Re application for bail by Gastello
[2021] VSC 861
•22 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0363
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an application for bail by Marco Gastello |
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JUDGE: | WHELAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2021 |
DATE OF JUDGMENT: | 22 December 2021 |
CASE MAY BE CITED AS: | Re application for bail by Gastello |
MEDIUM NEUTRAL CITATION: | [2021] VSC 861 |
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CRIMINAL LAW – Application for bail – Two charges of rape and two related charges in relation to one complainant – Two charges of sexual offending against two other complainants – One charge of knowingly possessing child abuse material - Applicant required to show compelling reason – Significant delay – Compelling reason established – Unacceptable risk – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Barker | Leanne Warren & Associates |
| For the Respondent | Ms F Holmes | Director of Public Prosecutions |
HIS HONOUR:
On 19 October 2021, the applicant was committed for trial in the County Court on 14 sexual offence charges. A directions hearing is listed in the County Court on 19 January 2022. The applicant made an application for bail which was listed in the County Court on 3 December 2021. That date was vacated. The applicant then made an application for bail to this Court on 8 December 2021.
The charges upon which the applicant has been committed for trial are in two separate groups.
The first is a group of four charges, including two charges of rape, which concern a complainant I will refer to as ‘S’. These offences were allegedly committed on the night of 8–9 July 2017. S made a complaint to the police the next day.
Consequent upon S’s complaint, police undertook investigations, executed search warrants, and seized computers and a mobile phone of the applicant. They discovered a large number of photographs and some videos, many of which are close–up depictions of female genitalia. These photographs and videos eventually formed the basis of the second group of charges. There were 27 such charges, upon 10 of which the applicant has been committed for trial.
The applicant was charged with the four offences concerning S on 15 June 2020. He was charged with the other 27 offences on 18 December 2020. The delay between S’s complaint and the laying of charges was a result of police inaction for which the applicant was not responsible. The explanation given was that the informant and lead investigator, Detective Senior Constable Mark Payne, was moved to other duties and, in his absence, over a period of almost three years, nothing was done.
The earlier bail application
The applicant was granted bail on 15 July 2020 by Coghlan JA[1]. That hearing and grant of bail concerned the first group of four charges relating to the alleged offending against S. The applicant had not then been charged with the second group of offences.
[1]Re Application For Bail By Gastello [2020] VSC 548.
Because two of the four charges concerning S are of rape, on the earlier bail application the applicant was required to satisfy the Court that a compelling reason existed that justified the grant of bail. Coghlan JA was satisfied that a compelling reason existed. The reason was a combination of the almost three years of delay as a result of police inaction and what was projected to be the delay before trial as a consequence of matters related to the COVID–19 pandemic.[2]
[2]Ibid [77]-[78].
Having found that a compelling reason had been made out, the Court was then required to address the issue of unacceptable risk. The judge referred to the fact that the applicant had been at large for three years and that there was no evidence he had re–offended during that period. In relation to the photographs and videos which had been found, the judge said:
It is likely that the full investigation is not yet complete and it may possibly be that other charges might arise in relation to the applicant, but those are really matters for another day.[3]
[3]Ibid [80]. See also Transcript of Proceedings (15 July 2020) 22, 28.
The judge observed in the course of argument that the applicant’s offending had been against S, who was his sub-tenant, that the photographs and videos seemed likely to concern other female sub–tenants, and that ‘sufficiently stringent conditions’ addressing that particular circumstance could reduce his risk of re-offending to an acceptable level.[4] Conditions were imposed upon his bail requiring him to notify police of the occupants of his accommodation and requiring him not to allow any women to occupy his accommodation.[5]
[4]Ibid 25.
[5][2020] VSC 548 [82], Conditions 5 and 6.
