R v Tillman

[2008] NSWSC 1227

CITATION:	R v Tillman [2008] NSWSC 1227
HEARING DATE(S):	31 October 2008
JUDGMENT DATE :	31 October 2008
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	31 October 2008
DECISION:	Conditional bail granted.
CATCHWORDS:	BAIL - charges of sexual assault and related matters - alleged offences in 1995 - applicant discharged at committal proceedings in 1998 - applicant in custody between 1997 and 2008 - complainant revives complaint to police in April 2007 - applicant charged in June 2008 - applicant subject to civil detention under Crimes (Serious Sex Offenders) Act 2006 from May 2007 to October 2008 - application in October 2008 by State of New South Wales for extended supervision order - interim supervision order made pending final hearing - s.9D Bail Act 1978 - exceptional circumstances - applicant subject to stringent conditions under interim supervision order - conditional bail granted
LEGISLATION CITED:	Crimes Act 1900 Bail Act 1978 Crimes (Serious Sex Offenders) Act 2006
CATEGORY:	Principal judgment
CASES CITED:	R v Young [2006] NSWSC 1499 R v Jacobs [2008] NSWSC 417
PARTIES:	Kenneth David Tillman (Applicant) Regina (Respondent)
FILE NUMBER(S):	SC 2008/17024
COUNSEL:	Mr M Johnston (Applicant) Ms S Maxwell (Solicitor) (Respondent)
SOLICITORS:	Nyman Gibson Stewart (Applicant) Director of Public Prosectuions (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

31 October 2008

2008/17024 Regina v Kenneth Davidson Tillman

NON-PUBLICATION ORDER CONCERNING THE NAME OF THE COMPLAINANT AND ANY INFORMATION WHICH MAY DIRECTLY OR INDIRECTLY IDENTIFY THE COMPLAINANT

JUDGMENT (on application for bail)

1 JOHNSON J: This is an application for bail by Kenneth Davidson Tillman, who is next to appear at the Junee Local Court on 11 November 2008 with respect to a number of serious sexual assault charges. The offences are alleged to have occurred in August 1995. The applicant is charged with three counts of aggravated sexual assault upon a victim, aged under sixteen years, being offences under s.61J Crimes Act 1900. In addition, there are three charges of assault occasioning actual bodily harm which also arise from the events said to have occurred in 1995.

2 The application for bail is opposed by the Crown.

3 It is common ground that s.9D Bail Act 1978 applies to this application. The applicant is charged with serious personal violence offences and is, within the meaning of the Act, a repeat offender because of earlier convictions. As a result, the Court is not to grant bail to the applicant unless the Court is satisfied that exceptional circumstances justify the grant of bail.

4 The charges brought against the applicant relate to events in 1995. [EDITED - NON-PUBLICATION ORDER]. The charges involve allegations of sexual intercourse in the form of fellatio and digital penetration. The applicant was charged in 1997 with these offences. In June 1998, the applicant was discharged following committal proceedings. The complainant did not attend Court in 1998.

5 In 2007, the complainant learned that the applicant was to be released from custody for sentences being served on other matters, and she contacted police in April 2007. Thereafter, on 10 June 2008, police attended the correctional facility at Silverwater and arrested and charged the applicant with these matters. As I have said, he is next to appear at Junee Local Court in 11 November 2008.

6 The applicant is forty-six years of age. He has a criminal history, including sexual assault convictions in 1990 and 1994, for which terms of imprisonment were imposed. He was sentenced to imprisonment in 1998 for sexual assault offences which occurred in 1996 and, thus, post dated the alleged offences presently before the Court.

7 The applicant served his sentence of imprisonment imposed in 1998. However, in 2007 he was the subject of orders made under the Crimes (Serious Sex Offenders) Act 2006. The effect of those orders was that from 18 June 2007 until today, 31 October 2008, the applicant has been detained in a prison as a result of a continuing detention order under that legislation.

8 On Monday, this week, 27 October 2008, an application came before me in which the State of New South Wales sought an interim supervision order under the Crimes (Serious Sex Offenders) Act 2006. In those proceedings, the State of New South Wales seeks as final relief an extended supervision order for a period of five years with respect to the applicant. On 27 October 2008, I made an interim supervision order to operate for twenty-eight days from today, subject to thirty-seven conditions.

9 The hearing of the claim for final relief by the State of New South Wales, namely, an extended supervision order, has been fixed to be heard by a Judge of this Court on 1 and 2 December 2008. The interim supervision order made by me on 27 October 2008 operates by force of law for twenty-eight days only. However, the matter will be mentioned before me on 25 November 2008 for the purpose of the interim supervision order being continued to at least 1 December 2008, when the matter comes before a Judge for hearing.

10 I approach the present bail application upon the basis that, if bail was granted to the applicant today (and irrespective of any bail conditions which might be fixed), the applicant would be subject to stringent conditions, confining his movements, restricting his ability to travel, requiring him to wear electronic monitoring equipment, and to comply in a number of other respects with the directions of the relevant departmental supervising officer of the Department of Corrective Services, who will be an officer from the Community Compliance Group of that Department, with a specialised function of administering orders under the Crimes (Serious Sex Offenders) Act 2006.

