Re Application for Bail by Gastello
[2020] VSC 548
•28 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0149
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Marco GASTELLO | |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 & 15 July 2020 |
DATE OF ORDERS: | 15 July 2020 |
DATE OF REASONS: | 28 August 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Gastello |
MEDIUM NEUTRAL CITATION: | [2020] VSC 548 |
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CRIMINAL LAW – Application for bail – Two charges of rape – Applicant required to show compelling reason – Significant delay – Compelling reason established – No Unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Barker | Leanne Warren and Associates |
| For the Crown | Ms D Karamicov | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 15 July 2020 I granted Marco Gastello’s (‘the applicant’) application for bail and said I would publish my reasons. These are those reasons.
On 15 June 2020, Detective Acting Sergeant Payne charged the applicant with two counts of rape, administering an intoxicating substance for a sexual purpose and sexual assault. The applicant has been remanded in custody since that date.
The charges relate to an incident alleged to have occurred between 8 and 9 July 2017, involving the applicant’s former housemate, NS (‘the complainant’). She reported the incident to police on 9 July 2017, however, due to a delay attributed to ‘police operation matters’, the matter did not progress for some three years.
On 26 June 2020, an application for bail was filed on behalf of the applicant in this Court. He was previously refused bail on 16 June 2020 at the Melbourne Magistrates’ Court, on the basis that he failed to show a compelling reason.
The matter is next listed on 11 September 2020 for committal mention at the Melbourne Magistrates’ Court.
The applicable legislation
Section 4AA(3) of the Bail Act 1977 (‘the Act’) sets out that the ‘show compelling reason’ test applies to a decision to grant bail to a person accused of a Sch 2 offence. As the applicant is charged with rape, the parties agree that the applicant falls into that category for the purposes of bail.[1] It follows that the Court must refuse bail unless satisfied that a compelling reason exists that justifies his release on bail.[2] The applicant bears the burden of satisfying the Court as to the existence of a compelling reason.[3]
[1]Bail Act 1977 (‘the Act’), Schedule 2, item 9.
[2]Ibid, s 4C(1A).
[3]Ibid, s 4C(2).
In determining whether a compelling reason has been made out, the Court must take into account the ‘surrounding circumstances’ outlined in s 3AAA of the Act.[4]
[4]Ibid, s 4C(3).
The meaning of a compelling reason is not defined in the Act. The Court of Appeal in Rodgers v The Queen[5] stated the following:
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing–a reason which is difficult to resist.[6]
[5][2019] VSCA 214.
[6]Ibid [43] (footnotes omitted).
If satisfied as to the existence of a compelling reason, the Court must apply the unacceptable risk test.[7] The Act mandates that the Court must refuse bail if satisfied by the respondent that there is an unacceptable risk of the kind set out in s 4E(1)(a).[8] At this second step, the Court must again have regard to the surrounding circumstances in s 3AAA and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[9]
[7]The Act, s 4D(1)(b).
[8]Ibid, s 4E(2).
[9]Ibid, s 4E(3).
Finally, when interpreting the Act, the Court must have regard to the guiding principles set out in s 1B of the Act.
The alleged offending
The complainant was 25 years old at the time of the alleged offending. She had arrived in Australia from Thailand approximately eleven months prior on a student visa to study English.
The applicant, aged 38 at the time, resided in a leased 3-bedroom apartment in Docklands and sublet the spare bedrooms to assist with paying the rent. On 8 July 2017, the complainant moved into one of the spare bedrooms, after responding to an advertisement placed by the applicant on the website ‘Gumtree’. She was previously unknown to the applicant.
On the night that the complainant moved in, the applicant invited her to play pool with him. The other occupants, two females, were not home at the time. The applicant offered the complainant some vodka to ‘kill the bacteria’ in her throat after she started coughing. The complainant believes she consumed three to four shots of vodka from a shot glass depicting a partially undressed woman. She went to the toilet and while there she heard the sound of a spoon clinking against a glass. When she returned, the applicant had filled up her shot glass with more vodka. He directed her to drink it, and she complied.
