in bed together when the applicant began accusing her of destroying his life and made the first threat to kill her. He pushed her out of the bed, punched her on the right side of her head and choked her. He then allowed her to get dressed and directed her to lay under the doona.
Next it is alleged that, approximately 30 minutes later, the applicant pushed the complainant off the bed again. He then hit her several times on her right side, her thigh and upper arm. He told her that he hated her and that if she made any sound he was going to kill her. The complainant then left the bedroom and went to another bedroom.
It is alleged that, while she lay crying on the floor of the other bedroom, the applicant yelled at her that if she didn’t “shut up” he was going to “punch [her] face in”. He then entered the room, punched her in the head, and said words to the effect that, if she did not keep her voice down, he was going to kill her.
It is further alleged that, later in the night, the complainant moved to a position behind the couch in the lounge room. The applicant came over to her and made verbal threats to “bash her” and disfigure her face. This is said to have concluded with the words, “if you get up you’re dead”. At around this time, the applicant also punched the complainant several times.
Shortly before 4am, the complainant attempted to leave the house (which required her to grab the house keys and rush to the front door). There was a struggle at the front door, during which the applicant grabbed the complainant by the throat. They then tumbled out of the front door together. The struggle continued with the complainant grabbing a veranda pole while the applicant grabbed one of her legs and tried to drag her back inside. While the complainant was still holding onto the pole, the applicant jumped onto her and grabbed her throat with both hands, telling her to “shut up”. It is alleged that, on this occasion, he applied such force that the complainant was unable to make a sound. He told her that, if she made a noise or drew the attention of the police, she was “fucking dead”.
At that point the applicant moved his hands and the complainant screamed. This attracted the attention of a neighbour, who telephoned the police. When this occurred, the applicant said to her, “I am dragging you back inside right now and you are dead. The police are coming. We’re both gonna die tonight.” The complainant continued screaming and holding onto the veranda pole. The applicant continued to hit her and try to drag her back into the house. He then suddenly let go of her and she ran across the road to a neighbour’s house.
At the time of these events, a family violence order (which had been made by a magistrate on 27 November 2020) was in force. It prohibited the applicant from being within 100m of the complainant except in very specific circumstances, and from engaging in behaviour that constituted family violence towards her. The Crown case is that this order had been served on the applicant at the City Police Station on 25 January 2021.
Legislative framework
Because the applicant is facing trial in this Court, the Court has power to grant bail under s 20B of the Bail Act 1992 (ACT) (Bail Act). The Bail Act makes a tripartite division between offences as to which there is a presumption in favour of bail, offences as to which there is a presumption against bail, and an intermediate category in which there is no presumption either way. This case is within the intermediate category, which is created by s 9B. It comes into that category on the basis that the applicant has been found guilty of offences involving violence within the previous 10 years, and the offences of which he is now accused include threats to kill (cf s 9B(b)(i)) and a contravention of a family violence order (cf s 9B (b)(v)). I therefore approach the matter on the basis that neither the applicant nor the Crown has an onus to persuade me that any particular test has been met. I must consider whether, in the circumstances of the case, a grant or a refusal of bail is the preferable decision.
Section 22 of the Bail Act sets out the criteria which the court must apply. Subsection (1) lists three mandatory considerations, as follows:
22Criteria for granting bail to adults
(1)In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a)the likelihood of the person appearing in court in relation to the offence; and
(b)the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c)the interests of the person.
Subsection (3) of s 22 provides that the court may also have regard to “any relevant matter”, including:
(3)In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including—
(a)the nature and seriousness of the offence; or
(b)the person’s character, background and community ties; or
(c)the likely effect of a refusal of bail on the person’s family or dependants; or
(d)any previous grants of bail to the person; or
(e)the strength of the evidence against the person.
Mandatory considerations
The Crown opposed bail, and drew particular attention to matters relevant to s 22(1)(b). There is, in my view, a significant likelihood that, if granted bail, the applicant would harass or intimidate the complainant or commit other offences (I note that contacting or approaching the complainant would itself be likely to constitute an offence, as it would amount to a breach of a further family violence order made on 10 February 2022). I do not think that this risk can be sufficiently ameliorated by the imposition of conditions on a grant of bail.
The applicant, who is now 45 years old, has a long criminal history in the ACT and New South Wales dating back to his late teens. It includes drug-related offences, driving offences, several convictions for assault, and contraventions of both community service orders and apprehended violence orders. Since 2014, he has been convicted of common assault on three occasions, assault occasioning actual bodily harm, damaging property, assault with intent to commit a particular offence, and contravening family violence orders on two occasions.
He last contravened a family violence order (an order that had been obtained by his former partner) on 12 September 2021, only 10 days after the events in relation to which he is now charged and while he was on bail for those charges (bail had been granted by a magistrate on 2 September 2021, but it was revoked when the applicant was arrested for this further offence). The applicant pleaded guilty to this contravention, and was sentenced to a term of imprisonment which expired on 14 March 2022. If ever he had an incentive to comply with a family violence order, it was while he was on bail having been charged with contravening an order of exactly that character. The approach made to his former partner involved only contact by telephone rather than any physical approach. However, according to the police statement of facts (which the applicant did not dispute), that involved some 49 voicemails in the course of a day including a threat to kill the alleged boyfriend of his former partner.