11 It is necessary, at this point, to turn to the threshold question which needs to be answered on this application. The law governing the current application is, of course, the Bail Act 1978. The provisions of the Crimes (Serious Sex Offenders) Act 2006 are part of the necessary background to this application, but the law which I must apply here is the law of bail in this State.

12 Has the applicant demonstrated exceptional circumstances which justify the grant of bail in this case? There is, of course, no presumption in favour of bail. Indeed, the effect of s.9D is that bail will not be granted unless the Court is satisfied of the existence of exceptional circumstances.

13 In support of the application, counsel for the applicant, Mr Johnston, has referred to two decisions of the Court on bail applications where the concept of “exceptional circumstances” has been considered. They are a decision of mine in R v Young [2006] NSWSC 1499 and the decision of Rothman J in R v Jacobs [2008] NSWSC 417. As those cases make clear, the concept of exceptional circumstances involves a case-by-case examination. The law does not prohibit the grant of bail in a case such as this. It requires, however, a stringent test to be satisfied.

14 In R v Young at [20], I observed that exceptional circumstances may be found in a case by the coincidence of a number of features. The concept of exceptional circumstances involves a consideration as to whether there are circumstances in a particular case which can be described as exceptional, in the sense of unusual or extraordinary. The concept of “exceptional circumstances” must, of course, be considered in its statutory context: R v Young at [18]-[19]; R v Jacobs at [7]-[11].

15 The Court is not considering the terms of s.32 Bail Act 1978 alone at this point. The Court is considering all factors which bear upon the application (including s.32 factors) to determine whether a positive answer can be given to the question as to whether exceptional circumstances have been demonstrated: R v Young at [20]; R v Jacobs at [11].

16 It would be apparent from what I have said so far that this case has, at the least, a number of unusual features. Counsel for the applicant submits that a number of factors in this case, viewed cumulatively, ought satisfy the Court that exceptional circumstances have been demonstrated.

17 Factors relied upon by the applicant, in this respect, are the following:

1. The alleged offences date back to 1995.

2. The applicant was first charged in March 1997.

3. The offences were the subject of committal in 1998 and the applicant was discharged on 29 June 1998.

4. The history of the proceedings raises an issue as to the strength of the prosecution case.

18 I pause there to observe that it does not seem to me that that factor weighs heavily in the present case. The complainant did not attend Court at the time for reasons said to be personal to her, and it is not said, as I understand it, that there has been any retraction by the complainant of the allegations against the applicant.

19 I continue:

5. The applicant has, in the intervening time, served a sentence of ten years from April 1997 to April 2007.

6. The current charges were not recommenced until 10 June 2008, a date after the conclusion of the applicant's sentence and well into his subsequent continuing detention order.

7. The applicant was at liberty between 18 April 2007 and 3 May 2007 following interim supervision orders made by Hoeben J and his arrest pursuant as to the order of the Court of Appeal. There was no breach of orders during that period.

8. The applicant was not released at the conclusion of his sentence, but was the subject of a continuing detention order that was extended to 31 October 2008.

9. With the exception of twenty-four days, the applicant has been in custody for eleven years and six months.

10. The applicant during the continuing detention order completed CUBIT, a sex offender treatment programme.

11. The applicant has been assessed by Dr Samuels, psychiatrist, prior to the completion of his continuing detention order.

12. Based on the applicant's progress, CUBIT, and the report of Dr Samuels, the State of New South Wales has commenced proceedings for an extended supervision order (and not a continuing detention order).

13. The State has not opposed an interim supervision order with strict conditions.

14. An interim supervision order was made on 27 October 2008.

15. The conditions of the interim supervision order are onerous, including residing at accommodation approved by the Department of Corrective Services, electronic monitoring and restrictions as to movement outside the Sydney metropolitan area.

16. Given the supervision of the Department of Corrective Services, including the Community Compliance Group, it is likely that the applicant will appear in Court (see s.32(1)(a) Bail Act 1978 ).

17. The proceedings are still in the Local Court. The applicant is likely to spend a number of months in custody before trial if bail is refused (s.32(1)(b)(i)).

18. The applicant needs to be free for a legal purpose not mentioned in s.32(1)(b)(ii), being to continue his rehabilitation until the interim supervision order (s.32(1)(b)(iii)).

19. The complainant and the community can be adequately protected by the interim supervision order and, if required, bail conditions which prohibit the applicant contacting or approaching the complainants (s.32(1)(b1) and (c)).

20. The likelihood of the applicant committing further offences whilst on bail is a consideration that is addressed by the strict conditions of the interim supervision order (s.32(2)).

20 I am satisfied in this case that exceptional circumstances have been demonstrated for the purpose of s.9D of the Act. I accept broadly the submissions of Mr Johnston in this respect. There is an accumulation of factors which lead me to the view that this is an exceptional case. The offences now charged against the applicant date back thirteen years. Ten years ago, the applicant was discharged at committal proceedings. Thereafter, but for a period of weeks, the Applicant remained in custody. Charges have recently been revived. They will proceed to a determination on their merits.