Further investigations and the other charges
The investigations which were incomplete at the time of the grant of bail in July 2020 were completed after that determination. The applicant was then charged with 27 sexual offences on 18 December 2020. He was remanded in custody. The 27 offences were all based upon the photographs and videos which had been found on the equipment seized in 2017 as referred to above. Four women were identified by police as being depicted in that material. One was the applicant’s ex–wife. Two, who I will refer to as ‘D’ and ‘L’, were female sub-tenants of the applicant at the time of the alleged offending, like S. One, who I will refer to as ‘B’, was a woman who had worked with, and had occasionally socialised with, the applicant. [6]
[6]As to the timing of the investigations, for present purposes, it is sufficient to note that relevant statements concerned B were taken on 19 October 2020, and 4 November 2020; relevant statements concerning D were taken on 21 July 2020, 23 July 2020, and 13 August 2020; and the material the subject of the possession of child abuse material was located on the applicant’s computer in August 2020.
The applicant was committed for trial on 10 of the 27 charges. The applicant was not committed on the charges concerning his ex-wife or those concerning L. Of the 10 charges upon which the applicant was committed, two charges concerned B, seven charges concerned D, and the remaining charge was a charge of knowingly possessing child abuse material. The charge of knowingly possessing child abuse material concerns 13 videos, 12 of which are said to depict girls between the ages of 2 and 16 engaging in sexual activity with both children and adult men.
Explanations in the course of the hearing
In the course of the hearing before me, the prosecution advised that the applicant’s ex–wife had not wished to proceed with the charges which concerned her and they were withdrawn. The prosecution advised that L was in a foreign country and, for logistical reasons at least in part related to the COVID-19 pandemic, she had not been able to give evidence at the committal. Those charges were also withdrawn but the prosecution indicated there remained the possibility of a direct indictment on the charges which concerned L.
After some initial confusion and disagreement, counsel for the parties advised that agreement had been reached between the defence and the prosecution on the charges concerning D and B. It is agreed that the applicant will plead guilty to one charge of assaulting B in indecent circumstances on 11 January 2014 and will plead guilty to one charge of intentionally touching D in a sexual manner to take photographs of her genital/anal region without her consent on 21 April 2017, and that the other charges, with the exception of the charge of knowingly possessing child abuse material, will be withdrawn.
The charge of knowingly possessing child abuse material is unresolved and is contested.
Relevant provisions of the Bail Act
Under the Bail Act 1977 (‘the Act’) a person accused of an offence is entitled to bail unless the bail decision maker is required to refuse bail (s 4).
The two rape offences with which the applicant is charged in relation to S are Schedule 2 offences under the Act. This means that a two-step test applies to the application for bail. First, the accused must satisfy the court that a compelling reason exists which justifies the grant of bail (s 4AA(3)). If the court is not so satisfied, bail must be refused (s 4C(1A)). The accused bears the burden of proof (s 4C(2)). Surrounding circumstances as set out in s 3AAA of the Act (‘the specified circumstances’) must be taken into account (s 4C(3)).
If the court is satisfied that a compelling reason exists which justifies the grant of bail, the court must then move to the second step, being application of the unacceptable risk test (s 4C(4)).
In relation to the unacceptable risk test, the prosecution bears the burden of proof (s 4D(2) and s 4E(2)). Bail must be refused if the decision maker is satisfied that if released on bail there is an unacceptable risk that (relevantly) the accused would endanger the safety or welfare of any person or would commit an offence while on bail (s 4E(1)(a)). The specified circumstances must again be taken into account (s 4E(3)(a)), and consideration must be given to conditions which may be imposed to mitigate any risk (s 4E(3)(b)).
The specified circumstances which are relevant here, and which must be considered at each of the two steps, are the nature and seriousness of the alleged offending, the strength of the prosecution case, the applicant’s criminal history, the applicant’s compliance with any earlier grant of bail, the applicant’s personal circumstances, the availability of treatment and bail support, the length of time the applicant is likely to spend in custody if bail is refused, and the likely sentence to be imposed should the applicant be found guilty of the charged offences.
The specified circumstances
The four charges against the applicant concerning S are two charges of rape, a charge of administering an intoxication substance for a sexual purpose, and a charge of sexual assault.
The case against the applicant on the rape charges is, in my opinion, a strong one.[7] Forensic scientific evidence strongly supports a conclusion that the applicant had vaginal and anal intercourse with S while she was under the influence of the drug Oxazepam. That evidence, and the surrounding circumstances insofar as S can recall them, strongly support a conclusion the applicant ‘spiked’ her drink with that drug.
