R v Maguire (No. 2)

[2022] NSWDC 88

District Court

New South Wales

Medium Neutral Citation:

R v Maguire (No. 2) [2022] NSWDC 88

Hearing dates:

24 February 2022

Date of orders:

24 February 2022

Decision date:

24 February 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) The Crown’s application for detention is granted

(2) Bail is revoked and the offender shall go into custody forthwith

Catchwords:

CRIME — Bail — Detention application

CRIME — Bail — Show cause

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Cases Cited:

Director of Public Prosecutions NSW v Campbell [2015] NSWCCA 173

DPP of New South Wales v Zaiter [2016] NSWCCA 247

Moukhallaletti v DPP NSW [2016] NSWCCA 314

R v Farrell [2015] NSWSC 1082

Simpson v R [2021] NSWCCA 264

Zoneff v R [2000] HCA 28

Category:

Principal judgment

Parties:

Regina (Crown)
Raymond John Maguire (Offender)

Representation:

Rosheehan O’Meagher (Crown Prosecutor)
Michal Mantaj (Solicitor Advocate for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Conditsis Lawyers (Offender)

File Number(s):

2018/00080289 & 2018/00264850

Publication restriction:

Statutory non-publication order of the names of the complainants and of any information which may enable their identities to be ascertained

REVISED JudgEment on the CROWN APPLICATION FOR DETENTION

Introduction

1. Raymond John Maguire was found guilty after a trial of some significant length, concluding on February 18, 2022, when I delivered judgement and found him guilty of 15 counts.

The Offences

2. The first count is an offence of producing child pornography pursuant to s 91H(2) Crimes Act 1900 for which the maximum penalty is imprisonment for ten years.

3. Count 2 is a charge of engaging upon a conduct that exposed a child under the age of 14 years to indecent material with the intention of making it easier to procure the child for unlawful sexual activity, contrary to s 66EB(3) Crimes Act 1900 for which the maximum penalty is imprisonment for 12 years with a standard non-parole period of five years.

4. Count 3 is a charge of having sexual intercourse with a child above the age of ten and below the age of 14 years when under authority, contrary to s 66C(2) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years.

5. Count 4 is an offence of having sexual intercourse with a child above the age of ten years and under the age of 14 years under authority, contrary to the same provision, exposing the offender to the same maximum penalty.

6. Count 5 is another charge of having sexual intercourse with a child above the age of ten, under the age of 14 years when under authority, contrary to the same provision, exposing the same maximum penalty.

7. Count 6 is an offence of inciting a child under the age of 16 years to commit an act of indecency when the child was under the authority of the offender, contrary to s 61A(1) Crimes Act 1900. The maximum penalty for that is imprisonment for five years.

8. Count 7 is a charge of inciting a child under the age of 16 years to commit an act of indecency when under authority, contrary to the same provision, exposing the same maximum penalty.

9. Count 8 is an offence of sexual intercourse with a child above the age of ten and under the age of 16 years when under authority, contrary to s 66C(4) Crimes Act 1900 for which the maximum penalty is imprisonment for 12 years.

10. Count 9 is a charge of producing child abuse material contrary to s 91A(2) Crimes Act 1900 for which the maximum penalty is imprisonment for ten years.

11. Count 10 is an offence of sexual intercourse with a child above the age of ten and under the age of 14 years in circumstances of aggravation. The child was under authority of the offender, contrary to s 66C(2) Crimes Act 1900 to the maximum penalty of imprisonment for 20 years.

12. Count 11 contrary to the same provision, exposing the same maximum penalty, is a charge of sexual intercourse with a child above the age of ten and under the age of 14 years when under authority.

13. Count 12 is contrary to the same provision, exposing the same maximum penalty, sexual intercourse with a child above the age of ten, under the age of 14 years when under authority.

14. Count 13 is contrary to the same provision, exposing the same maximum penalty, sexual intercourse with a child above the age of ten, under the age of 14 years when under authority.

15. Count 14 is an offence of engaging in conduct, exposing a child under the age of 14 to indecent material with the intention of making it easier to procure the child from lawful sexual activity, contrary to s 66EB(3) Crimes Act 1900. The maximum penalty of imprisonment 12 years with a standard non-parole period of five years.

16. Finally, count 15, is a charge of committing an act of indecency toward a child under the age of ten years, contrary to s 61A(2) Crimes Act 1900 with a maximum penalty of imprisonment for seven years.