At a general level, the applicant’s history makes it impossible to have any confidence that he would refrain from committing offences if granted bail. His solicitor emphasised that some of his recent offending has been related to significant stress and grief arising from the difficulty he has had in seeing his daughter. Around the time of the events leading to the present charges, he was at a very low point, and it is suggested that he had attempted suicide a number of times. Since that time, he has begun to address these issues through undertaking various courses while in custody, and by seeking professional assistance. However, this does not allay the concern that naturally arises from his long history of contravening the law (including in violent ways) and his difficulty complying with orders specifically binding on him. While the evidence includes a psychological report prepared in January 2022 suggesting that he is in remission from a former drug addiction, and there is no suggestion of his having used illegal drugs since the events leading to these charges, it is far from clear that his earlier offending is wholly or even largely explained by the influence of drugs. A pre-sentence report, also prepared in January 2022, recorded the applicant’s acceptance that alcohol had been a contributing factor in his most recent offence, and that “it only takes a couple of alcoholic beverages to affect his decision-making abilities”. It is very doubtful (taking into account the applicant’s poor record of compliance with orders generally) that the imposition of conditions on a grant of bail would significantly reduce the risk of him lapsing into further offending.
At a more specific level, it is of great concern that the applicant has been convicted more than once of failing to comply with orders specifically requiring him not to contact particular persons. He was the subject of an order of the same nature made for the protection of the complainant, and (at least so it is alleged) nevertheless spent an evening with her at the time of the alleged offences. It was said from the bar table that the applicant has had no contact with the complainant since that time, that he has no wish to have any such contact, and that he proposes to seek a family violence order against her in the event that he is granted bail. These were presumably his instructions to his solicitor. However, there is no evidence before me going to the strength of that resolution.
I take into account, also, that the applicant’s and the complainant’s residences are on the same street and about 650m apart. It has been put, and I accept, that there is no need for them to pass each other’s residences in going about their daily lives. Nevertheless, that physical proximity increases the risk that the applicant might succumb to the temptation to approach her. She will be an important witness at the trial of these proceedings.
The Crown also placed some reliance on s 22(1)(a). It was pointed out that the applicant’s criminal history included two first instance warrants, the most recent of which was issued in September 2016. These are some indication that he does not always attend court when required. However, against this, the applicant has significant incentives to remain in the Territory. He has accommodation in the Territory, provided by ACT Housing. He has employment with two businesses, one in Queanbeyan and one in Fyshwick. His young daughter, with whom he is very keen to have a relationship, also resides in the Territory. While there is some possibility that he might not attend court, I regarded it as small. It does not add significant weight to the argument against a grant of bail.
Other factors
The nature and seriousness of the offences with which the applicant is charged (s 22(3)(a)) also tend against a grant of bail. While it is important to keep steadily in mind that the offences have not been proved, the case which is to be put against the applicant involves a significant degree of violence and threats against the life of the complainant which would have been extremely frightening for her.
The applicant’s solicitor also made some submissions which are relevant to the topic of the likely effect of a refusal of bail on the person’s family or dependants (s 22(3)(c)). It can be accepted that refusal of bail denies the applicant the ability he would otherwise have to earn an income and thus to contribute to the financial support of his daughter. His ability to play a positive role in her life as a parent is also, obviously, diminished while he remains in custody. These points support a grant of bail. However, they do so only to a limited extent (at least in the short term), because the applicant has significant issues to resolve with his former partner before he will be able to have regular contact with his daughter.
Previous grants of bail to the applicant (s 22(3)(d)) are relevant, in that his behaviour while on bail may give some indication of the risk involved in a further grant. The only previous grant of bail as to which there is any specific evidence is the initial grant of bail by the Magistrates Court in the present case. As noted earlier, the fact that the applicant was on bail (for offences including contravention of a family violence order), and thus at risk of losing his liberty if he offended in any way, was not sufficient to prevent him contacting his former partner in breach of a family violence order.
The final matter referred to in s 22(3) is the strength of the evidence against the person (para (e)). The applicant denies the charges against him and proposes to mount a defence. However, it was not submitted that weakness in the Crown case was a matter to which I should have regard. On the material before me it is not possible to say that the case is particularly strong or particularly weak.
Conclusion
The applicant’s history shows that he is not averse to breaching supervisory orders. Bail conditions are a form of supervisory order. His history (especially his recent history) also shows that when under stress he finds it difficult to refrain from overbearing, threatening and potentially violent behaviour towards women who have been significant in his life. Formal orders prohibiting such approaches have not always prevented him from attempting them. There is thus a significant level of risk that, if granted bail, the applicant would harass or intimidate the complainant (who is an important witness in the case against him) or otherwise commit an offence.
For these reasons, bail was refused.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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