R v K - [2017] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v K
[2017] SASC 6
Judgment of The Honourable Justice Hinton
3 February 2017
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of an order refusing bail made in the Magistrates Court.
The applicant was charged on Information with aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and unlawful sexual intercourse, contrary to s 49(1) of the CLCA. Bail was applied for and refused in the Magistrates Court in May 2016. The applicant sought a review of that refusal.
Application for review brought on the basis that bail on home detention conditions is warranted.
Held, dismissing the application:
1. Bail is refused.
Bail Act 1985 (SA) s 10, s 14; Child Sex Offenders Registration Act 2006 (SA) s 6; Criminal Law Consolidation Act 1935 (SA) s 49, s 56; District Court Act 1991 (SA) s 50B; R v Mehr [2016] SASC 174, referred to.

R v K
[2017] SASC 6
Criminal
HINTON J.
Introduction

This is an application pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) for the review of an order made in the Magistrates Court on 18 May 2016 refusing the applicant, K, bail. That order was made on an Information charging K with aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and unlawful sexual intercourse, contrary to s 49(1) of the CLCA.
On the hearing of this application I have had regard to affidavits sworn by the following people on the dates identified and to the exhibits referred to therein:
·Adam Gaite, 29 November 2016.
·Georgia Malandris, 1 December 2016.
·Eleni Chrisakis, 15 December 2016.
·Adam Gaite, 20 January 2017.
In addition I have had the benefit of a Home Detention Enquiry Report, dated 8 December 2016, and an Evidentiary Certificate from the Registrar of the Australian National Child Offender Register (ANCOR), dated 15 December 2016.
I remind myself that this Court, as the reviewing authority, is obliged by s 14(3) of the Act to reconsider the application for release on bail made by K and is invested with power to make any decision on the application that should, in the opinion of the Court, have been made in the first instance. Consequently, it is not for K to establish error on the part of the Magistrate.
I would refuse bail. My reasons follow.
The offence to which the application relates and the circumstances of its commission
What follows is taken from the affidavit and other material referred to above.
As mentioned K has been charged with aggravated indecent assault and unlawful sexual intercourse. It is alleged that on 15 May 2016 he rubbed the vagina of his 11 year old daughter and then, a short time later, under the pretext of checking her genitalia for thrush, inserted his finger into her vagina.
On 17 May 2016 the police arrested K. He was refused police bail and was subsequently unsuccessful in applying to a Magistrate for bail. The Certificate of Record records the reasons for the refusal of bail as follows:
Seriousness of the offending and the concerns the prosecution has regarding enquiries that the police are still conducting in relation to the matter, and the concern that the court has that the defendant may interfere with that process, the court also notes the defendant’s history in relation to periods of supervision on bond breaches.
On 4 November 2016 K pleaded not guilty to the charges and was committed for trial. His trial has since been listed to commence on 3 October 2017. By that time, if he is not granted bail in the interim, he will have been on remand in custody for near on 17 months. I assume the Director’s Information complies with rule 23 of the District Court Criminal Rules 2014 and that K’s trial has been given priority over any less urgent criminal trial as required by s 50B of the District Court Act 1991 (SA). The delay is lamentable, particularly with a child victim of a sexual offence who also happens to be a child of the accused.
This is not the place to explore the reasons for the delay. However, it is to be remembered that delay is a factor to be considered in determining whether to grant bail. In this regard I bear in mind that the presumption of bail reflects the presumption of innocence and the premium the community places upon liberty. If then a person is refused bail, it behoves all concerned to act expeditiously to bring the matter to a speedy resolution. That way liberty is interfered with for only so long as is necessary.
K’s antecedents
K has an extensive criminal history. He has appeared in this State’s criminal courts in every year since 2001, and most often more than once in any given year. He has numerous convictions for dishonesty offences. Convictions for motor vehicle related offences are plentiful as are convictions for regulatory offences. Property offences also featured frequently up until 2006. Dotted throughout his criminal history are offences of violence – he has a number of convictions for common assault, and has been convicted of threatening to cause harm, hindering police, possessing a firearm, and carrying an offensive weapon. His antecedents reflect an anti-authoritarian attitude and a lack of respect for the law and for the community generally.
K was first imprisoned in 2008. He has on no less than six occasions entered into bonds to be of good behaviour. Twice he has been brought before the courts for breaching those bonds. He has five convictions for breaching the terms of bail agreements and three for failing to comply with reporting requirements. He has convictions for driving whilst disqualified and providing false reports and false details. In the wake of these convictions his word given as part of his entering into a bail agreement is worth little.
Of great concern is his history of sexual offending.
In 2008 when he was aged 25, K pleaded guilty to 3 counts of unlawful sexual intercourse with a person under the age of 14. This offending breached a good behaviour bond which had been imposed for 8 counts of dishonesty. On 31 October 2008 K was sentenced to 20 months imprisonment and a non-parole period of 11 months was fixed. The sentence was not suspended.