17. Thus, there is one offence contrary to s 91A(2) Crimes Act 1900, two offences contrary to s 66EB(3) Crimes Act1900, seven offences contrary to s 66C(2) Crimes Act 1900, two offences contrary to s 61O(1) Crimes Act 1900 one offence contrary to s 66C(4) Crimes Act 1900, one offence contrary to s 91A(2) Crimes Act 1900 in respect of child abuse material. I should add the earlier offence contrary to that provision was in respect to child pornography. There is one offence contrary to s 61O(2) Crimes Act 1900.

18. The offences contrary to s 91A(2) and to s 66C(2) and s 66C(4) are show cause offences.

The Bail Act

19. S 16B(1) Bail Act 2013 provides:

For the purposes of this Act, each of the following offences is a “show cause offence”—

1. an offence that is punishable by imprisonment for life,

2. a serious indictable offence that involves—

sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or

the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years.

The Trial

20. The proceedings commenced on 9 November 2021 before my court for the determination of pre-trial issues. On 10 November 2021, Mr Conditsis announced that he sought orders that the trial proceed before a judge alone and presented a notice of motion and affidavit in support.

21. On 11 November 2021, the Crown announced that it consented to the application. The parties did not wish to be heard against my continuing of the matter and I proceeded accordingly. The accused did not give evidence in response to the Crown case, although there were documents tendered that became exhibits and he relied upon evidence from his wife and a friend to prove good character. He has no prior antecedents as was revealed in the bail report the Crown provided, after I delivered my verdicts.

22. The offender relied upon the answers given in an ERISP in which he participated which dealt with some but not all the offences upon which he was presented for trial. He later chose not to participate in an interview in respect of those other offences and bears no opprobrium for exercising his right to take that course. He denied any wrongdoing at all in the interview, but aside from an exculpatory statement, there were answers upon which the Crown relies for the assessment of his credibility in accordance with Zoneff v R [2000] HCA 28.

23. A summary of the facts is as follows.

24. Count 1, the Crown alleged that the offender asked the complainant RH to undress and bend over. She took down her pants and underwear and the offender took photographs of her naked vagina. RH thought she was in Year 5 at school.

25. Count 2, the Crown alleged that in the shed of the rear of the offender’s home, he showed her pornographic images and touched her vagina. At the time the offender was an adult and the complainant was a child under the age of 14 years. The Crown alleged the offender touched the complainant’s vagina beneath her clothes with the intention of making it easier to procure the complainant for more sexual activity.

26. Counts 3, 4, 5, 10, 11 and 12 and 13 were the allegations of sexual intercourse with the complainant RH and AH when they were over the age of ten years but under the age of 14 years when under the authority of the offender.

27. Count 3, 4 and 5 were in respect of RH. Count 3 was in respect of an alleged act of digital penetration when the offender showed a pornographic video. Count 4 was an alleged act of penile vaginal penetration. Count 5 was an alleged act of penile vaginal penetration.

28. Counts 10, 11, 12 and 13 in respect of AH. Count 10 was upon facts alleging that when the complainant was doing homework, she was directed to lie on the bed, the offender pulled down her pants and digitally penetrated her genitalia. Count 11 was an allegation that in the dining room when AH was against the bookshelf, the offender digitally penetrated her genitalia. Count 12 was upon an allegation that the offender digitally penetrated AH’s genitalia in her bedroom and Count 13 was an allegation that after he digitally penetrated her genitalia, he said he wanted to try something new and penetrated her genitalia with his penis.

29. Count 6, 7 and 15 were in respect of the complainant RH and SC-A. Count 6 and 7 were an allegation of the offender inciting the child RH to commit act of indecency towards him when under his authority. In count 6, it was an allegation that when alone in the car, he asked her to insert lollies into her vagina which she did, after which he consumed them. Count 7 was an allegation that he had her use a shampoo bottle to penetrate her vagina when she was in the bath.

30. In count 15 it was alleged, that the offender exposed his penis to SC-A and touched it in her presence. The allegation founding count 14 involving SC-A included that when in the loungeroom of the home, the offender showed pornographic material on an iPad before he immediately exposed his penis; there was other preceding conduct the subject of evidence to which I referred in my judgement.

Consideration

31. There can be no question that the offender will suffer a period of imprisonment which at this point I propose will be announced as an aggregate sentence upon the synthesis identified as appropriate for each of the individual counts. I cannot attempt to quantify what the indicative sentences might be at this stage because I have only the objective facts and circumstances that informed my decision regarding the verdicts; no doubt there will be evidence in mitigation on behalf of the offender by which he hopes to ameliorate the extent of the punishment that he must face.

32. The Crown has made an application pursuant to s 50 Bail Act 2013 for revocation of the offender’s bail and for him to be detained. This was indicated upon the findings of guilt on February 18, 2022, and thereafter the matter was stood over to find a date suitable to all parties for the hearing of this application. It is now some six days after the Crown announced its intention.