[7]Coghlan JA was of the same opinion: See Transcript of Proceedings (15 July 2020) 43.
It was submitted on behalf of the applicant that at the committal S’s evidence had revealed that her recollection of events on the relevant night, and, in particular, a recollection she had previously said that she had of being dragged into the applicant’s room, was significantly impaired. When it was suggested that that circumstance did not relevantly impact upon the strength of the prosecution case, given that the forensic scientific evidence appears to establish that S had been drugged and that both vaginal and anal intercourse had occurred, counsel for the applicant responded:
… the jury might accept that a sleeping drug was given so that photographs can be taken without a person waking up … and that doesn’t necessarily mean that advances by the complainant were not with consent, because there is no other charge that Mr Gastello faces where this happened.[8]
[8]Transcript of Proceedings (16 December 2021) 55.
It seems to me that the prosecution case on the rape charges against S remains a strong one. On the explanation given to me, the charge of administering an intoxication substance may not be contested and may indeed be part of the defence.
In relation to the photographs and videos which formed the basis of the other 27 charges, as matters currently stand, only three charges will proceed. The applicant will plead guilty to a charge of indecent assault against B and to a charge of unlawful touching for a sexual purpose against D. The charge of knowingly possessing child abuse material is contested.
The nature of the conduct now admitted against D (a sub-tenant) is apparent from the charge itself. The applicant intentionally touched D in a sexual manner to take photographs of her genital and anal region while she was in bed and without her consent.
As to the admitted offending against B, the circumstances, as set out in the material before me, were as follows.
At the time of the admitted offending the applicant was 35 years of age. B was much younger. B was a friend of another young woman who was working in hospitality with the applicant. They, together with others, on occasions socialised together. Those occasions could involve the excessive consumption of alcohol.
B would often stay at the apartment of her friend. On the occasion of the offending, B was very intoxicated and stayed at her friend’s apartment, as did the applicant. The prosecution summary of the offending reads as follows:
Complainant [B] passed out unconscious on [the friend’s] bed. At the time she was laying on her right side, wearing a white singlet top, pink shirt, pink underwear and white high heeled shoes.
[The friend] cannot recall if she stayed in another room or not.
The accused has unzipped complainant [B’s] skirt, pulled her skirt and underwear down to her thighs and repositioned her so that she was laying chest against the bed.
The accused has touched her buttocks spreading her cheek to expose complainant [B’s] vagina and anus.
During this time the accused has used his Apple iPhone 4S mobile phone to take twenty-six (26) photographs of the complainant [B] depicting these actions. The photographs were taken between 1:01 am and 3:13 am and have GPS data from [the friend’s address].
One of these images depicts an unknown liquid on complainant [B’s] left buttock cheek, which had not been there previously.
The accused has copied these photos from his mobile phone onto his [laptop].
The alleged offending against S is obviously very serious. In my opinion, the other offending and alleged offending is also serious.
The applicant has no relevant criminal history. He has been convicted of some subsequent offending, but it was not offending of a sexual nature.
Amongst the conditions imposed by Coghlan JA was a condition that the applicant remain at his premises between the hours of 9:00 pm and 6:00 am on each day and a further condition that he present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so. Detective Senior Constable Payne, the informant, swore an affidavit and gave evidence on the bail application. His evidence was that he had checked on the applicant on five occasions during the curfew hours. On three occasions he was present, on one occasion the front door was not answered, and on one occasion the applicant was not present and his co-tenants said he was working. In relation to the occasion upon which the door was not answered, the applicant’s explanation was that the police attendance had been at a late hour. That is an inadequate explanation, given his obligation under the conditions of his bail to present himself at the front door when requested to do so by police. In relation to the occasion when he was not present and the co-tenants explained that he was at work, I was told that there was an application then pending for variation of the curfew conditions so as to permit him to attend work. The applicant was not entitled to leave his premises for work until that variation was granted. Otherwise, the applicant complied with the conditions of bail set by Coghlan JA. He has also complied with the conditions of another bail in an unrelated matter.
