R v Tamas - [2017] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v TAMAS
[2017] SASC 12
Reasons for Ruling of The Honourable Justice Blue
14 February 2017
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Bail Review.
Application by Director of Public Prosecutions for review of Magistrate’s decision making serious and organised crime suspect determination but finding special circumstances justified the respondent’s release on home detention bail.
On 27 May 2006, the respondent poured petrol on the front fence of the victim’s house and set it alight. The fence was made of corrugated iron and damage to the value of about $500 was allegedly caused. The defendant was arrested and charged with arson and participating in a criminal activity of a criminal organisation.
On 22 June 2016, on a review of a Magistrate’s decision to grant bail, a Judge of the Supreme Court made a serious and organised crime suspect determination and refused bail.
On 22 December 2016, the serious and organised crime suspect determination lapsed because no trial had commenced, the respondent not yet having been committed for trial.
On 6 February 2017, a Magistrate made a fresh serious and organised crime suspect determination and granted home detention bail, finding that special circumstances justified the respondent’s release on bail.
Held:
1. Observations concerning the serious and organised crime suspect regime (at [23]-[30]).
2. Taking into account the expiration of the original serious and organised crime suspect determination as a result of the prosecuting authorities not having taken steps to expedite committal in the Magistrate’s Court, the relatively low gravity of the offending for offences of the type charged, the time the respondent would otherwise spend in custody until his trial and the respondent’s personal circumstances, the discretion should be exercised against making a fresh serious and organised crime suspect determination (at [43]-[49]).
3. Taking into account the same matters, there would be special circumstances justifying the grant of bail if a fresh serious and organised crime suspect determination were made (at [57]-[60]).
4. The respondent should be released on home detention bail conditions (at [61]).
5. Orders by Magistrate set aside. Respondent released on new home detention bail conditions (at [61]).
Bail Act 1985 (SA) s 3A, s 10A, s 11, s 14(2)(a), s 15A; Criminal Law Consolidation Act 1935 (SA) s 83E, s 85, s 275; District Court Criminal Rules 2014 (SA) r 23, r 25A; Supreme Court Criminal Rules 2014 (SA) s 23, s 25A, referred to.
R v Cekic, R v Dettman, R v Niemann [2014] SASC 132, discussed.
R v Buhlmann [2014] SASC 123, considered.

R v TAMAS
[2017] SASC 12
Bail Review
BLUE J:

This is an application by the Director of Public Prosecutions for review of a Magistrate’s decision whereby the Magistrate made a serious and organised crime suspect determination but released the respondent on home detention bail.
Background
On 27 May 2016, the respondent Daniel Tamas was arrested and charged with two offences allegedly committed on that date. Count 1 is arson, namely that the respondent intentionally by fire damaged a building.[1] Count 2 is that, by damaging the property, he knowingly or recklessly participated in a criminal activity of a criminal organisation.[2] Both counts are major indictable offences.
[1] Criminal Law Consolidation Act 1935 (SA) section 85(1).
[2] Criminal Law Consolidation Act 1935 (SA) section 83E(3).
The prosecution case on count 1 is that the respondent, in company with another person, attended at a house property, poured petrol on the front corrugated iron fence and set it alight, thereby causing damage to the value of about $500. The respondent admits the physical element of the offence but does not admit that the fence comprises a “building” within the meaning of the Criminal Law Consolidation Act 1935 (SA) (the Criminal Law Act) or the mental element of intention to cause damage.
The prosecution case on count 2 is that the victim in May 2016 resigned from a particular crew of the Hells Angels Motorcycle Club; the respondent was a member of that crew; the victim on 19 May 2016 made postings on social media derisory of the leadership of the crew; the crew was angry with the victim as a result; the respondent was appointed Sergeant-at-Arms of the crew on 24 May 2016; and that the respondent committed the act the subject of count 1 for and on behalf of the Club.
The prosecution case is that the incident on 27 May 2016 was preceded by two earlier incidents, namely throwing of a Molotov cocktail at the victim’s house on 20 May and a drive by shooting of the house on 22 May, each of which was performed for and on behalf of the Club, although it is not alleged that the respondent participated or was complicit in those earlier incidents.
If the respondent committed the offence the subject of count 1 for and on behalf of the Club, and particularly if it were committed in the knowledge of the two earlier incidents, this would be an aggravating factor if he is convicted of count 1. In addition, the respondent was on bail and subject of a bond requiring him to be of good behaviour at the time and this would also be an aggravating factor if he is convicted of count 1.
