R v Shamseddini - [2013] SADC 156

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SHAMSEDDINI
[2013] SADC 156
Reasons for Decision of His Honour Judge Slattery
20 November 2013
CRIMINAL LAW - PROCEDURE - BAIL
Accused's application for bail - operation of s10A Bail Act.
Held - application refused. No special circumstances disclosed.
Bail Act 1985 s10A; Criminal Law Consolidation Act 1935 s248 , referred to.
R v Lombardi [2013] SASC 61; R v Buhlmann [2010] SASC 123; Saywell v Yiu (1976) 14 SASR 56, applied.

R v SHAMSEDDINI
[2013] SADC 156
JUDGE SLATTERY

Further application for bail lodged by Mr Shamseddini.
Mr Shamseddini is charged on Information dated 22 April 2013 with 5 counts. The first count involves an allegation of threatening a person involved in judicial proceedings. The second count involves an allegation of assault. The third count is involves an allegation of damaging property. The fourth count alleges threats against a person involved in judicial proceedings and the fifth count alleges threatening harm.
All of these counts principally involve two people, Svetlana Ogladkova and Margarita Ogladkova. Margarita is the former girlfriend of the accused. Svetlana is the mother of Margarita. At the time of the commencement of the relationship between them, Margarita was 18 years of age and the accused was about 34 or 35 years of age. At the time of the alleged offences, Margarita was aged about 22 years.
S10A of the Bail Act 1985 (SA) has application as the accused has been taken into custody in relation to an offence against s248 of the Criminal Law Consolidation Act 1935.
In those circumstances it is necessary for the accused to displace the presumption against bail that operates under s10A of the Bail Act 1985 by establishing the existence of special circumstances.
The meaning of the expression “special circumstances” has now been thoroughly dealt with in two decisions of the Supreme Court.[1] The following approach is derived from the authorities:-
1. The persons to whom s10A apply can, generally, be considered to pose a relatively high risk to the public if released on bail than many other categories of offenders.[2]
2. The words special circumstances should be given their natural and ordinary meaning and not read in a restrictive manner because they are wide, comprehensive and flexible words.[3]
3. The section should be interpreted having regard to the principle that a person charged with an offence is presumed innocent.[4]
4. Each matter turns on its own peculiar facts and the words special circumstances cannot be comprehensively or exhaustively defined although the rationale of the provision is clear enough.[5]
[1] R v Lombardi [2013] SASC 61; R v Buhlmann [2010] SASC 123.
[2] Lombardi at [13].
[3] Bulhmann at [2]; Saywell v Yiu (1976) 14 SASR 56 at 58.
[4] Bulhmann at [5]; Lombardi at [20].
[5] Lombardi at [22] and [24].
In the last application for bail, Judge Muscat delivered detailed reasons. In this application, which, to an extent, is a repetition of the matters ventilated before previous Judges of this Court (Judge Tilmouth, Judge McIntyre and Judge Muscat), three majour points were made by Mr Mancini for the accused. I shall deal with them in turn.
The first was that by virtue of the continuing incarceration of his client, there was no proper treatment of his accepted psychiatric condition. The failure to properly treat the psychiatric condition, so the argument went, meant that the effect of that condition was compounded and that compounding effect prejudiced the proper preparation of the matter for trial.
In support of the application, Mr Mancini helpfully delivered to me a bundle of material containing 21 separate documents. He also provided to me a further report of Dr Paul Furst dated 8 November 2013 which followed Dr Furst’s earlier report dated 2 September 2013. In relation to the question of the psychiatric condition, it is clear from the material in the file and in particular the bail enquiry reports that had previously been provided to this Court that the defendant’s medical file reasonably consistently shows: “Mr Shamseddini has not seen the visiting Psychiatrist nor has he been on the list to see the Psychiatrist… there is no information in the case notes from any of the four consultations that he has had with the resident doctor to suggest that he has any significant mental health problems or needs for particular treatment…” (Bail Enquiry Report 28 May 2013).
