R v SUMNER - [2020] SASC 231

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SUMNER
[2020] SASC 231
Judgment of The Honourable Justice Bleby
4 December 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of bail.
The applicant is charged with 8 counts of aggravated assault against a child or spouse, 3 counts of choke, suffocate or strangle a person in a domestic setting, 1 count of aggravated threaten to kill or endanger life and 1 count of aggravated assault that causes harm. The offences are alleged to have been committed between 19 September 2019 and 9 May 2020 at Campbelltown.
On 22 May 2020, the applicant was granted bail in the Adelaide Magistrates Court. On 25 May 2020, the applicant appeared before Stanley J on an application by the Director of Public Prosecutions to review the bail decision. Justice Stanley revoked bail. An application for bail before the Chief Magistrate on 1 September 2020 was refused. This review application relates to a further refusal to grant bail on 11 November 2020 by Magistrate Sheppard.
The applicant is a prescribed applicant under s 10A of the Bail Act 1985 (SA). The applicant submits that there is a combination of factors which, when taken together, amount to special circumstances for the purpose of s 10A.
In particular, the applicant contends that, by virtue of the complainants’ moving to Queensland, the application is fundamentally altered from when Stanley J revoked bail in May 2020. The respondent submits that the court must have regard to the need that the victim may have, or perceive, for physical protection from the applicant pursuant to s 10(4) of the Bail Act 1985 (SA), and that to the extent that the move was provoked by fear of the applicant, there is an unsettling aspect to a process of reasoning that would allow such an initiative by the complainant to be taken to improve the prospect of special circumstances such as might then support the granting of bail.
Held, per Bleby J, granting the application for review:
1. The complainants’ move to Queensland reduces the risks contemplated by s 10(1)(b) and s 10A by such an extent that the combination of the circumstances now relied upon is capable of amounting to special circumstances justifying the applicant’s release on bail.
2. Bail is granted under strict home detention conditions.
Bail Act 1985 (SA) ss 10(1)(a)-(b), 10(4), 10A; Criminal Law Consolidation Act 1935 (SA) s 20A; Intervention Orders (Prevention of Abuse) Act 2009 (SA), referred to.
R v Lombardi (2013) 115 SASR 577 ; R v Hayes [2018] SASC 114; R v Webb [2019] SASC 8, considered.

R v SUMNER
[2020] SASC 231
Criminal: Bail Review

BLEBY J: This is an application for review of a refusal of bail by a Magistrate on 11 November 2020. On that date, Magistrate Sheppard refused bail on the basis that there were no relevant special circumstances to justify a release on home detention bail and on account of the seriousness of the conduct.
The applicant is charged with the offences of aggravated assault against a child or spouse (x8), choke, suffocate or strangle a person in a domestic setting (x3), threaten to kill or endanger life (aggravated offence) and aggravated assault that causes harm. The offences are alleged to have been committed between 19 September 2019 and 9 May 2020 at Campbelltown.
The allegations are serious. They relate to the applicant’s former domestic partner, JF, and the two-year-old daughter of the applicant and JF.
The applicant was originally charged in May 2020 with two counts of aggravated assault, two counts of aggravated threats and one count of aggravated choking. One of each of the counts of aggravated assault and aggravated threats related to the daughter. It is alleged that the applicant picked the daughter up and threw her onto a bed and then when she continued to cry, he held a knife to her face, shouting at her, ‘shut the fuck up and go to sleep or I will fucking kill you’.
The count of aggravated choking relates to an allegation that the accused picked JF up by her neck and held her against a wall with both feet off the floor, yelling and screaming at her. She could not breathe and could feel her eyes bulging from her head. It is alleged the applicant continued to increase his grip around her neck before throwing her onto a mattress. Later in the morning, it is alleged that he used a pole from a vacuum cleaner against her neck, pinning her against a cupboard for 30 seconds until she thought she would pass out.
Count 4 alleges that the applicant kicked JF, picked her up by her hair and threw her back down onto a mattress, and used a vacuum cleaner pole to hit her about five times. It is also alleged that he punched her in the face, grabbed her face, squeezed her cheeks and spat in her mouth.