I assume that counts 1 and 2 are alternatives and that count 2 is the primary count with count 1 being an alternative if the prosecution fails to prove the necessary connection between the act and the Club. Even if that is not so, in a practical sense the two counts are alternatives because the respondent would not stand to be sentenced cumulatively for each count given the overlap between them.
On 30 May 2016, the respondent appeared in the Adelaide Magistrates Court and applied for bail, which was opposed. On 3 and 17 June 2016, the Magistrate heard submissions concerning bail, during the course of which the Director applied for a serious and organised crime suspect determination.
On 20 June 2016, the Magistrate declined to make a serious and organised crime suspect determination and granted home detention bail. The matter was adjourned for 10 weeks in accordance with standard Magistrates Court practice to 30 August 2016 for the purpose of the prosecution providing witness declarations.
On 20 June 2016, the Director applied to this Court for a review of the decision under section 15A of the Bail Act 1985 (SA) (the Bail Act). On 22 June 2016, a Judge of this Court made a serious and organised crime suspect determination. That determination had several consequences. The respondent became a prescribed applicant and bail was not to be granted to him unless he established the existence of special circumstances justifying his release on bail. If bail is granted, certain conditions become mandatory and other conditions become prohibited. The proceeding was required to be expedited once it reached the District or Supreme Court for the purpose of the trial being commenced within six months after the making of that determination, ie by 22 December 2016. The determination was to cease to apply after 22 December 2016 if a trial had not commenced unless the higher court determined that it was not reasonably practicable to deal with the matter by that date or exceptional circumstances existed justifying the matter being set down for trial at a later date.
On 22 June 2016, having made the serious and organised crime suspect determination, the Judge refused bail, not being satisfied that there were special circumstances justifying the respondent’s release on bail.
After the making of the serious and organised crime suspect determination, the prosecuting authorities took no steps to request the bringing forward of the adjourned hearing date or that the matter proceed more expeditiously to a committal so that the respondent could be committed for trial in the District Court and the trial could be listed to commence by December 2016.
On 30 August 2016, the matter was mentioned in the Magistrates Court. The Director had posted declarations and evidentiary material to the respondent’s solicitor on 22 August 2016 but foreshadowed further material including e-crime and ballistics. The matter was adjourned to 7 October 2016.
On 7 October 2016, the Director had posted further declarations to the respondent’s solicitor on 6 and 21 September and 5 October 2016 and handed further declarations to the respondent’s solicitor at the hearing. The committal was adjourned due to the late provision of the declarations to 18 November 2016.
On 18 November 2016, the Court was informed that the parties were discussing a possible resolution. The Director had posted to the respondent’s solicitor further declarations on 4 November 2016. The matter was adjourned to 16 December 2016.
On 16 December 2016, the Court was informed that the parties were still discussing a possible resolution. The Director had posted further declarations to the respondent’s solicitor on 18 November 2016 and handed further declarations to the respondent’s solicitor at the hearing. The matter was adjourned to 24 January 2017.
On 22 December 2016, the serious and organised crime suspect determination lapsed due to a trial not having commenced.
The Director posted further declarations to the respondent’s solicitor on 30 December 2016 and 10 January 2017.
On 24 January 2017, the matter was adjourned for committal on 24 February 2017. The respondent applied for bail and a bail enquiry home detention report was requested.
On 6 February 2017, a Magistrate made a fresh serious and organised crime suspect determination and granted home detention bail. The Magistrate concluded that there were special circumstances justifying the respondent’s release on bail.
The review
The Director applies under section 14(2)(a) of the Bail Act for a review of the Magistrate’s decision to grant bail. It is common ground that the review is a hearing de novo.
The respondent contends that the Magistrate erred in making the fresh serious and organised crime suspect determination. Technically, the respondent ought to have made his own application for review of the Magistrate’s decision to make the determination. The Director takes no point based on the respondent’s failure to do so and it is common ground that the question whether a determination ought to be made is to be decided by me on its merits.
The serious and organised crime suspect regime
In 2005, section 10A was inserted into the Bail Act to introduce a special bail and trial regime for “prescribed persons”.[3]
[3] Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA).
In 2012, section 3A was inserted into the Bail Act, section 10A of the Bail Act was amended and section 275 of the Criminal Law Act was amended to provide for the making and expiry of serious and organised crime suspect determinations, to include as prescribed applicants persons subject to serious and organised crime suspect determinations and to provide for expedited trials of serious and organised crime suspects. Part 3B – Offences relating to Criminal Organisations was inserted into the Criminal Law Act by the Statutes Amendment (Serious and Organised Crime) Act 2012 (SA).