In sentencing his Honour Judge Herriman said:
You first met the victim, who was then 13, through friends and your first offending occurred within two days. You then carried on a sexual relationship with her between January and September 2007. The counts to which you have pleaded are representative of numerous other occasions over that time when similar conduct occurred.
Whilst it is not argued that the victim was an unwilling participant in the sexual activity, it is evident from her statement to the police that she was at first hesitant about it and that you took advantage of her young age and immaturity.
You were told at the outset that she was only 13 years old and in fact the female adult with whom she was staying at that time warned you to stay away from her because of her young age. You expressed a complete lack of concern about that.
Your offending had very important repercussions for her life. She fell pregnant and, at 14 years of age, now had the care of a baby, born in May of this year. I note that from her victim impact statement that having the child at such a young age has caused her much embarrassment and prolonged her return to school. It is also a considerable financial and emotional responsibility for her.
Your antecedents reveal no prior sexual offences but since 2001 you have been convicted numerous times in the Magistrates Court for a variety of offences involving dishonesty, violence and motor vehicles. Additionally, I note that you have previously had the benefit of a suspended sentence and that this offending breached the bond to which that sentence relates.
Later that same year, 2008, K was convicted of two counts of aggravated indecent assault. He was sentenced in the Adelaide Magistrates Court on 5 November 2008 to an additional 4 months imprisonment. In a Parole Board report, the author describes the two counts of indecent assault as being indecent assaults against his domestic partner on 2 July 2007 and described the offences as disrespectful and demeaning.
In 2010 K pleaded guilty to aggravated possessing child pornography and aggravated producing child pornography. The charges arose out of the 2008 offending and the relationship that was subject of the unlawful sexual intercourse charges. In February 2008, K admitted to police that he had video recordings on his computer of himself and the victim involved in sexual activities. Videos fitting that description were indeed located on his computer as was other pornographic material depicting predominately female children. The ages of the victims in the photographs ranged from approximately seven to 11 years of age.
K was sentenced on 18 May 2010 to imprisonment for two years and a non-parole period of one year and six months was fixed. The sentence was suspended upon K entering into a bond to be of good behaviour for three years with conditions and supervision. In sentencing, his Honour Judge Soulio said:
You are now 27 years of age. You have a disturbing history of offending. In addition to the convictions for the offences to which I have already referred, you have been dealt with in relation to charges of larceny, making a false report to police, stating false personal details, false pretences, making a false statement, common assault, dishonestly taking property, damaging property, making offer about payment, using a motor vehicle without consent and, as I have said, possessing a firearm without a licence and hindering police.
…
You were eligible for release on parole on 30 September 2009 but were required to remain in custody until at least 9 December 2009 because of the Commonwealth sentence relating to the bomb hoax.
The Parole Board deferred consideration of your application for release pending psychological assessment, Sexual Behaviour Clinic inquiries and counselling by the prison social worker. The Parole Board report noted that you did not apparently meet the relevant criteria for the department psychological assessment and could not be assessed for the Owenia House sexual offending program because of your placement at Yatala. You did, however, have three sessions with the prison social worker. You were ultimately released from prison on 31 December 2009 and have been on parole since that time.
During the course of your most recent imprisonment, you were assessed for participation in the Sexual Behaviour Clinic program. That is a moderate intensity program. The formal assessment of your risk was of a moderate to low risk of sexual offending if untreated. However, that assessment was made without taking into account the indecent assault offences. The assessment, it was conceded, may therefore under represent your level of risk.
Following your release from prison in February 2010, you commenced the Owenia House program for sexual offenders. You admitted your sexual offending, although continued to minimise the offending. You have however apparently progressed well with the author of the report from Owenia House expressing some optimism as to your suitability for continued treatment.
You have told the community corrections officer, who prepared a pre-sentence report, that your father sexually abused you when you were a child. The author of that report obtained further information from Owenia House confirming that you had progressed well in the Sexual Offenders Treatment and Assessment Programme and had demonstrated insight into your offending and a commitment to undergoing therapy. However, against the background expressed by the author of the Parole Board report, to which I will return, your progress is to be treated with some caution.
K is a Registered Offender pursuant to s 6 of the Child Sex Offenders Registration Act 2006 (SA). He has obligations to report to ANCOR. On 28 April 2008 K took part in an initial report pursuant to s 11 of the Child Sex Offenders Registration Act 2006 (SA). He is identified as a serious registrable offender given he meets the definition criteria of registrable repeat offender pursuant to that Act.
In 2015 K was convicted of failing to comply with his reporting obligations with ANCOR. He was sentenced to a 12 month good behaviour bond. The offending subject of this review breaches that bond.
