R v Hall

[2023] NSWDC 399

District Court

New South Wales

Medium Neutral Citation:

R v Hall [2023] NSWDC 399

Hearing dates:

8 September 2023; 15 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The application is refused.

Catchwords:

Detention application – consideration of section 22B Bail Act 2013 – realistically inevitable that offender will be sentenced to imprisonment – meaning of “special” or “exceptional” circumstances – onus on respondent to show “special” or “exceptional” circumstances – standard of proof – detention application refused

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Cases Cited:

Dawkins v R [2018] NSWCCA 278

DPP v Van Gestel [2022] NSWCCA 171

Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8

Hogan v R [2008] NSWCCA 150

R v Naizmand [2016] NSWSC 836

R v NK [2016] NSWSC 498

Wakeling v R [2016] NSWCCA 33

Category:

Principal judgment

Parties:

Applicant: Office of the Director of Public Prosecutions
Respondent: Mr Hall

Representation:

Counsel:
Ms Mendes (Respondent)

Solicitors:
Ms Coleman and Ms Dawson (ODPP)
Mr Harrison (Respondent)

File Number(s):

2022/00314997

Publication restriction:

Nil

JUDGMENT

INTRODUCTION

1. Bradley Hall, the respondent, was committed for sentence from the Local Court to the District Court on two charges, namely:

1. Sexual assault contrary to s 66C of the Crimes Act. The maximum penalty is 16 years' imprisonment. The standard non-parole period is 7 years’ imprisonment.

2. Sexual intercourse without consent contrary to s 61I of the Crimes Act. The maximum penalty is 14 years' imprisonment.

2. His sentence hearing is to take place on Thursday, 9 November 2023. On Friday, 8 September 2023 through his counsel Ms Mendes, Public Defender, he confirmed his pleas. The Director of Public Prosecutions made a detention application pursuant to s 22B(1)(b) of the Bail Act 2013. That application was adjourned to Friday, 15 September 2023. Section 22B(1)(b) provides:

"During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a Court –

(a) …

(b) on a detention application made in relation to the accused person - must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision."

3. Subsection (5) informs that a conviction, "also includes a plea of guilty." Section 50 of the Act empowers the prosecutor to bring an application for revocation of bail which is a "detention application". Ms Mendes relies upon the affidavit of Mr Rohan Harrison, her instructing solicitor, affirmed on 7 September 2023. It is the Crown's position that although sympathetic to the personal circumstances of the respondent, Corrections NSW would be able to undertake sufficient measures to ensure the respondent's safety within reason. The Crown submits that special or exceptional circumstances have not been shown and accordingly the application should be granted.

THE AFFIDAVIT

4. Mr Harrison first met Mr Hall in a professional capacity in June 2018. He has had carriage of these matters since October 2022. Following his arrest, Mr Hall was remanded in custody for approximately six weeks before a grant of bail. In summary, the affidavit informs me of the following:

1. Mr Harrison has had several AVLs with the respondent while in custody. It is his observation that the respondent has difficulties following and understanding what was said in conference.

2. The respondent was distressed and unable to follow basic instructions.

3. It was Mr Harrison's observations based upon his extensive criminal experience that the respondent had significant difficulties settling into custody.

4. Mr Harrison had issued various subpoenas. He reviewed the produced materials. The respondent was placed in a safe cell until 30 October 2022. Thereafter, he was released into protective custody but was assaulted and found unresponsive. After the assault the respondent engaged in self-harming behaviours.

5. Junee Correctional Centre does not have a special unit to accommodate inmates with intellectual disabilities. If the respondent was detained, he would be kept as a remand prisoner at Junee for a period.

6. Mr Harrison has had 14 conferences with the respondent since his release from custody. He presents as a highly vulnerable individual. Mr Harrison viewed reports from his childhood, showing that he has an intellectual disability.

7. Mr Harrison, drawing upon his many years of experience representing persons with disabilities and the materials he has been privy to, describes the respondent as "having very low level intellectual functioning, very poor coping skills, and struggles to regulate his emotions." It is his view he will deteriorate significantly when he goes into custody.

8. Mr Harrison has engaged the services of Dr Amanda White, a forensic neuropsychologist, to assess the respondent. An assessment took place on 4 September 2023. A report is not available at this time, however, Mr Harrison has conferred with Dr White and has been informed of the following:

1. The respondent suffers from a mild intellectual disability. It is a lifelong disability and will not improve.

2. There are only two correctional centres that have an additional support unit to cater for inmates with intellectual disabilities. Junee is not one of those units.

3. The respondent is likely to struggle in custody because he has neither the skills nor the intellectual capacity to cope in the harsh custodial environment.

4. The respondent is a high risk of self-harm. His feelings of desperation lead to him hurting himself as his only coping strategy.

5. When completed, a copy of the report should be given to Corrections NSW to assist in the placement and management of the respondent.

9. It is Mr Harrison's experience that when an inmate is held on remand, they do not have access to support and counselling services in the same way that sentenced inmates do. Mr Harrison contends that the respondent is a highly disadvantaged client due to his intellectual disability and associated poor level of general functioning. He contends that it is of utmost importance to Mr Hall's wellbeing that he is not entered into custody without a specialised report that sets out the nature of his disability and recommendations for his housing and management.

THE OFFENDING

5. The offender and the victim have known each other for over 18 years. Over those years the victim and the offender were involved in two separate sexual relationships. The first relationship commenced on or about 26 October 2004 and ended in October 2005. The second relationship commenced on 29 May 2010 and ended on 9 December 2016. They have three children together: SH aged 11, LH aged ten and RH aged six.