A prescribed person is defined by section 10A(2) of the Bail Act to include a “serious and organised crime suspect”, who under section 3A(1) is “a person declared by a bail authority to be a serious and organised crime suspect”. Subsection 3A(1) provides:
A bail authority may determine that a person is a "serious and organised crime suspect” for the purposes of this Act if the bail authority is satisfied, on application by the Crown, that—
(a) the person has been charged with a serious and organised crime offence; and
(b) the person was not, at the time of the alleged offence, a child; and
(c)the grant of bail to the person is likely to cause a potential witness, or other person connected with proceedings for the alleged offence, to reasonably fear for his or her safety.
The making of a serious and organised suspect determination has several consequences. First, pursuant to subsection 10A(1), the normal presumption under section 10 in favour of bail is displaced and reversed in respect of prescribed person. Subsection 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.
Special circumstances are not defined by the Act but bear their ordinary and natural meaning and are words of wide import.[4]
[4] R v Buhlmann [2010] SASC 123 at [21]-[23] per Sulan J.
Secondly, pursuant to subsection 11(2aa), if bail is granted to a prescribed person, certain conditions become mandatory and other bail conditions become prohibited. Subsection 11(2aa) provides:
If the applicant is a serious and organised crime suspect, any grant of bail to the applicant—
(a)     must be made subject to the following conditions:
(i)    a condition that the applicant agree to reside at a specified address and to remain at that place of residence while on bail, not leaving it except for 1 of the following purposes:
(A)    necessary medical or dental treatment for the applicant;
(B)averting or minimising a serious risk of death or injury (whether to the applicant or some other person);
(C)     any other purpose approved by the Chief Executive Officer;
(ii)     a condition that the applicant agree to be fitted with a device of a kind approved by the Chief Executive Officer for the purpose of monitoring compliance with the condition referred to in subparagraph (i) and to comply with all reasonable directions of the Chief Executive Officer in relation to the device;
(iii)    a condition that the applicant agree to not communicate with any person other n specified persons, or persons of a specified class or of a class prescribed by regulation;
(iv)    a condition that the applicant agree to only use for communication purposes, or be in possession of, such telephones, mobile phones, computers or other communication devices as may be specified; and
(b)may not be made subject to the condition referred to in subsection (2)(a)(ia) (but the bail authority may, subject to this section, impose any other condition referred to in subsection (2)).
By contrast, section 11(2)(a)(ia) empowers the grant of bail in ordinary cases subject to a condition that the defendant reside at a specified address and not leave it except for remunerated employment or any other purpose approved by a community corrections officer as well as for necessary medical or dental treatment or averting or minimising serious risk of death or injury. In respect of a prescribed applicant, section 11(2aa)(b) prohibits a condition permitting the defendant to leave for remunerated employment. Although section 11(2aa)(i)(C) empowers the Chief Executive Officer to approve a prescribed applicant leaving a specified address for another purpose, given the prohibition on bail conditions permitting a prescribed applicant to leave for remunerated employment and the need for approval by the Chief Executive Officer as opposed to a community corrections officer, it may be expected that it would be unlikely that approval to attend full-time or regular employment would be granted in respect of a prescribed applicant.
Thirdly, pursuant to subsection 275(3) of the Criminal Law Act and rules 23 and 25A of the District and Supreme Court Criminal Rules 2014 (SA), the proceeding is required to be expedited once it reaches the District or Supreme Court for the purpose of the trial being commenced within six months after the making of that determination. Subsection 275(3) of the Criminal Law Act provides:
The Supreme Court and the District Court must make rules for expediting prescribed proceedings and, if there has been a determination by a bail authority under the Bail Act 1985 that the defendant in such proceedings is a serious and organised crime suspect, the trial of the matter must be commenced within the period of 6 months after the making of that determination, unless the determination ceases to apply or the Court determines—
(a) on its own initiative, that it is not reasonably practicable for the Court to deal with the matter within that period; or
(b) on application by the Director of Public Prosecutions or the defendant, that exceptional circumstances exist that justify the matter being set down for trial at a later date.
