R v Ravesi - [2016] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v RAVESI
[2016] SASC 128
Reasons for Decision of The Honourable Justice Nicholson
11 August 2016
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application by an accused, a prescribed applicant, to review an order of a Magistrate refusing simple bail. Application for review brought on the new basis that bail on home detention conditions is warranted.
Held: application for review allowed. The application for bail is governed by section 10A of the Bail Act 1985 (SA). However, special circumstances established and bail on home detention conditions granted.
Bail Act 1985 (SA) s 10, s 10A, referred to.
R v Lombardi [2013] SASC 61, considered.

R v RAVESI
[2016] SASC 128
Criminal: Bail review
NICHOLSON J.

On Thursday 4 August 2016, I heard an application by Mr Paul Anthony Ravesi for the review of a decision by a Magistrate to refuse simple bail. For the purpose of the review, the applicant modified his application and now seeks bail on home detention terms. The Director of Public Prosecutions opposes the grant of bail on any terms. The principle bases for the opposition are: that the applicant is a prescribed applicant pursuant to section 10A of the Bail Act 1985 such that there is a presumption against bail in the absence of “special circumstances”; the risk of re-offending; and the perceived need by the alleged victim of a number of the charged offences for protection.
The applicant has been charged with a number of offences said to have been committed between 5 April 2016 and 8 May 2016. The various charges allege, inter alia, assault by words in an offensive email, acts of property damage, physical assault, carrying an offensive weapon, threaten to kill, an act likely to endanger life, breach of bail and two contraventions of an intervention order (one by the sending of text messages and one by approaching and assaulting the protected person). The alleged offending arises out of a very difficult relationship that the applicant has with his half-brother, the alleged victim of most of the offences charged.
At the hearing of the review I heard from the applicant, the applicant’s long term general practitioner (who gave sworn evidence) and from counsel for the Director of Public Prosecutions.
The applicant and the alleged victim share the same mother but have different fathers. There is no doubt that their relationship has seriously broken down, perhaps irretrievably. Further, it would seem that the mother and the mother’s daughter (the applicant’s half-sister) have sided with the alleged victim. The genesis of this relationship breakdown is complex and goes back over a substantial period of time. According to the applicant, his half-brother and half-sister have taken advantage of their mother and taken control of her financial affairs for their own benefit.
The charges that have been brought against the applicant are denied. He maintains that they are based on a false factual foundation. According to the applicant, it was he who initially went to the police. However, once all parties were interviewed, the police took statements from his half-brother and half-sister and charged the applicant with various offences including offences involving violence towards his half-brother and his mother’s property.
The applicant has been in custody since 8 May 2016, a period of approximately three months. On the basis of information provided by counsel for the Director, in the event that the applicant were to continue to defend the charges, he would be unlikely to receive a trial in the District Court until May or June next year at the earliest.
To this point, the applicant has been refused simple bail on a number of occasions and on the review before me he has amended his application to apply for home detention bail. A home detention bail report has been obtained with respect to nominated premises at Alberton and, according to the author of that report, the proposed premises are suitable with no concerns raised. The premises are occupied by a friend of more than 20 years who is also a work associate of the applicant and that friend’s two young children.
The applicant is 48 years of age and has no prior criminal record of any present significance.[1] In the early years he was a professional footballer with a club in the South Australian National Football League. He suffered a very serious motor vehicle accident which gave rise to a traumatic brain injury in or about 2009. However, prior to that he appears to have had some success in business with qualifications as an accountant.
[1] The applicant’s prior record consists of a small number of motor vehicle offences and a course of conduct involving dishonesty offences for which he was imprisoned with a non-parole period of one year in New South Wales in 2001.
It is apparent, on the information available, that in the event and to the extent that the applicant has been guilty of volatile, violent and otherwise criminal behaviour, it has been directed, in large part, towards his half-brother and as a result of the breakdown in their relationship as earlier described. There is nothing before the Court to suggest that the applicant poses a particular risk to the community at large or other specific persons, including his friend or his friend’s two children who live at the proposed home detention residence. In this respect, I note that the applicant and the occupier have been friends for many years prior to and after the birth of the two children. I am prepared to infer that the applicant has interacted with the children and that the friend, in allowing his residence to be proposed for home detention bail purposes, has no concerns in this respect.
The Director maintains that the applicant is a prescribed applicant as that term is defined in section 10A of the Bail Act 1985 and as such does not enjoy a presumption in favour of the grant of bail. Section 10A(1) provides:
Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant’s release on bail.
The applicant challenges the contention that he is a prescribed applicant. The term “prescribed applicant” is defined in section 10A(2) to include:
(b)an applicant taken into custody in relation to an offence against s 17[2] if there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under s 11(2)(a)(ii); or
(ba)an applicant taken into custody in relation to an offence against s 31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or ...
[2] That is, non-compliance with a bail agreement.
The applicant contends that the interim intervention order to which he was made subject with his half-brother as the protected person has never been tested in or confirmed by a court. As I pointed out to the applicant during the argument, such an interim intervention order remains in place unless and until it is set aside. It has not been set aside. Further, the applicant is charged with having contravened the interim intervention order in at least two ways, including by assaulting his half-brother in a way that involved physical violence or a threat of physical violence. I am satisfied that the applicant is a prescribed applicant for the purposes of section 10A.
I have had regard to a number of the recent authorities dealing with the term “special circumstances” in this context. In particular, I have had regard to R v Lombardi.[3] Essentially, the discretion to grant bail in such circumstances will exist to allow release on bail to prescribed applicants for whom the general rule would, in the special circumstances of their case, result in an unintended hardship or injustice. A discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which the parliament had in contemplation when reversing the presumption.