The Evidentiary Certificate from ANCOR notes that as K is in custody his reporting obligations are suspended until his release. Upon being released from custody, including if he were to be placed on home detention, K would be subject to the following obligation under to s 20A of the Child Sex Offenders Registration Act 2006 (SA):
Despite any other provisions of this Act, if a registrable offender has reportable contact with a child, he or she must report the details of that contact to the Commissioner within 2 days of such contact occurring.
K’s reporting obligations under the Child Sex Offenders Registration Act 2006 (SA) were to be reviewed on 31 January 2017.
Counsel for K took instructions on many of the breach bail offences of which he has been convicted. I was advised that:
·a breach of bail on 12 July 2004 related to a failure to reside at a specified address contrary to the then bail agreement. On 15 December 2005 upon his plea of guilty he was convicted without penalty.
·a breach of bail on 25 September 2011 related to the breach of a curfew that had been imposed. On 4 October 2011 upon his plea of guilty he was convicted without penalty.
·a breach of bail on 2 July 2011 was also constituted of a breach of curfew. On 15 May 2012 upon his plea of guilty he was convicted without penalty.
·on 15 May 2012 K was convicted without penalty for breach of bail of 5 August 2011. Counsel was not able to discover the circumstances of that offence.
·a breach of bail on 15 February 2011 was constituted by K’s presence in the driver’s seat of a car, contrary to the terms of his bail agreement.
I also note that K has been subject of six first instance warrants between 2001 and 2015. Counsel for K was instructed that two of those warrants, issued 8 November 2001 and 3 May 2007, arose from his failure to respond to summonses. Further, a warrant issued on 25 January 2008 arose from a misunderstanding of a court date. The record shows a warrant allegedly issued on 24 January 2013 which holds the status of “CANC”. Counsel was unable to cast any light on the meaning of that anagram. The record shows warrants issued by the Parole Board on 23 December 2014 and 27 May 2015. Counsel for K noted that these do not relate to any court process. I do not have the benefit of any information as to why these warrants were issued.
The applicant’s personal circumstances and submissions
K is 33 years of age. He is an only child. He was diagnosed as suffering from attention deficit disorder at the age of 10 and prescribed medication. He has also been diagnosed with an obsessive compulsive disorder. I have no information as to how this impacts upon him.
K has worked in the retail industry, including working for a car audio retailer and for Cash Converters, although these positions were short-term. More recently he has received Newstart benefits as a consequence of experiencing difficulty in finding work upon release from custody.
As indicated K is a father. He is currently in a relatively new relationship. His current partner has a young son.
K’s parents live in Victoria. His mother is aged 53 and of ill health. She requires support and assistance. His father is aged 71 and because of his age he also requires support and assistance. K floated the possibility of his being released on bail to live with his parents so that he could provide assistance to them.
K is currently in a relationship with a woman who resides at Mt Gambier. K’s counsel submitted that if the Court requires that K be subject to the supervision of the Department for Correctional Services that he could reside with his partner at her home in Mount Gambier. To his knowledge, the alleged victim of the offences with which K is currently charged lives in metropolitan Adelaide.
K has had a history of mental health problems, including depression, anxiety and, as mentioned, an obsessive compulsive disorder. For him the prison environment is stressful. That stress is exacerbated by the nature of his alleged offending. K told the Home Detention Enquiry Report writer that he has also previously been diagnosed with borderline personality disorder and post-traumatic stress disorder and that he has previously taken prescription medications to alleviate symptoms. He did not like the effect they had on his energy levels and claims that he prefers to rely more on other coping mechanisms that he has developed following engagement with a psychologist.
Consideration
Earlier in these reasons I reminded myself of the task with which the Legislature has burdened this Court under s 14(3) of the Act. This Court is empowered to make any decision that should, in its opinion, have been made at first instance. That necessarily directs the Court to consider the nature of the task to be undertaken at first instance which, in turn, directs one to s 10(1) of the Act.
Section 10(1) of the Act provides:
(1)    If an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to—
(a)the gravity of the offence in respect of which the applicant has been taken into custody; and
(b)the likelihood (if any) that the applicant would, if released—
(i)    abscond; or
(ii)   offend again; or
(iii) interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries; or
(iv) commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; and
(d) any need that the applicant may have for physical protection; and
(e) any medical or other care that the applicant may require; and
(f) any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement; and
(g) any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
I remain of the view that I expressed in R v Mehr as to the task required of this Court:[1]
It is well settled that s 10(1) creates a presumption as to bail. No doubt that reflects amongst other things the presumption of innocence and the price that the community places upon liberty in the absence of conviction for an offence. That the applicant should be granted bail is the starting point. Thereafter having regard to the factors identified and any other relevant matter bail should be refused if the bail authority is persuaded that the applicant should not be released on bail. Thus initially the legislature has struck the balance between the presumption that an accused is innocent until proven otherwise, on the other hand, and the right of victims, witnesses and the community more generally to be protected from offenders and to be confident that persons charged with offences will be brought to trial, on the other, in favour of granting bail, but commits to a bail authority the task of determining in a given case whether the balance so struck should remain.