Pursuant to subsection 3A(2) of the Bail Act and subsection 275(3) of the Criminal Law Act, a determination ceases to apply if the trial has not commenced within six months of the determination unless the higher court determines that it is not reasonably practicable to deal with the matter by that date or exceptional circumstances exist justifying the matter being set down for trial at a later date. Subsection 3A(2) of the Act provides:
A determination by a bail authority that a person taken into custody on a charge of an offence is a serious and organised crime suspect ceases to apply after 6 months if, at that time—
(a)the person has not been tried, or is not on trial, for the offence; and
(b)the trial of the offence is not subject to a determination of the Supreme Court or the District Court under section 275(3) of the Criminal Law Consolidation Act 1935.
The making of a serious and organised crime suspect determination
I first consider whether a fresh serious and organised crime suspect determination ought to be made.
A court’s power to make a serious and organised crime suspect determination is only enlivened if the court is satisfied of each of the three prerequisites contained in paragraphs (a) to (c) of subsection 3A(1). The court then has a discretion whether to make the determination.
The first two prerequisites are satisfied because a contravention of section 83E falls within Part 3B of the Criminal Law Act and an offence against Part 3B is a serious and organised crime offence within the meaning of section 5 of the Criminal Law Act and section 3 of the Bail Act and because the respondent was aged 29 at the time of the alleged offence.
There is a real question whether the grant of bail is likely to cause a person connected with proceedings for the alleged offence to reasonably fear for his or her safety. Section 3A(1)(c) refers to “a potential witness, or other person connected with proceedings for the alleged offence”. It is clear that the Director does not intend to call the victim as a witness at the trial but it is equally clear that the victim is a “person connected with proceedings for the alleged offence” and his fears are therefore to be taken into account in determining whether the third prerequisite is satisfied. The Director does not suggest that there is any other person whose fears are to be taken into account under that limb.
The victim informed a police officer on 27 May 2016 after his front fence was burnt that he did not wish to provide a statement because, as he had now been attacked three times, he was afraid that when they get out of jail they would come after him. I infer that at and shortly after the time of the three alleged incidents in May 2016 the grant of bail was likely to cause the victim reasonably to fear for his safety. The question is whether such an inference should be drawn in February 2017.
On the evening of 15 October 2016, petrol was lit in the vicinity of the victim’s house, resulting in a fire that caused approximately $50,000 damage. The victim was not at the premises at the time and has not returned. No further evidence was adduced concerning contact between the police and the victim. I infer that the victim continues to fear that he may be attacked by the crew of the Club, but the issue is whether he continues to fear that he may be attacked as a result of the respondent being released from custody on home detention bail.

No evidence was adduced by the Director that the police have been informed by the victim that he now fears for his safety if the respondent is released on bail. The fact that the incident on 15 October 2016 occurred while the respondent was in custody illustrates that the victim’s fear for his safety may well be independent of whether the respondent is in custody or on home detention bail. It is obvious that, if they are aware of the victim’s whereabouts, the mere fact that the respondent is in custody would not prevent members of the club taking action against the victim. In the absence of direct evidence about the victim’s current state of mind, as opposed to his state of mind in May 2016, establishment of the third prerequisite necessarily depends on drawing an inference as to the victim’s state of mind.
It is not necessary to decide whether the requisite inference should be drawn. This is because, assuming that this prerequisite is satisfied, I would exercise the discretion not to make a determination.
The evident intention of section 3A of the Bail Act and subsection 275(3) of the Criminal Law Act is that it is a concomitant of the deprivation of the presumption in favour of bail in respect of a serious and organised crime suspect that when bail is refused such a suspect should not be kept in custody awaiting trial for more than six months from the date of the serious and organised crime suspect determination. As Kelly J said in R v Cekic; R v Dettman; R v Niemann:[5]
It is apparent from the statutory scheme enacted by the Parliament with regard to serious and organised crime suspects that the Parliament intended the six month time limit on all declarations made to ameliorate the harsh consequences of the making of a declaration under s 3A of the Bail Act.
…
… it was never the intention that prescribed applicants should be subject to an indeterminate period of detention or even detention for a very long time.[6]
[5] [2014] SASC 132.
[6] At [45] and [47].
While there is no doubt that a court has power to make successive serious and organised crime suspect determinations, the context in which a second application for a determination is to be considered is very different from that in which an original application is to be considered. The fact that a serious and organised crime suspect has already been in custody for six months awaiting trial and faces the prospect of being in custody for a further six months awaiting trial is a factor weighing against the making of a second determination.
On an original application for a determination, if the three prerequisites are satisfied, it may be expected that the discretion will usually be exercised in favour of making the determination. Conversely, when a previous determination has expired because the prosecuting authorities have not taken steps to facilitate the matter coming to trial within six months of the determination, there can be no such expectation.