The applicant is 43 years of age. He was born in Peru, and is a dual citizen of Peru and Australia. He migrated to Australia in 2009. Since arriving in Australia, he has been employed in a number of roles including hospitality, security, labouring and as an Uber driver.
The applicant does not have family in Australia. He has a sister in the United States of America. His sister gave evidence on the bail application. She indicated that she is prepared to pay for temporary accommodation for the applicant in an apartment on his own until he is able to find an apartment for himself on a long term basis. She said that, if necessary, she would pay for temporary accommodation for up to a year. She had arranged a week of temporary accommodation through booking.com for the applicant in anticipation of both the earlier application to the County Court on 2 December 2021 and this application. The proposal is that he should be required by a bail condition to reside there upon release, and that that condition would then be altered once he obtained a long term lease of an apartment by himself.
The applicant received bail assistance from the CISP Remand Outreach Program in relation to the earlier bail application. That assistance continued until September 2020. The relevant reports indicate that at that time the applicant was still awaiting a psychological assessment. The reports are otherwise generally positive concerning the applicant’s engagement and compliance.
The applicant has been in custody for a year since he was charged with, and remanded on, the 27 sexual offences, all but three of which have now been withdrawn. He was in custody for approximately one month prior to the earlier grant of bail in relation to the four charges concerning S. There is a directions hearing scheduled in the County Court on 19 January 2022.
Given the dislocations caused by the COVID–19 pandemic, whilst a trial on the contested matters could be heard in 2022, it remains a real possibility that a trial will not proceed until well into 2023. If that were to occur, and if he were not granted bail, by the middle of 2023 he would have been in custody for approximately two and one–half years.
If the applicant is convicted of the rape offences, it seems to me that he is very likely to receive a custodial sentence well in excess of the time which he will have spent in custody if bail is refused. On the other hand, if the only offences upon which he is eventually sentenced are the two offences concerning B and D to which he will plead guilty, it is possible that the sentence imposed upon him would have a custodial component of less than two and one–half years.
Submissions
The submissions put on behalf of the applicant substantially relied upon Coghlan JA’s decision in July 2020 and upon his conclusions that a compelling reason existed justifying the grant of bail and that relevant risks could be adequately mitigated by stringent conditions.
Counsel for the applicant submitted that the prosecution case on the rape charges was weaker now than it had been when the matter was before Coghlan JA. Reliance was placed upon the fact that the other 27 charges had now been resolved on the basis that all except three of them were to be withdrawn.
It was submitted on behalf of the applicant that the compelling reason now is the same as it had been before Coghlan J, being the extraordinary delay between S’s complaint and the laying of charges, combined with the very significant delay which will occur in the contested matters proceeding to trial as a consequence of the COVID–19 pandemic.
Counsel for the applicant relied upon the fact that the applicant has no history of prior offending, and that there is no evidence of any relevant offending since 2017.
On behalf of the applicant, it was submitted that the applicant proposed to live alone in accommodation arranged with the assistance of his sister. The applicant was prepared to submit to conditions of the kind which had been imposed by Coghlan JA including curfew conditions, and a condition that he live alone.
On behalf of the respondent, it was submitted that the applicant had displayed sexual proclivities which were very concerning and which represented a risk to any woman with whom he came into contact. The offending was not confined to sub–tenants.
In his affidavit filed in opposition to the application for bail, Mr Payne, in addition to relying on the circumstances of the offending itself, also relied upon internet searches which had been conducted by the applicant, a photograph located on the applicant’s phone which was taken on 30 December 2019 and was said to be of a similar kind to those which were the subject of charges, the discovery when the applicant was arrested in June 2020 of a wireless camera and an application on the applicant’s phone which enabled the remote viewing of a wireless camera, and the fact that the applicant had never undergone any form of treatment for sexual offending.