33. The process involved in this determination is of two-steps as expressed in the authorities including Moukhallaletti v DPP NSW [2016] NSWCCA 314. The Court is to determine first whether the offender has met the burden of proof upon him on the balance of probabilities to show cause why he should not be detained.

34. The matters that are to be considered, if he has shown cause why he should not be detained, are set forth in s 18(1) Bail Act 2013.

35. There is, as said to me, a recognised overlap between the decision that to be made first upon whether the offender has shown cause and some of the matters that are also relevant to the determination of the question whether there is an unacceptable risk upon which he should be denied bail in accordance with s 17 Bail Act 2013.

36. In the Director of Public Prosecutions NSW v Campbell [2015] NSWCCA 173, the Court held that cause had not been shown in circumstances where it was likely that a term of imprisonment would be imposed, given the seriousness of the offences to which the respondent had pleaded guilty and given the respondent’s poor compliance with bail and parole conditions in the past. There is no material before me on which I conclude that there is a history of poor compliance with bail; it has been said to me that he has been on bail for some four years, awaiting the determination of this trial.

37. Assistance is available from the judgement of Button J in Moukhallaletti v DPP NSW ibid. His Honour itemised basic principles relevant to whether an applicant has shown cause that detention is unjustified, appearing at paras [50] and following. First his Honour noted that this question is separate from a question whether there would be unacceptable risks. Secondly his Honour noted that Parliament did not enumerate the facts that may show cause in contrast to those enumerated for the assessment of unacceptable risk. Thirdly his Honour observed that there would often be a substantial overlap between factors relevant to each of the questions. Fourthly cause may be shown by a single powerful fact or a powerful combination.

38. The offender relies upon that item in his Honour’s judgement, referring to psychological difficulties the offender is experiencing, the fact that he has been on bail for some four years without breach, the impact of the Covid-19 virus upon the custodial setting, and the absence of any unacceptable risks that might have and apparently in the past have informed the decision to allow him bail.

39. His psychological evidence is found in a document provided by Carlos Camacho written on 9/11/21. It is one page. It includes the following:

“Mr Maguire has been attending regular psychological treatment sessions of depression and anxiety. I am also treating him for stress. He also suffers from panic attacks when stressed. Rapport appears good. I will continue to provide him regular treatment sessions using CBT (cognitive behavioural therapy) and counselling. I have seen him at my practice in the grounds of Wyong Hospital. I’m aware of his current legal issues. Due to severe stress and panic attacks, I support Mr Maguire’s request to have a support person within the Court. Please take this into consideration.”

40. This document on its face does not appear to be one prepared for the purposes of meeting this application but was for an application for him to have a support person in court. Nonetheless, it does provide material relevant to the question that I must resolve.

41. A treatment plan is identified for depression, anxiety, and stress management. The anticipated treatment outcomes are said to depend upon medium to long term treatment, ultimately to decrease symptoms; the treatment will involve cognitive behavioural therapy and counselling.

42. The report provides scant material but upon its tender, which the Crown does not oppose, there is evidence before me that he does suffer anxiety and stress and a measure of depression, it would appear from circumstances that must be compounded by the fact that he has been found guilty of these 15 charges and now faces incarceration.

43. The fifth principle advanced by Button J, was that the Court should not place a gloss in the words used in the Bail Act. It is not for the applicant to show special exceptional circumstances in the application. Parliament has reserved that for different circumstances; his Honour referred to s 22 of the Act. S 22 provides:

1. Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision—

1. an offence for which an appeal is pending in the Court of Criminal Appeal against—

1. a conviction on indictment, or

2. a sentence imposed on conviction on indictment,

2. an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).

2. If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.

3. Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section.

44. I note that it does not apply to this case and also that this appears to have been a provision introduced upon the repeal of s 9D Bail Act 2013 which attached special or exceptional circumstances to justify a bail decision in respect of offences such as those of which this offender has been found guilty; hence, the merit in his Honour’s recognition in his fifth principle that one should not put a gloss of special or exceptional circumstances in a show cause determination.

45. Sixthly, his Honour referred to the fact that there were countless examples where a single judge of the Supreme Court found an applicant had shown cause or failed to do so. His Honour referred to a judgement by R A Hulme J in DPP of New South Wales v Zaiter [2016] NSWCCA 247 at [30] to [33]. His Honour noted that unless they contain a discussion of legal principles those decisions have little or no precedential value because many bail decisions are a value to judgements about the interplay of a multitude of factors, not determinations of legal questions.