That Bail Enquiry Report proceeded other reports which indicated that at the time of his incarceration, Mr Shamseddini made no mention of nor complaint about any question of any psychiatric condition. Those sentiments were repeated in other Bail Enquiry Reports (21 May 2013).
I have had regard to the report of Dr Craig W J Raeside dated 13 July 2013 which was requested by Judge McIntyre for the purposes of a previous bail enquiry matter. Dr Raeside also confirmed (at page 5) that prior to his incarceration, Mr Shamseddini said that he regularly saw his General Practitioner but was not seeing a Psychiatrist/Psychologist even though he had done so in the past. Dr Raeside reported that Mr Shamseddini’s personality disorder is unlikely to be responsive to any particular intervention and that if he was released into the community it is unlikely that he would receive any particular treatment that would be more beneficial than that which he is currently receiving. Dr Raeside was also very concerned about material being communicated between Mental Health staff and Mr Shamseddini and opined that it was likely that efforts to reengage Mr Shamseddini with Community Health Services would prove problematic given his past history. Such reengagement may prove difficult.
I have had full regard to the content of the reports of Dr Paul Furst. In his second report and after recounting the history given to him by Mr Shamseddini, Dr Furst assessed Mr Shamseddini as being fit to stand trial. Dr Furst then made a psychiatric assessment of Mr Shamseddini. He assessed him as suffering post traumatic stress disorder as result of multiple traumas. He also assessed him as suffering borderline personality disorder which is characterised by “… a pervasive pattern of instability of interpersonal relationships, self image and affects (mood) and marked impulsivity associated with:-
i)
ii)
iii)
iv) impulsivity
v) recurrence suicidal behaviour, gestures or threats or self mutilating behaviour
vi)
vii)
viii) inappropriate and intent anger or difficulty controlling anger and
ix) transent stress related ideation or disassociative symptom.
I have only made reference to the placita that are immediately relevant.
Dr Furst opined that Mr Shamseddini’s post traumatic stress disorder is poorly controlled and given that long history of him suffering the condition, it is likely that improvements will be slow and require prolonged and intense treatment. That process can take between 6 and 12 months before the effectiveness of medication can be evaluated. That is, it is not clear what particular type of medication would be successful and to some extent that is a matter of “trial and error”.
Ultimately Dr Furst opined that Mr Shamseddini’s treatment in the prison system is neither adequate or equivalent to what would be available in the community. That view was expressed after Dr Furst viewed that the process of providing assistance to Mr Shamseddini would be required to be assessed over a 6 to 12 month period. Ideally, Mr Shamseddini should be referred to a private Psychologist and a private Psychiatrist for Adjunctive Pharmalogical management of his PTSD.
Dr Furst also opined that home detention bail could prove to be of assistance in ensuring that Mr Shamseddini attended his appointments and did not access non-prescribed substances. Dr Furst put the position as no higher than a possibility and did not address the question of a circumscribed period of time before trial.
In my opinion, whatever merit there is in the fist point raised by Mr Mancini, having regard to the fact that Mr Shamseddini’s trial commences on 25 November of this year, it is quite clear on the evidence that I have seen that release of him on home detention bail for the purposes of Mr Shamseddini receiving the assistance referred to by Dr Furst would not make any or any sufficiently appreciable difference in the few days between the date of this judgment and the commencement of the trial. This view is based on two grounds. The first is the absence of an expressed view to the contrary (i.e. the expression of a positive view of a difference and what that difference would be) in the reports of Dr Furst. The second is that the views expressed by Dr Furst are in the limited compass of assessing possible improvement over a long period of time and not circumscribed to a period of a week or so.