[3] [2013] SASC 61 at [20]-[24].
In my view, the risk that the applicant poses is, for the reasons earlier given, relatively confined. Further, the facts: that the proposed home detention premises are approximately 20 kilometres away from the half-brother’s residence and a significant distance from the mother’s North Adelaide residence and from the city generally; that any grant of home detention bail will come with strict restrictions on the permitted movements of the applicant; and that the applicant has now spent three months in custody and understands that any breach of condition of bail, particularly one involving approaching or communicating in anyway with his half-brother, is likely to see him back in custody for a substantial period of time before the allegations and his defence to the allegations can be tested at trial, all serve to ameliorate further the risk that this applicant poses.
In addition, I am satisfied, on the basis of the evidence given by the applicant’s general practitioner, that for the applicant to remain in custody on remand for a potentially lengthy period of time would result in unintended hardship or injustice to him because of his medical condition. In brief, the applicant, as a result of serious injuries suffered in the motor vehicle accident, has ongoing disabilities caused by a traumatic brain injury. Further, in 2014, the applicant was the victim of a number of assaults (unprovoked by him) during which he sustained further trauma to his head.
The applicant has needed to consult psychologists, physiotherapists, rehabilitation specialists and a neuropsychiatrist. According to his general practitioner, he is making a slow and steady recovery but still needs to see, on a regular basis, a neuropsychiatrist to assist with the applicant’s consequential adjustment disorder and post-traumatic stress disorder. He continues to need professional assistance to assist with reclaiming or developing cognitive skills which have been lost.
The applicant sees a professor of neuropsychiatry approximately every three months. During these sessions the applicant’s behaviour and performance with respect to defined tasks over the previous three months is reviewed and a plan for how the applicant should conduct himself in terms of particular life skills, daily tasks and cognitive development tasks is generated for the next three months. In between visits to the psychiatrist, the applicant regularly sees his general practitioner. This intensive treatment and intervention by the two medical practitioners with whom the applicant has a relationship will not be available to him whilst a prisoner on remand. In the circumstances of this case, where the applicant is not a sentenced prisoner but a prisoner on remand awaiting the determination of charges against him, I am prepared to give more weight to his medical circumstances than might otherwise be given were he a sentenced prisoner.
A further consideration to which some weight is to be given is that the applicant is the sole family member either available to or willing to give care to his elderly father who has suffered with a long standing bi-polar disorder. According to the applicant, he has cared for his father at home for many years. Now that the applicant is in custody his father has been taken into a hospital or care facility. The father needs daily care and unless and until the applicant can return to live with him at the father’s house in Hawthorn, it may be that the father will have to stay in full time care. Of course, it will not be possible for the applicant to assist full time or even significantly with his father’s care were the applicant to remain confined on home detention bail at Alberton. Nevertheless, I am prepared to accept that it is important to the father that his son be available to provide some emotional and family support not otherwise available in a care facility.
Should the applicant be on strict home detention bail conditions it will be a matter for the supervising authorities as to whether and the extent to which, if at all, he might be given permission to visit his father. However, he will at least be available at home to telephone his father and to telephone the care facility to ensure that his father is receiving the care that he should be receiving. I place some but not significant weight on this consideration given that home detention bail conditions will necessarily severely restrict the extent to which the applicant can care for his father in any event.
I am satisfied that to refuse home detention bail by simply applying the presumption arising from the fact that the applicant is a prescribed applicant would, in the circumstances of this case, result in unintended hardship and injustice to the applicant. I am also satisfied that the applicant in the circumstances of this case does not pose the risk or at least a risk to the extent that parliament had in contemplation when reversing the presumption.
Whilst nothing as to the future can be guaranteed, I have had regard to the various considerations that must be taken into account when determining whether or not to grant bail as set out in section 10(1)(a) and (b). In my view, the likelihood of absconding is low, any risk of re-offending is relatively low and one that, in the circumstances, should be able to be managed and there is no history of significance involving prior breaches of bail or court orders.
Further, I have not overlooked section 10(4) which provides:
Despite the other provisions of this section, if there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim might have, or perceive, for physical protection of the applicant.
I accept on the information available and given the allegations underlying the various charges, that the half-brother has or may perceive a need for physical protection from the applicant. This is an important consideration and one to which significant weight must be given, as required by section 10(4). Nevertheless, for the reasons I have given, I think this risk can be ameliorated in the circumstances of this case by the imposition of strict home detention bail conditions.
I allow the application for review and will make orders granting bail on home detention conditions. In addition to the 12 conditions recommended by the author of the home detention bail report provided on 3 August 2016, the following conditions 13 to 18 will also be included.
13.I will not be within 100 metres of 27 George Street, North Adelaide.
14.I will not be within 1 kilometre of 258 Belair Road, Torrens Park.
15.I will not contact in any way directly or indirectly, by any means, or attempt to contact, either directly or indirectly, Jane Stella Ravesi or Mark Ravesi, save that communications may be made on my behalf by a solicitor instructed to act on my behalf to either Jane Stella Ravesi or Mark Ravesi or their respective solicitors.
16.A further exception to Condition 15 is that I may arrange for my Community Corrections Officer to contact Jane Stella Ravesi and to make such arrangements as are necessary to enable me to obtain my belongings from my father’s (Anthony (Tony) Ravesi) house, at 36 Clifton Street, Hawthorn.
17.Any permission to visit my father, Anthony (Tony) Ravesi, will be contingent on the Community Corrections Officer giving prior notice to Mark Ravesi of any intended visit.
18.I will forfeit to the Crown the sum of $500.00 if I fail to comply with a term or condition of this Bail Agreement.