R v GAWEL

[2021] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v GAWEL

[2021] SASC 67

Reasons for Decision of the Honourable Justice Parker  (ex tempore)

1 June 2021

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

This is an application for a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA).

The applicant is charged with a number of offences including aggravated assault against own spouse (no weapon) and choke, suffocate or strangle a person in a domestic setting. The alleged offending occurred on 19 September and 21 September 2020.

The applicant is a prescribed applicant within the meaning of s 10A of the Bail Act 1985 (SA). Accordingly, the applicant must establish the existence of “special circumstances” justifying his release on bail.

Held, per Parker J, allowing the application:

1.      Special circumstances exist for the following reasons:

a.       The applicant will not likely receive a trial for these matters until August or September 2022. The time spent remanded in custody awaiting trial may well exceed the sentence imposed on the applicant if convicted of the alleged offences.

b.       The applicant is no longer in a relationship with the complainant and the proposed home detention bail address is some 13 km away from the home of the complainant.

2.      Bail is granted on strict home detention conditions, supported by a guarantee.

Bail Act 1985 (SA) s 10A, s 14(2)(a); Criminal Procedure Act 1921 (SA), referred to.

Homsi v The Queen [2020] SASC 242, applied.

R v Pepper [2018] SASC 184; R v Lombardi [2013] SASC 61; R v Buhlmann [2010] SASC 123, discussed.

R v GAWEL
[2021] SASC 67

Criminal:         Application

PARKER J (ex tempore):

Introduction

1. This is an application for a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) dated 26 May 2021. The application is brought in respect of a Magistrate’s decision to refuse bail on 26 May 2021 on the basis that there were no “special circumstances” established by the applicant within the meaning of s 10A(1) of the Bail Act.

   Background

2. The applicant is charged with 2 counts of aggravated assault against own spouse (no weapon) and one count of choke, suffocate or strangle a person in a domestic setting.  The offences of assault were aggravated because the parties were in a domestic relationship.  This is not a case where the alleged domestic violence was said to breach an intervention order. 

3. These offences allegedly occurred on 19 September and 21 September 2020.  The applicant had been released on home detention bail the day before the first alleged offence occurred.

4. On 12 February 2021, the applicant was sentenced to imprisonment for a term of one year, four months and 17 days with a non-parole period of eight months in relation to offences of serious criminal trespass that had occurred earlier in 2020.  That sentence was backdated to 22 September 2020.  He was granted parole by the Parole Board on 21 May 2021.

5. However, on 26 May 2021, the Magistrate refused bail.  The applicant has applied to this Court for review of that decision.  The DPP opposes that application and the grant of any form of bail.

6. A satisfactory home detention report has been supplied by the Department of Correctional Services.  It is proposed that the applicant live at Fairview Park with a friend, who is also prepared to provide a guarantee.

   Grounds

7. Because the applicant has been charged with a strangling offence he is a “prescribed applicant” for the purposes of s 10A of the Bail Act.  Thus, he cannot be granted bail unless he demonstrates that there are special circumstances.

   Delay

8. The primary ground advanced on behalf of the applicant by counsel in support of the special circumstances contention is the excessive delay that will be experienced before this matter comes to trial.

9. In relation to the delay point, counsel has traced the history of the matter before the Magistrates Court.  That history is as follows:

   1.22 September 2020 – applicant first appeared in the Magistrates Court and prosecution sought an adjournment of four months, which was granted.

   2.27 January 2021 – prosecution had not made a charge determination and sought a further adjournment of four weeks, which was granted.

   3.25 February 2021 – a charge determination was made.

   4.20 April 2021 – the matter was listed for the applicant to answer the charge. The DPP sought and was struck granted a further adjournment of four weeks because the complainant had not attended an arranged proofing session.

   5.19 May 2021 – the matter was listed for the applicant to answer the charge.

   6.20 August 2021 – the applicant’s Arraignment was listed.

10. Counsel for the applicant has deposed that based on the most recent District Court listings she does not expect a trial listing until August or September 2022.  By that time the applicant will have been in custody for two years awaiting trial although he was actually serving a sentence of imprisonment for offences of dishonesty from 22 September 2020 until 21 May 2021.

11. Counsel drew support from the decision of Livesey J in Homsi v The Queen.[1]  In that case the applicant was a prescribed applicant who had been charged with number of offences including aggravated assault, unlawful imprisonment and unlawful choking which had allegedly occurred over an extended period.  The offences were significantly more serious than those alleged in the present case, although Livesey J noted that there were some “issues” about the credibility of the complainant.  The applicant also had a history of non-compliance with bail agreements.  He had been in custody since April 2020 and the trial was unlikely to be held until the first half of 2022 at the earliest. 