The second argument raised by Mr Mancini was that the compounding effect and stress associated with loss of the home rented by Mr Shamseddini will worsen his already poor mental condition. This will exacerbate an already poor situation. I am not satisfied on the evidence before me that it is possible to state a concluded view about that matter. It was put to me that Mr Shamseddini will assuredly lose his home, he will be evicted by virtue of an Order sought in the Residential Tenancies Tribunal and that following such Order, he will “never” be in a position to obtain housing assistance from the relevant housing authorities at any time in the future. This seems an extraordinary proposition and one which I am not prepared to accept without further evidence. And it takes no account of the possibilities of a review of such a decision and an administrative appeal from such a review.
The third argument raised by Mr Mancini was the proposition, as he put it, of “oath on oath”. In short, Mr Mancini says that his client completely rejects the version of events put forward by the complainants in the matter and that in those circumstances, his client should be treated as any other accused before the Court, under the Bail Act. In giving a consideration of the matters put to me by Mr Mancini on this ground, it is sufficient to say that I accept there is a contest of versions between the parties. In those circumstances, that matter must be put to one side in my considerations.
In my opinion, the principal matter for consideration in this application is the medical evidence. It is accepted that, given the nature of the charges now faced by Mr Shamseddini, he is a prescribed applicant for the purposes of bail and must therefore show special circumstances exist to justify his release on bail.
I have been made aware of Mr Shamseddini’s history involving offences of violence. At the time of these alleged offences, he was subject to bail for an offence of breaching an intervention order. He was also subject to a partially suspended sentence imposed upon him by the Victorian Court on 12 June 2012 for an offence of extortion with a threat to kill. He was released from custody in Victoria only very shortly before he was charged with the current offences before this Court.
Obviously enough, Parliament views very seriously the circumstances of any offence where somebody threatens a person involved in judicial proceedings with the intention of intimidating that person in a way that might influence the outcome of those proceedings. It is in those circumstances that s10A of the Bail Act prescribes a presumption against bail in such cases and the requirement for the demonstration of special circumstances that must exist before bail is contemplated by the Court.
I have also read the depositions signed by Svetlana Ogladkova and Margarita Ogladkova. The allegations within those depositions are extremely serious and in many places they are disturbing. Also, it is possible to identify a repetition of conduct of threats engaged in by Mr Shamseddini in this matter that is similar to if not identical with his conduct in other circumstances, particularly the matters before the Victorian Courts that was dealt with in 2012. I have been informed that Margarita has been so severely affected by the perceived threat of violence from Mr Shamseddini that she has been forced to move interstate.
In my view, the accused has not established the existence of special circumstances in this case. I must apply the test established in Lombardi[6] that “…primary consideration must be whether the applicant’s circumstances place him… outside of the contemplated risk to the community that is generally posed by a member of the applicable class of prescribed applicants. The circumstances of the alleged offending will therefore be very important.” The circumstances of the alleged offending in this case, in my opinion, are extremely serious because of the nature of the disturbing threats allegedly made by the accused and the nature of the conduct of the accused by his pervasive use of electronic communications.
[6] At [25].
I accept that hardship will be suffered by the accused because of his inability to obtain bail but that has been the situation since the accused has been in custody since 2012 and that inconvenience is outweighed by other considerations that in my opinion are far more important.
I am not prepared to order bail in the circumstances of this case. I have had careful regard to all of the material put before me and especially the reports of Dr Raeside and the two reports of Dr Furst. In my opinion, those reports are not inconsistent. Dr Raeside has expressed his opinions from the point of view of somebody in the position of Mr Shamseddini shortly before trial. Dr Furst has expressed his views in respect of a person who requires long term treatment for very long standing conditions, especially post traumatic stress disorder. Dr Furst has expressed the opinion that the post traumatic stress disorder could be better treated if Mr Shamseddini was not incarcerated. That is a presumption that could be made in any event. The important fact is that the trial is only 1 week away. Any treatment that could be given to Mr Shamseddini in the very short period before trial has not been shown, on any of the expert views expressed by the highly qualified medical practitioners, to make any or any sufficient difference to Mr Shamseddini’s position.
In those circumstances I am not satisfied that special circumstances have been made out.
I refuse the application.