21 Whilst events have passed in the last eighteen months, the applicant has been in custody pursuant to a civil detention order which operated only upon the expiration of his sentence for past offences. His circumstances now, as the substantial body of material placed before the Court by the State of New South Wales on the application determined by me on 27 October 2008, demonstrates some level of progress. That does not mean that the charges against him ought not proceed to be determined on their merits. If he is convicted of those matters, the Court will have to determine an appropriate sentence to be passed upon him. There will, however, as Mr Johnston submits, be some almost unique factors to be considered in the circumstances of this case, having regard to the passage of time, and the different classes of criminal and civil detention which have affected this applicant in the last decade. I say no more than that, except to observe that those factors, when added to the other factors, reinforce the exceptional nature of the present case.

22 I turn then to the question of whether bail ought be granted. Between today and 1 December 2008, if the applicant is released on bail, he will be subject to rigorous conditions of a type exceeding bail conditions fixed on any regular basis in the criminal courts. If the applicant breached any of the conditions imposed by me on 27 October 2008, he would be liable to prosecution for breach of the supervision order under s.12 Crimes (Serious Sex Offender) Act 2006, an offence itself punishable by imprisonment of two years, or 100 penalty units, or both. That is the starting point before one moves to the Bail Act 1978.

23 Of course, the conditions imposed on the interim supervision order are not offence specific. The Crown, on this application, submits that if bail is granted, there ought to be conditions of a type seen regularly which prohibit contact by the applicant with the alleged victim, and members of the family of the alleged victim, and Crown witnesses and what could be described as orthodox conditions of that type.

24 In the circumstances of this case, the Court can be satisfied that the applicant will answer his bail. The existence of the conditions of the interim supervision order reinforce such a conclusion. Further conditions by way of bail ought be fixed, but those conditions will have regard to the practical reality that there will be a rigorous regime in place under the other statute.

25 I have regard as well to the practical reality that, on 1 December 2008, the State of New South Wales will appear before a Judge of this Court on an application to which I have made reference. The Director of Public Prosecutions has the conduct of the prosecution of the present criminal charges. It seems to me that the Court ought approach the matter upon the basis that the legal representatives of the State of New South Wales on the civil application will keep the Director of Public Prosecutions and investigating police informed of the conduct of those proceedings, and the currency and continuation of conditions of the interim supervision order or any extended supervision order which might be made.

26 I propose to grant conditional bail to the applicant which will require his attendance at the Junee Local Court on 11 November 2008. The bail is intended to operate thereafter, of course, subject to any other application that might be made. It is possible that an application concerning bail may be made by the Crown, or by the applicant, in the light of what transpires at the civil hearing listed on 1 and 2 December 2008. I simply note that, because of the unusual circumstances of this case, the question of bail and conditions, may be revisited.

27 My decision today has regard to what I consider will be the certain position between now and 1 December 2008, with the operation of the rigorous conditions fixed in the civil proceedings.

28 I do not propose to fix a reporting condition requiring the applicant to report to police. It seems to me, having regard to the conditions in the civil proceedings, that that will not advance the purposes of the Bail Act 1978 and it may, in some respects, undermine them.

29 Bail is granted subject to the following conditions:

(a) The applicant is to enter into an agreement to observe the following requirements as to his conduct while at liberty on bail;

(i) He is to appear at the Junee Local Court on 11 November 2008, and at such time and place thereafter as required.

(ii) He is to reside at a location approved by the departmental supervising officer with the Department of Corrective Services for the purposes of the interim supervision order made under the Crimes (Serious Sex Offenders) Act 2006 .

(iii) He is to enter into an agreement, without security, to forfeit the sum of $1,000 if he fails to comply with his bail undertaking.

(iv) He is to give an undertaking that he has no current passport, and he will not make any application for passport. (I note that the applicant does not currently have a passport).

(v) He is not to go within 200 metres of any airport or recognised point of departure for overseas.

(vi) He is not to approach, contact, harass, threaten, intimidate, or assault [EDITED - NON-PUBLICATION ORDER], or any members of the immediate families of those persons. (I note that non-publication orders have been made in respect to those names).

(vii) He is not to communicate directly or indirectly with any person whom he has received notice is to be called, or is likely to be called, by the Crown in the proceedings against him.

(viii) He is not to leave his residence after 9pm at night and before 6am the following morning without approval in advance from the departmental supervising officer from the Department of Corrective Services.

(ix) He is to be of good behaviour in all respects throughout the period of his liberty on bail.

(x) He is to inform the Director of Public Prosecutions immediately of any variation in the terms of the interim supervision order, or of the terms of any extended supervision order, including any variation of any interim supervision order which might be made.

(b) Bail is to be automatically revoked in the event of any breach of any one of these conditions, and the applicant may thereupon be arrested by a police officer.

(c) Bail may be entered into before any person authorised under the Bail Act 1978 .

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