Count 5 relates to one of a number of occasions where it is alleged that the accused threatened JF with a knife by waving it in her face, pretending to stab her and saying, ‘I’m going to fucking kill you’. On one occasion, JF thought she would be stabbed and so she grabbed the knife, resulting in her hand being cut. The accused would also grab the steering wheel of the car when driving and say, ‘I am going to kill us all’. The accused was arrested on 10 May 2020 and served with an intervention order.
In August 2020, JF gave a further statement to police and made further allegations. Suffice to say that these allegations are of further incidents of choking, assaults and threats of a similar character to those previously alleged. On 14 September 2020, a new information was filed containing a total of 13 counts, three relating to the daughter and 10 relating to JF.
It is necessary to go back to the history of this matter prior to that new information being laid. On 22 May 2020, the applicant appeared ex custody in the Adelaide Magistrates Court. The Magistrate granted bail. On 25 May 2020, the applicant appeared ex custody before Stanley J on an application by the Director of Pubic Prosecutions to review the bail decision. Justice Stanley revoked bail.
The applicant made a further application for bail which was heard before the Chief Magistrate on 1 September 2020. Bail was refused. Then on 11 November 2020, the applicant appeared before Magistrate Sheppard and entered not guilty pleas. Magistrate Sheppard refused the application for bail. It is that refusal that is the subject of this application for review.
The applicant is a prescribed applicant for the purposes of s 10A of the Bail Act 1985 (SA) (Bail Act). The consequence of this is that bail is not to be granted unless he establishes the existence of special circumstances justifying his release on bail. I am also, of course, required to have regard to the matters specified by s 10 of the Bail Act, including the gravity of the alleged offences (s 10(1)(a)) and the need that the victim may have, or perceive, for physical protection from the applicant (s 10(4)).
Counsel for the applicant, Mr Ey, submitted that there was a combination of factors which, when taken together, amounted to special circumstances for the purpose of s 10A. The applicant is 23 years old. He is a young man. He is Aboriginal. This Court has on a number of occasions emphasised that the Criminal Courts should have regard to the Australian Law Reform Commissions report, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander People. This has reported to the effect that Aboriginal and Torres Strait Islander people have continued to be over‑represented in the remand population by a factor of 11.[1] That report noted that bail and remand processes are significant contributors to the unnecessary imprisonment of Aboriginal and Torres Strait Islander people. As this Court has also observed, the concerns and conclusions expressed in that report ‘serve as an important reminder to ensure that cultural bias is avoided’.[2]
[1] R v Hayes [2018] SASC 114 at [10] (Kelly J).
[2] R v Webb [2019] SASC 8 at [28] (Hinton J).
The applicant has been in custody since 10 May 2020. He has not been imprisoned before. His only previous offending was a basic offence of assault, which resulted in no conviction and a bond to be of good behaviour for 12 months. That was in July 2016. Having said that, the index offending is alleged to have occurred against a background of years of sustained domestic violence against JF and the daughter.
It is also the case that the trial is unlikely to take place for at least a further 12 months.
Mr Ey emphasised that the applicant’s lack of criminal history meant that he has never had the chance to demonstrate his ability to comply with strict monitoring conditions. He also identified that the applicant’s father is prepared to be a guarantor in the amount of $2000. This is unquestionably a practical demonstration of support for his son.
There is one critical factor that Mr Ey relies upon, that in his submission fundamentally alters the landscape from when Stanley J revoked bail in May 2020. This is that JF and the two children of the former domestic partnership have now moved to Queensland. The applicant does not know their address and does not have any contact details for them. All contact between them has ceased.
Mr Ey initially submitted that by reason of the complainants’ move to Queensland, the risk to them was nil. He sensibly qualified that submission to say that it was next to nil, maintaining that it was very, very low. He pointed out that the prospect of the applicant being able to get to Queensland in circumstances where he was living with his parents on home detention conditions and with electronic monitoring would be low, as the alarm would necessarily be raised practically immediately.