When a second determination is sought after the expiry of a previous determination, it will be important to consider why the matter has not proceeded to trial within six months of the original determination. If this is due entirely to the conduct of the defendant, the fact that a second determination is sought will have much less weight than if this is due to the conduct of the prosecuting authorities or the court.
The original determination was made in June 2016 and was due to lapse in December 2016 if the respondent’s trial had not commenced. In these circumstances, the prosecuting authorities were required to take all reasonable steps to attempt to ensure that the matter reached trial by December 2016. This in turn required the accelerated preparation of declarations and service of them on the respondent so that the respondent could be committed for trial within two months, or at the very most three months, and leave time for the District Court to list the matter for an urgent trial.
By contrast, the matter proceeded at the ordinary pace in the Magistrates Court and has not even yet reached committal more than eight months after the respondent was remanded in custody and almost eight months after the making of the serious and organised crime suspect determination. Upon the making of that determination on 22 June 2016, no steps were taken by the Director to bring forward the next hearing date in the Magistrates Court scheduled for 30 August 2016. No declarations were served on the respondent until after 22 August 2016 (being posted on that date), which was two months after the making of the declaration and almost three months after the respondent was remanded in custody. The matter could not proceed to committal on 30 August 2016 because the Court was informed that further declarations were to be prepared, including e-crime and ballistics, and the matter was adjourned to 7 October 2016. The matter could not proceed to committal on that date because further declarations had only just been provided to the respondent and the matter was adjourned to 18 November 2016. Even if the respondent had been committed for trial on that date, it would obviously not have been listed for trial to commence in the District Court before 22 December 2016.
>From 18 November 2016, the matter was adjourned because the parties were attempting to negotiate a resolution. At least from this point (if not earlier), it does not appear that the respondent was seeking expedition of the hearing of the committal. However, this did not relieve the prosecuting authorities of the obligation to attempt to proceed to committal as expeditiously as possible because it had been on the application of the Director that the serious and organised crime suspect determination had been made and the obligation remained on the Director to take all reasonable steps to facilitate a trial within six months of that determination.
The slow progress of the matter in the Magistrates Court compared to the expedited process required if the matter was to proceed to trial by December 2016 is the responsibility of the prosecuting authorities by not expediting the preparation of declarations, service of them on the respondent and requesting the Magistrates Court to accelerate listing of the matter for committal. It may well be that both the police and the Director’s office are under-resourced and I do not suggest that blame is to be laid at their door for the slow progress of the matter. However, given the terms of the legislation, it is a whole of government responsibility to ensure that the police and the Director’s office are in a position to and do expedite the committal process when a serious and organised crime suspect determination has been made by a court.
The mere facts that the original serious and organised crime suspect determination expired without a trial having commenced and that this is the responsibility of the prosecuting authorities does not entail that the discretion should be exercised against making a further serious and organised crime suspect determination. It is necessary to take into account all relevant factors, including the seriousness of the offence, the likely penalty that would be imposed if the defendant is convicted and the personal circumstances of the respondent. All of these factors are also relevant to the question whether, assuming the continuation of the fresh serious and organised crime suspect determination, there are special circumstances justifying the grant of bail.
For the reasons given below, if the fresh serious and organised crime suspect determination continues, there are special circumstances justifying the grant of bail. In addition, there is no good reason why, if home detention bail is granted, it should not be on condition permitting the respondent to leave his residence for remunerated employment provided that his community corrections officer approves his destination and other details of his departure. There is no good reason why the respondent should be subject to the restricted bail conditions mandated by a continuing serious and organised crime suspect declaration.
Taking into account the circumstances considered above and below, it is appropriate that I exercise my discretion not to make a second serious and organised crime suspect determination.
The existence of special circumstances
I turn to consider whether, assuming that the fresh serious and organised crime suspect determination were to continue, there are special circumstances justifying the respondent’s release on bail.
Assuming committal on 24 February 2017 to the District Court, the matter ought under section 275(3) of the Criminal Law Act to proceed to trial within six months, ie by 6 August 2017. It is common ground that the matter is unlikely to reach trial until close to the expiry of the six month period.