[1] [2016] SASC 174 at [64].

This matter was called on before me on 13 December 2016. Counsel for K conceded that there were concerns regarding the proposed home detention bail address, being the address of his current partner, as his partner’s child, a five-year-old child, lived with his mother. Counsel submitted that if it was unacceptable that K live in a house with a child, K’s partner and her child were prepared to leave the premises and reside elsewhere.
Counsel indicated that ANCOR had undertaken an assessment of K’s relationship with his partner’s child, and ANCOR had formed the view that it was not inappropriate that they live together. That opinion was not brought to the attention of the Correctional Services Officer who wrote the Home Detention Report. The Home Detention Enquiry Report writer considered it inappropriate for K to be released on bail to his partner’s address. Counsel asked for the matter to be adjourned to allow inquiries to be conducted.
The prosecution was opposed to the application for release on bail. The prosecution noted that K’s offending history is of particular concern and submitted it showed him to be a high risk of re-offending. The prosecution was opposed to K being bailed to a Victorian address and considered that bailing him to his partner’s address was equally inappropriate, particularly because of the presence of his partner’s child. It was added that the current allegations are serious and given the nature of the alleged offending it would not be appropriate to allow any child contact.
The prosecution was not opposed to the adjournment applied for but indicated that in light of K’s history of breaching bail and bonds that home detention bail was not appropriate.
The matter resumed on 20 January 2017. Two additional affidavits had been filed in the interim. The first outlined the details of the breaches of bail and issue of warrants as set out above. Counsel submitted that breaches of bail were not grave. He also submitted that the number of offences of breach of bail for which K has been convicted and the number of warrants issued was very small considering the number of times that he has been on bail over the last 15 years. Counsel submitted that K could be relied upon to comply with the terms of any bail agreement.
Counsel also noted the annual review date of 31 January 2017 by ANCOR. If K was to be released on bail, then he would be reviewed under the provisions of that Act. The relevance of this is that, if I was minded to grant home detention bail, K would be subject to an additional layer of supervision.
K’s current ANCOR obligations were annexed to the second additional affidavit. Counsel conceded that K was subject to these reporting requirements at the time of the commission of the current offences. Counsel observed, however, that the contact with the complainant was reported in accordance with his obligations. This provides little comfort.
On 20 January 2017 counsel confirmed that that K’s partner and her son would make arrangements to move to a residence approximately 25 kilometres away from the proposed home detention address, and that K would reside at the proposed address alone.
The Home Detention Enquiry Report writer noted that the proposed residence is located within 400 metres of a popular children’s play café, 550 metres from a public library, 700 metres away from an aquatic centre and 1 kilometre away from a primary school.
The prosecution accepted K’s explanations for the breaches of bail to which reference has been made above. The prosecutor accepted that they may be classified as “minor breaches” however they are still breaches. The prosecution remained opposed to K’s release on bail.
K’s history of offending is deeply concerning. It provides me with no comfort that he will not re-offend if released on bail. In fact, I expect that given the opportunity he will.
I accept that the strictest bail conditions could be fashioned. But in view of his offending history, and in particular, the attitude toward the law, authority and the community generally that it bespeaks, I am not satisfied that he can be trusted to comply. As I said his word carries little weight. I accept that some of his breaches of bail may be considered trivial. But in the context of his offending taken as a whole, I think that characterisation inapposite. It is more likely that he has run the risk of the breach only to come unstuck, and when met by a mild response from the courts, has done so again. That likelihood, in turn, provides me with no comfort that he has not acted in breach of his bail agreements more generally. Whatever conditions are imposed, his history suggests he will test the boundaries.
The current allegations are most serious. The interference by a parent with their child sexually often has lasting debilitating and devastating consequences.
It would appear that K has paedophilic tendencies. Nothing was put before me in the way of reports or treatment outcomes. His tendencies cause me great concern bearing in mind, in particular, the location of the address proposed for home detention bail and its proximity to locations attended by children. Further, he will reside at that address alone without the inhibiting influence of any other adult.
I remind myself of the presumption of innocence and the presumption of bail. I remind myself that the starting point under s 10(1) is that K should be released. I take into account the delay in the progress of K’s matter through the system, his personal circumstances and the fact that he is no longer a risk of interfering with the investigation of the prosecution case. Nonetheless, I am persuaded that the presumption of bail is rebutted. The alleged offending is grave, his antecedents significant, his response to the authorities to date poor, and his risk of re-offending high.
Orders
The application is refused. K is remanded in custody.