Mr Ey accepted that this would not prevent the applicant attempting to make telephone contact with the complainant, were he so minded. That the applicant has made threats to the complainant over the phone forms part of the suite of allegations. Nevertheless, as I have said, the submission was also made that the applicant does not know how to contact the complainant.
Of all the matters that are put forward in support of an argument in favour of the existence of special circumstances, the only one that is materially different from the position when Stanley J revoked bail is that the complainant and the children have now moved to Queensland. On the previous occasion, Stanley J said:[3]
For all the matters that have been put in favour of a grant of bail, I am not satisfied that special circumstances exist in this matter. The offending is of a particular gravity which no doubt has aroused terrible anxiety and great apprehension on the part of [JF], not only for herself, but for her children. The physical distance between the proposed bail address and wherever she is now residing or might reside in the future does not, in my view, take this case into the category of a special circumstance which would permit the Court to consider a grant of bail.
[3] Transcript 25 May 2020, 32.21.
His Honour’s reference to where the complainants might reside in the future does not necessarily, to my contemplation, envisage their move to Queensland. I take his Honour to be referring at most to any address where the complainant might be living in South Australia.
I am not of course bound by Stanley J’s conclusions, but I have had regard to them. The real question in this case is whether the fact of the complainants’ move to Queensland has altered the position such that it could be said that special circumstances exist in this matter.
Ms Schell, counsel for the Director, accepted that this was the key issue. She submitted that the basis for the complainants’ move was fear for their safety. There was no evidence before me as to this but for present purposes I am prepared to assume, given the requirements of s 10(4) of the Bail Act, that the complainants may well perceive the need for physical protection from the applicant. Ms Schell submitted that to the extent that the move was provoked by such fears, there is an unsettling aspect to a process of reasoning that would allow such an initiative by the complainant to be taken to improve the prospect of special circumstances such as might then support the granting of bail.
I understand the point being made but I think it is answered in this way. To the extent that it could be concluded that the move to Queensland was provoked by the complainants’ fears of the applicant, the fact of the move would be evidence enough of the fears contemplated in s 10(4). However, the consequence of that move is to be assessed as any other fact is to be assessed. As Ms Schell rightly accepted, in the circumstances of this case, where the allegations all concern this domestic relationship, the risk to JF and the children has been significantly reduced by the fact of the move.
It is necessary to say something further about risk. The contribution that the complainant and the children moving to Queensland makes to the question of the existence of special circumstances is also a feature of the requirement under s 10(1)(b) of the Bail Act. This requires the bail authority to have regard to the likelihood (if any) that the applicant would, if released, offend again or interfere with evidence, intimidate or suborn witnesses or commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
A refusal to grant bail, having regard to those matters, necessarily has a preventative aspect. It builds in a precautionary response to an application for bail, the nature and strength of which depend on whether s 10A is engaged or not. Section 10A is engaged in this case, by reason of the allegations of choking in the context of a domestic partnership, contrary to s 20A of the Criminal Law Consolidation Act 1935. To that end, a critical question is whether JF’s move to Queensland reduces the risks, contemplated by s 10(1)(b) and s 10A, by such an extent that the combination of circumstances now relied upon can be said to amount to special circumstances justifying the applicant’s release on bail.
This approach seems to me to be consistent with the observation of Kourakis CJ in R v Lombardi, that ‘the discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption’.[4]
[4] (2013) 115 SASR 577 at [24].
In the circumstances of JF and the children moving to Queensland, I accept that the prospect that the applicant would, if released, abscond, offend again, intimidate or suborn JF as a witness or commit a breach of the intervention order to which he is subject, is low. I do not consider that risk to be nil. Further, while the likelihood of such an occurrence is low, the gravity of such an occurrence, should it come to pass, would be high.
In my consideration of whether special circumstances exist, I then bring into consideration the fact that the applicant has been in custody since 10 May 2020 and is unlikely to face trial for at least another 12 months. I take into account his largely unblemished prior record, but note that the allegations occur against a background of allegations of some years of domestic violence within this relationship.
