R v PETERS - [2020] SASC 191

Supreme Court of South Australia
(Criminal: Application)
R v PETERS
[2020] SASC 191
Reasons for Ruling of The Honourable Justice Livesey (ex tempore)
2 October 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The respondent was arrested and charged with contravening on a second or subsequent occasion a term of an intervention order contrary to s 31(2aa)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Bail was applied for and granted in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) (“the Act”) the Director of Public Prosecutions made an application in the Supreme Court seeking a review of the order of the Magistrate granting the respondent bail. The respondent concedes that he is a “prescribed applicant” within the meaning of s 10(2)(ba) of the Act, but seeks bail on strict home detention conditions.
Held:
1. The respondent has not established "special circumstances" and there is a need to protect the victim of a number of assaults.
2. The respondent’s application for bail is dismissed.
3. The Director’s application for review of bail is allowed. Bail is revoked.
Bail Act 1985 (SA) s 10A, s 14; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31, referred to.
Coulthard v The Queen [2020] SASC 173; R v Hayes [2018] SASC 114; R v Lombardi (2013) 115 SASR 577; R v Webb [2019] SASC 8, considered.

R v PETERS
[2020] SASC 191
Criminal: Application
LIVESEY J:
Introduction

This is an application for review of bail by the Director of Public Prosecutions pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following the grant of bail without strict home detention conditions on 30 September 2020.
This morning, the respondent to the Director’s application seeks bail on strict home detention conditions.
It is submitted on behalf of the Director that by reason of the seriousness of the offending, the need for protection of the victim and the respondent’s criminal antecedents, bail should have been refused. It is also submitted and conceded that the respondent is a “prescribed applicant” within s 10A(2)(ba) of the Act.
The subject alleged offending
By Information dated 30 September 2020, the respondent is charged with having on 26 September 2020 contravened on a second or subsequent occasion a term of an intervention order contrary to s 31(2aa)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The prosecution case is that on Saturday, 26 September 2020 at around 10 pm the respondent approached a woman, the niece of the protected person, when she was at a service station. The niece was sitting in the driver’s seat of her car when the respondent approached the driver’s window which was open. It is alleged that the respondent then said to the niece: “I have a video of [the protected person] kissing another bloke and she doesn’t know I have it. I’m going to stab her five times when I see her”.
The niece says she could see the anger in the respondent’s face. She did not respond. She says that she declined to give the respondent a lift and he then walked away. The niece says that she believes the respondent is capable of following through with the threat.
The protected person is alleged to have told police that she is aware of the threat and is “really scared” and “unable to eat or sleep”. She says that she “constantly feels sick to her stomach” because of her fear of the respondent and “what he could do”. She has fears for her life. She says that she knows that the respondent is “angry with her and will get her one day”.
The protected person is in domestic violence accommodation and does not feel able to leave that address. She is apparently “unsure what else to do” because the respondent “constantly intimidates [her] and breaches” the terms of the existing intervention order.
When the respondent was arrested on 29 September 2020 he was cooperative with police.
The circumstances of the respondent
The respondent is 36 years of age and a traditional Aboriginal man. He was in a relationship with the protected person for more than 20 years. They have two children together. I was told that he is a mentor to younger Aboriginal men and “a significant cultural figure” in the Yalata community. He was participating in a Sorry camp at the time he was arrested. Regrettably, the relationship between the respondent and the protected person has been marred by alcohol abuse over the years.
The respondent’s criminal antecedents date back to various driving offences in 2002. Later that year he was convicted of disorderly behaviour and hindering police and sentenced to four months’ imprisonment which was suspended upon entry into a good behaviour bond for 18 months. In 2004 he was found to have breached the terms of that bond and it was extended. There were further driving offences in 2005 and 2006.