    [1] [2020] SASC 242.

12. Livesey J held that it was appropriate to grant home detention bail.

13. It is clear that that the primary ground for his Honour’s decision was the long delay before the matter went to trial.

14. Counsel also relies upon the fact that the Parole Board has determined that the applicant is a suitable person to be granted parole subject to compliance with 29 conditions. 

15. In her submission, the effect of the parole conditions is that the applicant will be so strictly monitored that any concerns that the Court may have about his release will be alleviated.  I stress that the submission advanced by counsel is not that the grant of parole amounts to special circumstances, but rather that when considered in conjunction with other matters the totality of the applicant’s situation is such that they amount to special circumstances.

16. The Director contends that the delay does not constitute a special circumstance that takes this case out of the generality of cases and in that respect relied upon the decision of Stanley J in R v Pepper.[2]

    [2] [2018] SASC 184.

17. In the Director’s submission, the time taken to complete the committal proceedings to some extent merely amounted to the Magistrates Court exercising its discretion to grant an adjournment upon being satisfied that there were proper grounds to do so.  Furthermore, to a large extent the timetable during the committal process is dictated by the Criminal Procedure Act 1921 (SA).

18. The Director also points to the fact that the period from September 2020 until very recently is not relevant to the question of delay as during that period the applicant was serving a sentence for a different matter.

19. The Director also observes that the applicant has previous convictions for failing to comply with bail conditions in 2013 and on two occasions in 2019.

20. At the time of the current alleged offences he was on home detention bail, although he has not been charged with a breach of that bail.

    Consideration

21. As the Chief Justice observed in R v Lombardi,[3] the primary consideration in a case such as this is to determine whether the circumstances of the applicant are such as to place him outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicant. His Honour also accepted that in considering whether special circumstances exist it is appropriate to take account of the applicant’s personal circumstances, including their history of criminal offending, and where relevant, their health and family circumstances. His Honour further noted that the possibility of granting home detention bail does not go very far in establishing special circumstances, as that possibility must have been in the contemplation of the Parliament when it enacted s 10A.

    [3] [2013] SASC 61.

22. In R v Buhlmann,[4] Sulan J observed that the words “special circumstances” are wide and confer a flexible approach.  In that case Sulan J determined that there were special circumstances after having regard to the low-level nature of the offence charged, the lack of any risk to the victim, the domestic circumstances of the applicant, his prior history, and the fact that even if he were to be convicted, a sentence of imprisonment would not result.

    [4] [2010] SASC 123.

23. As I have previously noted, Livesey J held in Homsi that the delay of about two years until the matter was likely to come to trial when combined with the fact that the complainant was no longer in a relationship with the applicant and that her whereabouts were not known to him was sufficient to amount to special circumstances.  His Honour did note that there were some unexplained “issues” about the credibility of the complainant.

24. However, by way of comparison to the present matter, I also note that the applicant in Homsi was charged with nine counts, of which four involved the use of various weapons and another count involved choking.  He was also charged with unlawful imprisonment of the complainant and attempting to dissuade her from giving evidence.  When taken at their highest, the allegations in Homsi clearly amounted to a very serious case of domestic violence, albeit that the complainant does not appear to have suffered any significant physical injury.

25. While I wish in no way to minimise the seriousness of the offences with which the applicant has been charged, I accept that his alleged conduct is less serious than that alleged in Homsi.

26. I adopt essentially the same reasoning as that of Livesey J in Homsi and determine that bail should be granted subject to home detention conditions and the provision of a guarantee. 

27. My concern is that if bail is refused the applicant will have spent a period from the recent expiry of his sentence until August or September next year, being some 15 months, remanded in custody which may well exceed the sentence imposed if he is convicted of these offences.  In that context I note that the applicant does not have any prior convictions for offences of violence and the injury to the victim does not appear to have been significant.

28. At least in part, that delay must be attributed to the COVID-19 problems experienced in 2020. Delay of that extent could not have been anticipated by the Parliament when it made offences of this type subject to the special circumstances requirement under s 10A.

29. In making this decision I note that the Court has been informed that the applicant is no longer in a relationship with the complainant.  It is proposed that he will live at the home of a friend which is located some 13 kilometres away from the home of the complainant.  The same friend is also prepared to provide a guarantee.  The applicant does not have any prior convictions for offences of violence.   

30. The imposition of home detention bail with an electronic monitoring condition should serve to provide an appropriate level of protection to the complainant, who is also protected by an intervention order, particularly bearing in mind that for the first eight months of his release, the applicant will also be subject to quite strict parole conditions.