46. Another authority provided on behalf of the offender is Simpson v R [2021] NSWCCA 264, referring to para [77] and following. Harrison J agreed with Dhanji J as did Davies J, subject to some further comment but ultimately agreeing with reasons that bail granted should be on the conditions proposed. The copy of the document provided does not tell me where the judgement of Dhanji J commences, but I am comfortable with the view that it includes para [77] and following. His Honour noted the difference between a person remanded in custody awaiting trial because bail has been refused, which is different from someone who is a sentenced prisoner where rehabilitation programs are more readily available. His Honour referred to the judgement of McCallum J in R v Farrell [2015] NSWSC 1082 at [16] where her Honour wrote:

“It is important to note that the determination of the present application must not be approached on the basis that it would be sensible or expedient for the respondent to begin serving an apparently inevitable custodial sentence now rather than at a later point when he is duly sentenced by the District Court. That is not the test. The task for the Court on the present application is to undertake the evaluative judgment ... having regard to any relevant considerations under s 18.”

47. Her Honour was there concerned, as was the Court in Simpson v R ibid, with an assessment of whether there was an unacceptable risk. The statements of principle, although they might have some bearing upon those matters that should or might be seen to overlap, must be read in the light of this as an application for detention, in respect of show cause offences, upon which the offender has the burden of proof.

48. The Crown submits that the offender has not shown cause why his detention is not justified. He is in the position of facing a custodial sentence within the near future once sentence proceedings are heard and determined. The offences of which he has been found guilty are serious offences that carry an implication of risk to the community. It cannot be said that he poses any risk to the witnesses called in the trial, including the complainants who gave evidence of the misconduct alleged of him.

49. The evidence of psychological distress is not of such magnitude that the offender should not be called upon to go into custody now. It is not a matter of expediency that the Court should bring to account. The question to be resolved is whether he has shown cause that his incarceration, pending the determination of his sentence without bail, is not justified.

47. S 16A Bail Act 2013 provides:

1. A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

2. If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences).

3. This section does not apply if the accused person was under the age of 18 years at the time of the offence.

51. The section thus deals with what is required if the offender discharges that burden and provides that the section does not apply to an accused person under the age of 18 years at the time of the offence.

52. If I come to the view that he has not shown cause why his detention is not justified, I am mandated by the terms of this provision to refuse bail.

53. Notwithstanding, what has been said on behalf of the offender, I am not satisfied that he has shown cause as to why his detention is not justified.

54. The matter upon which his submissions are focussed with the greatest intensity has been the psychological issue revealed in the short letter, provided by a psychologist, without a detailed background of the complaints that led to the opinion that the offender suffers depression, anxiety, stress. There is brief material in that document upon which one could assess the true measure of that sequelae. It is the fact that there are challenges in the custodial setting at the present time, arising from Covid-19 pandemic. It has impacted upon all levels and aspects of society, but it is not sufficient in my view to meet the test and demonstrate that his detention is not justified.

55. I accept that he has not displayed any history of failure to comply with bail and the Crown has conceded that the risk of flight is minimal if not absent altogether. I note that he has no criminal history. I have nothing before me as to the full extent of his community ties. The strength of the prosecution case is not a relevant consideration, bearing in mind that he has been found guilty and convicted of these offences.

56. If I am wrong in the view that his material is not sufficient to satisfy the Court that his detention is not justified, upon consideration of the matters in s 18, I would come to the view that it is appropriate that he be refused bail. I note that he does not have any criminal associations, he relied upon good character on the course of the trial. He will not be likely to spend a great deal of time in custody, pending the determination of the sentence proceedings. They will have to be resolved within six weeks for various reasons I need not trouble parties with now.

57. He has been convicted of the offences. He will be serving a custodial sentence. What is yet to be determined is the length of the sentence but it will not be less than a significant sentence, considering the serious criminal misconduct of which he has been found guilty. I do not believe there is any special vulnerability demonstrated in the psychologist’s letter that should excite a justified grant of bail, and there is nothing before me about his need to be at liberty for any other lawful reason. I accept that there is no conduct of the offender toward any of the victims of these offences or any family members of the victims after the offences, which would be held against him, and I am unable to conclude that on the material before me, including what was led in the trial, that if he remained at large he would endanger the safety of victims or other individuals.

58. The Crown’s fear as I understood the submission is that there is a risk of the offender engaging upon comparable activity if the circumstance is presented to him. I do not attribute significant weight to that submission, considering what was noted by Mr Mantaj, that it has been some years since the last offence of which the offender has been found guilty.

Decision

59. For these reasons, my order is that the application for the detention of the offender is granted. His bail is revoked and he shall go into custody forthwith.

**********

Decision last updated: 29 March 2022