The maximum penalty for arson is imprisonment for life and for participating in a criminal activity of a criminal organisation is imprisonment for 20 years. The gravity of the offending the subject of count 1 (absent any aggravating factor of its having been committed for and on behalf of the Club) is low in the scale of arson cases. The subject of the arson was a corrugated iron fence and the prosecution does not suggest that there was a real risk that the fire would spread to the house or elsewhere. The damage was limited to the value of approximately $500. The offending the subject of count 2 is necessarily more serious but the offending still must be considered in the context of the limited damage prospectively and actually caused by lighting petrol on a corrugated iron fence.
It is difficult at this stage to assess a likely penalty if the respondent is convicted of count 1 or count 2, but on any view there is a very real prospect that, assuming imposition of a custodial sentence of imprisonment, the non-parole period would be less than the period of at least 15 months that the respondent would have spent in custody if bail is refused.
The respondent is 30 years old and if not in custody would be living with his wife and their three young children. He does not have any serious or relevant prior convictions. At the time of his arrest, he was conducting via his own company a refrigeration mechanic business, which employed him, his wife and two apprentices. He is a qualified refrigeration mechanic, having completed a four year apprenticeship by the age of 22. Before establishing his own business in 2012, he was employed by an established air-conditioning business and his company continued to perform work for that business in the capacity of a subcontractor after he established his own business. That established air-conditioning business has provided a written statement that he was a valued employee and subcontractor that provided an efficient service whilst maintaining good quality on sometimes complex projects and that it would be happy for him to bid for and if successful undertake future subcontract work if bail is granted. In addition, a refrigeration mechanic with whom the respondent worked at both businesses has now established his own company and has provided a written statement that he is willing to work with or employ the respondent in his business.
The respondent and his wife own a vacant block of land. This land is subject to a mortgage and there is a risk that they will lose it if respondent is not able to fund instalment payments by working.
The respondent’s wife and their three young children were financially dependent on him prior to his arrest and presumably are now dependent on government benefits.
In considering whether special circumstances are established, it is relevant to take into account the fact that the original serious and organised crime suspect determination has expired and the matter did not reach trial within the requisite six months during the operation of that determination.[7] It is relevant to take into account that this state of affairs is the result of the prosecuting authorities not having taken sufficient steps to expedite the preparation and service of declarations and an expedited committal hearing. These matters in themselves do not result in a conclusion that special circumstances justify the grant of bail, but they are important matters to be taken into account.
[7] R v Cekic; R v Dettman; R v Niemann [2014] SASC 132 at [43]-[47] per Kelly J.
It is also relevant to take into account that the degree of fear by the victim if the respondent were granted bail that existed in May-June 2016 is likely to have diminished by February 2017 albeit I assume for present purposes that the victim still has a degree of fear satisfying the third prerequisite for making a serious and organised crime suspect determination.
It is not suggested by the Director that there is a risk that the respondent will abscond if released on bail. The affirmative ground on which the Director opposes bail is the risk that the respondent will offend against the victim. My assessment is that the increased risk that a criminal offence will be committed against the victim if the respondent is released on home detention bail conditions compared to the pre-existing risk to the victim while the respondent remains in custody is relatively small.
Taking into account the respondent’s lack of any relevant prior convictions at the age of 30, the fact that his wife and three young children are dependent on him, his prospects of obtaining remunerative employment, the relatively low gravity of the offending compared to other offending involving the same crimes, the prospect that if convicted he may otherwise spend more time in custody than if he had been convicted and sentenced in December 2016, my assessment of the risk to the victim and the fact that the prosecuting authorities failed to take sufficient steps to expedite the preparation and service of declarations and an expedited committal hearing with a view to a trial being listed by December 2016, special circumstances justify the grant of bail on home detention conditions.
Conditions of bail
I will hear the parties as to the appropriate conditions of home detention bail. In broad terms they will be the conditions fixed by the Magistrate on 6 February 2017 but I will make some variations. The conditions will include conditions that the respondent:
·reside at his home address to remain at that place of residence while on bail, not leaving it except for one of the following purposes:
(A)    necessary medical or dental treatment for the applicant; or
(B)    averting or minimising a serious risk of death or injury (whether the respondent or some other person); or
(C)    remunerated employment on terms and conditions and in accordance with the specific prior approval of a community corrections officer; or
(D)    any other purpose approved by a community corrections officer;
·be fitted with a device of a kind approved by the Chief Executive Officer for the purpose of monitoring compliance with his bail conditions and comply with all reasonable directions of a community corrections officer in relation to the device;
·not communicate with any person other than persons or persons of a class specified by a community corrections officer;
·only use for communication purposes, or be in possession of, such telephones, mobile phones, computers or other communication devices as may be specified by a community corrections officer.