In 2008 the respondent was convicted of failing to comply with a bail agreement and resisting police. In 2009 he was sentenced to a term of imprisonment of three years and six months with a non-parole period of one year and three months for an aggravated offence of causing harm against own child or spouse (two counts) and damaging property.
In 2014 the respondent was convicted of disorderly behaviour and using an offensive weapon in a school or public place. In 2016 the respondent was again convicted of failing to comply with a bail agreement (three counts) as well as contravening the terms of an intervention order (two counts). For these he was convicted but discharged without penalty.
In 2017 the respondent was convicted of failing to comply with a bail agreement and sentenced to imprisonment for two months and one week. In 2018 the respondent was convicted of an aggravated assault against a child or spouse as well as contravening a term of an intervention order and failing to comply with a bail agreement. For these, he was subjected to a bond to be of good behaviour for 12 months.
On 26 February 2020 the respondent was convicted and fined for fighting. On 13 August 2020 the respondent was convicted of contravening an intervention order (three counts), failing to comply with a bail agreement (two counts) and an aggravated offence of committing an assault against his own child or spouse with a weapon, as well as assaulting police (two counts). For these he received a sentence of imprisonment of nine months and two weeks backdated to commence on 9 January 2020 by Judge Barrett.
The order of the District Court was that the respondent be released after serving seven months, on condition he enter into a bond to be of good behaviour for one year and six months with conditions and supervision.
I have earlier today been provided with an extensive chronology prepared by the Director’s office, attaching a number of documents including apprehension information and the sentencing remarks of Judge Barrett. I have considered those.
The application for review of bail
It would appear that the respondent had only been released from prison on 13 August 2020, six weeks before the subject alleged offending.
Ms Cream, who appeared for the respondent today, contended that there were “special circumstances” established by the combination of a number of matters. First, she emphasises that, though there have been many allegations of domestic violence, there is a history of matters not proceeding. Secondly, given that history, these subject matters may well not proceed. Thirdly, it is suggested that the case is not a strong one and the offending is denied by the respondent. The respondent says that he was in fact given a lift by the niece of the protected person. I was told that there has not yet been an opportunity to consider any relevant closed-circuit television footage. Fourthly, it was submitted that there can be conditions imposed regarding abstinence from alcohol, as well as regular testing and supervision. Finally, it was submitted that there is a stable address at which bail can be considered on strict home detention conditions, six hours away from the protected person.
Disposition of the application for review of bail
The respondent confronts a presumption against bail pursuant to s 10A(1) of the Act. As he is an Aboriginal man, I bear in mind the observations made in R v Hayes[1] and R v Webb.[2]
[1] R v Hayes [2018] SASC 114 (Kelly J).
[2] R v Webb [2019] SASC 8, [30] (Hinton J).
Before the Magistrate, the submission by the prosecution was that the respondent should be remanded for the protection of the victim given the significant history of domestic violence, however, the prosecution submitted that, if bail were granted, it should only be on strict home detention conditions precluding attendance in Ceduna or Yalata. As it turned out, bail was not granted on strict home detention conditions but on conditions which confined the respondent to Port Lincoln. The fact that the respondent was a “prescribed applicant” was overlooked.
As I have said, the respondent must demonstrate “special circumstances”. In my opinion, the circumstances of this case are unfortunately typical and well within the category Parliament had in mind when prescribing this class of offending. I refer to R v Lombardi[3] and Coulthard v The Queen.[4] I find that “special circumstances” have not been established.
[3] R v Lombardi (2013) 115 SASR 577.
[4] Coulthard v The Queen [2020] SASC 173.
In my view, the alleged offending is extremely serious. If proved, the respondent will have committed yet a further breach of the clear terms of an intervention order at a time when he is on a bond to be of good behaviour. To borrow from what was said in R v Webb, this matter is not “finely balanced”.[5] There is a clear need to protect the victim in this case.
[5] R v Webb [2019] SASC 8, [30] (Hinton J).
In the circumstances, it is my opinion that the Director’s application should be granted and the respondent’s application should be refused. Bail is revoked.