I further take into account that home detention bail is proposed for the family home where the applicant would be resident with his father and mother, cousin and sister, which is where he resided prior to entering into the domestic relationship with JF. I take into account his youth, the fact of his aboriginality and the fact that his father, with whom he is to be resident, is prepared to offer a guarantee of $2000.
Counsel for the Director alluded to the existence of custody proceedings between JF and the applicant’s parents. I was given no information, let alone evidence, about such proceedings at all. I cannot see how I can bring that (mere) suggestion into my consideration. Even if such proceedings are on foot, if the applicant were bailed to reside at his parents’ home, that fact would, I expect, have a considerable impact on those proceedings.
Not without some hesitation, I am prepared to conclude that the combination of the matters I have identified is capable of amounting to special circumstances for the purposes of s 10A. I make it clear the fundamental difference now is the fact of the complainants’ move to Queensland. I combine this with all of the other matters, and in particular the support from the applicant’s father, the proposal of monitored, home detention bail in the applicant’s family home and the applicant’s lack of offending history outside of this relationship. I am prepared to conclude that the combination of these factors is capable of amounting to special circumstances justifying the applicant’s release on bail.
It is, however, necessary that I give primary consideration to the need that JF and the children may have or perceive for physical protection from the applicant. It is not a difficult conclusion to reach that they may indeed perceive a great need for physical protection from the applicant. Having regard to that need, had the complainants not moved to Queensland I would have reached the same conclusion as that which Stanley J reached in May of this year. However, I have reached the view that that need can be met by the distance that the complainant has put between herself and the children and the applicant, and the strict monitored home detention conditions that I propose to impose.
The allegations are extremely serious and I take full account of that fact. The seriousness of the allegations is intertwined with the need for the risks of the applicant being released on bail to be properly addressed. While it is not an easy conclusion, on balance I am prepared to grant the application for review and order that the applicant be released on bail on the following conditions:
1.Immediately upon release, I will travel to [address redacted] for home detention and upon arrival, contact the Home Detention Unit of the Department for Correctional Services by telephoning 1300 796 199.
2.I will not leave the State for any reason without lawful permission under the Bail Act 1985 (SA).
3.I will not possess a firearm, ammunition or any part of a firearm.
4.I will submit to tests (including testing without notice) for gunshot residue as may be reasonably required.
5.I will be subject to home detention and obey all the lawful directions of any supervisor designated to supervise home detention.
6.I will wear an electronic transmitter and comply with the rules of electronic monitoring, including the requirement to fully charge the transmitter daily for the term of this Bail Agreement.
7.I will remain at [address redacted] throughout the period of home detention bail and must not leave that address at any time (except for the purpose of undertaking employment deemed suitable by my Community Corrections Officer) unless I have the prior permission of any assigned Community Corrections Officer to be absent for a particular purpose, or to avert the risk of injury or death to myself or others, or to obtain urgent essential medical treatment.
8.I will provide and maintain in operating condition an active mobile telephone service with an appropriate mobile communication device and give the contact details to the Department for Correctional Services (DCS) so that they may use it to communicate with me at all times whilst on electronic monitored bail.
9.I will not consume any alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and I will submit to drug and alcohol testing as directed by a Community Corrections Officer and sign all required forms and comply with the requirements of the testing procedures.
10.I authorise the Department for Correctional Services to reveal that I am subject to Home Detention Bail to any person it believes reasonably necessary for the purposes of confirming employment and compliance with the conditions of this Bail Agreement.
11.If, in the case of an emergency, I obtain permission from the Community Corrections Officer assigned to supervise me to reside at a new address, I must make an application to the Court for a variation of my bail conditions within two working days, but I can reside at that address until that application for variation is considered by the Court. The conditions of this Bail Agreement will continue to apply as if the new address was specified in them.
12.I will present myself at the front door of my nominated address at the request of the Community Corrections Officer assigned to supervise me or his or her delegate, and respond to any call at a telephone at that address at any time, unless absent in accordance with these conditions.
13.I will not be in the vicinity of, nor contact in any way directly or indirectly JF or AS.
14.I will obtain a guarantee in the sum of $2000.00. Guarantor: Terry SUMNER.