SEQUENCE 6 – SECTION 66C SEXUAL ASSAULT UNDER THE AGE OF 16

6. On 26 October 2004 when the victim was 12 and the offender was 17 she went to his home with others (GB and PC). She went into his bedroom. It would appear that GB and PC were having sex in one of the beds. The victim and the offender laid on the second bed in the room. The offender had taken most of his clothes off. The victim removed her pants and underwear. The offender attempted to put his penis in her vagina. Eventually he was able to put part of his penis into her vagina. The victim felt extreme pain. Thereafter, they had a relationship which included engaging in sexual intercourse. The relationship ended in October 2005.

7. On 29 May 2010 their relationship recommenced. Over time, they had three children. On 9 December 2006 the relationship ended. The victim and the offender co-parented their children. The offender regularly attended the victim's house to help with the children and carry out chores.

SEQUENCE 5 - SEXUAL INTERCOURSE WITHOUT CONSENT

8. On 16 October 2022 at approximately 7.30pm the offender gave the victim a lift to pick up a car. He had previously sent text messages asking for sex. The victim did not respond. They returned home at about 8.56pm and sat down on the couch to watch television. The victim fell asleep. At about midnight the victim woke up and noticed that her pants and underwear had been removed. She was naked from the waist down. The offender was on top of the victim. The victim could feel the offender's penis inside her vagina.

9. The victim tried to roll over in an attempt to get away from the offender. As the victim rolled over, the offender's penis came out of the victim's vagina. The victim said, "No." The offender replied, "Don't you want it? Can I finish?" The victim could tell the offender was not wearing a condom. The victim said, "No." The offender grunted and stood up and moved away from the couch. He walked up the hallway and went to the toilet.

10. The above facts I have found from the Crown Case Statement in relation to the matter, which, on this application, I am entitled to review so that the Court can be informed of the factual nature of the offending.

MS MENDES' SUBMISSIONS AND DETERMINATION

11. Ms Mendes submits that it does not follow that sequence 6 offence would result in an immediate term of imprisonment, nor the crossing of the s 5 threshold. She submits that the following factors are relevant in the sentencing exercise:

1. The offender was a child at the time of offending and the major sentencing consideration is rehabilitation.

2. The offender has an intellectual disability resulting in a reduction of his moral culpability.

3. The victim was a "willing participant" which is relevant in assessing the objective seriousness: Dawkins v R [2018] NSWCCA 278; Wakeling v R [2016] NSWCCA 33; Hogan v R [2008] NSWCCA 150 at [77], (2008) 186 ACrim 52.

4. Over 12% of offenders receive community correction orders post introduction of the standard non-parole period; before the introduction of the standard non-parole period over 18% of offenders received community correction orders.

12. Without hearing full argument, the submission has some force. The Court, as the bail authority, is to make an evaluative judgment as to the future matter, being the disposition of sentence, with respect to the convicted person. That involves the Court making a forward-looking assessment on the limited materials placed before the Court on the detention application.

13. The requirement of the condition in s 22B(1) that the Court be satisfied that the convicted person "will" be sentenced to full-time imprisonment involves a state of satisfaction as opposed to the fact. As this is an evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not the relevant standard.

14. Section 22B sets a high bar for the degree of satisfaction to be reached by the Court to engage the power to make a bail decision under s 22B. The use of the word "will" in the condition indicating future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen. That does not mean that "will" involves a state of absolute certainty.

15. I am not satisfied that on sequence 6 that it is realistically inevitable that the offender will be sentenced to imprisonment. I do so for the following reasons:

1. His age at the time of offending (he was a child).

2. The objective seriousness of the offending (the victim was a "willing participant").

3. The reduction of the offender's moral culpability due to his mild intellectual disability and current sentencing practices.

16. I now turn to sequence 5, sexual intercourse without consent. The future likelihood suggests that it is realistically inevitable that the offender will be sentenced to imprisonment to be served by way of full-time detention. Ms Mendes submits that special or exceptional circumstances exist to refuse the detention application. The word "or" is used disjunctively. If the Court is satisfied that special circumstances exist, it should refuse the application. If the Court is satisfied that exceptional circumstances exist, it should refuse the application.

17. The words "special" or "exceptional" are not defined in the Act. "Special" means better, greater or otherwise different from what is usual. "Exceptional" means unusual, not typical. Harrison J discussed the meaning of "exceptional circumstances" in connection with s 15AA in R v Naizmand [2016] NSWSC 836 at [8]-[13]. See also R v NK [2016] NSWSC 498 at [26]-[28]. In the context of s 22B, special or exceptional circumstances should be given the same meaning as in s 22(1) (concerning bail where an appeal is pending in the Court of Criminal Appeal) unless there is a reason not to do so and to be determined on a case by case basis: DPP v Van Gestel [2022] NSWCCA 171 at [50] and [52].

18. It is a question of fact to be determined on the balance of probabilities with the onus falling upon the respondent Mr Hall. The concept of exceptional circumstances is necessarily a flexible one but it is clear it may be constituted by a combination of matters which, taken together, render the case exceptional: Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8 Osborn J at [5]. What must be shown is that there is some situation out of the ordinary in some respect that the respondent can point to as justifying the adjective “exceptional."

19. Exceptional circumstances may include personal or subjective circumstances of the respondent. Ms Mendes relies upon the affidavit of Mr Harrison and submits that as a matter of common humanity the respondent should remain on bail until the sentence hearing to be conducted on Thursday, 9 November 2022.

20. I am satisfied on the balance of probabilities that the matters set out in in Mr Harrison's affidavit in combination demonstrate special and/or exceptional circumstances to justify the refusal of the detention application. The application is refused.

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Decision last updated: 09 October 2023