In relation to the wireless camera and the phone application, Mr Payne deposed that no images from the wireless camera had been located. In his oral evidence he said that in his view this was a matter of concern. He expressed the view that if this equipment was held for an innocent purpose, innocent videos would have been located. He also gave evidence that sophisticated offenders are able to conceal material in the ‘cloud’ in such a way that it is difficult for police to locate it.
Analysis — compelling reason
It remains incumbent upon the applicant to satisfy the Court that there is a compelling reason that justifies the grant of bail. The relevant circumstances may be perhaps less compelling than they were in July 2020. When the applicant was charged on 18 December 2020, he was remanded in custody and he did not apply for bail again until after the committal. The concerns in relation to when a trial might be held, given the position with the COVID–19 pandemic, are perhaps less pressing now than they were in the middle of 2020.
Nevertheless, the extraordinary delay, through no fault of the applicant, between the initial report and the applicant being charged, combined with the likely delay before there can be a trial due to the COVID-19 pandemic remains, in my opinion, a compelling reason which justifies the granting of bail. In reaching this conclusion I have taken into account the specified circumstances.
Analysis — unacceptable risk
It is then necessary to determine whether the prosecution has established that the applicant constitutes an unacceptable risk. The relevant risks here are the risk the applicant would endanger the safety or welfare of any person and the risk the applicant would commit an offence while on bail.
At the time of the earlier bail application, it was thought that, insofar as the applicant represented a risk, it was a risk to women residing with him as sub–tenants. The admitted offence against B has demonstrated that that is not so.
In my opinion there is a significant risk that the applicant would, if released on bail, endanger another person, and a significant risk that he would, if released, commit an offence while on bail. In my opinion, the applicant has demonstrated sexual proclivities which represent a risk to women with whom he comes into contact, and not just to those with whom he might be residing.
The prosecution case against the applicant on the two rape charges against S is strong, and the defence foreshadowed in the course of the hearing before me does nothing to reduce concerns as to the applicant’s sexual proclivities.
In contrast to the position at time of the earlier bail application, the applicant now admits offending against two other women. In my view, the circumstances of that admitted offending are most concerning, particularly when seen in the context of the large volume of similar photographs which were found on the applicant’s phone and computers, including one from after 2017. Notwithstanding the fact that only three charges based upon that material are now proceeding, the number of photographs similar to those of the admitted offending which were in the applicant’s possession is a cause of serious concern. Further, when considering that material, the strength of the case on the rape charges is also relevant.
In addition, the applicant faces a charge of possession of child abuse material, constituted by videos found on his laptop. It is not known what the applicant’s defence is to that charge.
The accommodation proposed if the applicant is released on bail, being temporary accommodation arranged by his sister through booking.com, may be the best that can be done, given the applicant’s circumstances. But as arrangements for an admitted sex offender, facing additional serious sexual offence charges, they are not satisfactory, in my opinion.
Based upon the material before me, no psychological assessment of the applicant has been undertaken.
I have considered whether conditions of the kind imposed by Coghlan JA might adequately mitigate the risks. My conclusion is that they would not.
The relevant risks are not confined to women residing with the applicant. The applicant has now admitted sexual offending against two women, one of whom was young and who may be best described as either a work colleague or a friend of a friend.
The applicant was not strictly compliant with the curfew conditions Coghlan JA imposed.
Conditions by virtue of which an offender is compelled to reside alone, and is restricted in their ability to socialise, are less than ideal in addressing a risk of recidivism. This is particularly so where the person has no family or other like support, and is receiving no psychological or other professional support directed at reducing the risk of re-offending.
The applicant’s circumstances are such that conditions requiring him to live alone and to comply with curfew and reporting conditions would have to be imposed. On the material before me he has no family or like support in Australia. There is nothing before me indicating that he is receiving any psychological or other professional assistance.
Conditions requiring the applicant to live alone, and curfew and reporting conditions, would not, in my opinion, sufficiently mitigate the risks to warrant a grant of bail.
Conclusion
Given my conclusions as to risk, bail must be refused.
When the matters come before the County Court on 19 January 2022, the applicant will have been on remand for over a year. Given the delay which has already occurred through no fault of the applicant or the complainants, it is to be hoped that further delays before any trial can be minimised.
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