From that point, the complainant recalls finding it ‘difficult to walk’ but managed to reach her bedroom, where she fell onto the bed. Shortly after, she woke up in her bed to take off her jacket before going back to sleep.
The following morning around 10.00 am, the complainant awoke in the applicant’s bed. She was still wearing the same clothes as the night before, being a dress, pantihose and underwear. The applicant was lying next to her wearing only his underwear and she could feel his erect penis pressing against her buttocks. She quickly left the room and returned to her bedroom. The complainant initially could not remember how she came to be in the applicant’s bed, however, has since reported that she recalls the applicant dragging her to his bedroom by her wrists.[10]
[10]See Exhibit ‘AJH-6’, Statement of NS dated 16 June 2020, [4] exhibited to the Affidavit in Response to an Application for Bail of Alistair Hodgeman affirmed 8 July 2020 (’Affidavit in Response’).
Once she returned to her bedroom, the complainant saw her jacket on the floor and observed bruises that were not present the night before. She took photographs of some of the bruises that were present on both of her legs, the right side of her buttocks and her shoulders.
At approximately 11:30 am, the applicant sent her a text message saying she was ‘very drunk last night’ and that he was at the gym.
While alone in the apartment, the complainant found the shot glass she had been drinking from and observed the remnants in the glass. She dipped her finger into the liquid and extracted a white powdery substance. She photographed the glass and the substance on her finger, and poured the substance into a plastic cup which she later provided to the police.
The complainant sent a text message to her friend, DB, saying she believed the applicant ‘push pill in my drink to trying have sex with me’. He helped her to report the matter to police.
At 6:30 pm on the same day, the complainant attended the Melbourne West police station to report the matter. While there, she engaged in a pre-text telephone conversation with the applicant. She told him that she could not remember the previous night and asked ‘how I get the room’. The applicant responded saying he was very drunk and could not remember either. The complainant asked if they had engaged in sexual intercourse and the applicant replied he was ‘not sure’ as they ‘were very drunk’. He did not deny that they woke up in the same bed together.
The complainant underwent a medical examination at the Royal Women’s Hospital that evening, which identified an abrasion on her vagina and multiple bruises to her buttocks, arms, hip and legs. The doctor opined that the totality of the injuries were most likely the result of ‘infliction rather than accident’.
Forensic specimens were also taken, including swabs from the complainant’s vagina and anus, which identified the presence of male DNA and spermatozoa on both swabs. At the time that the present application was filed, the results of forensic analysis of those samples were still outstanding. The Court has since been provided with a report prepared by the Victoria Police Forensic Services Department dated 9 July 2020, which states that DNA analysis of the sperm fractions located on both swabs determined that the applicant cannot be excluded as a contributor with a likelihood ratio of 100 billion.[11]
[11]See Exhibit ‘AJH-14’, ‘Case Results Summary – Biological Sciences Group report’ dated 9 July 2020 exhibited to the Supplementary Affidavit in Opposition to an Application for Bail of Alistair Hodgeman affirmed 10 July 2020.
Further, a urine test from the complainant detected traces of a number of substances including a benzodiazepine known as Oxazepam. A sample from the plastic cup provided by the complainant was also tested and the presence of Oxazepam was confirmed. The complainant was not taking any benzodiazepine medication at the time.
First search warrant, arrest and interview — 10 July 2017
On 10 July 2017, police executed a search warrant at the applicant’s apartment and seized a number of items including his bedding, his mobile phone, the complainant’s clothing that she was wearing on the night of the alleged offending, three glasses and a small amount of cannabis.
The applicant was arrested and conveyed to Melbourne West police station for interview, during which he made no comment in relation to the allegations. He was charged with possession of cannabis and released on police bail.
Further investigation — 10 to 12 July 2017
During the course of the day on 10 July 2017, police analysed a micro SD card located in the applicant’s mobile phone and located a number of photographs taken between 24 March 2017 and 6 June 2017. These included thirty photographs depicting a woman’s buttocks and genital area while lying on a bed. The photographs are said to be taken extremely close up and some also depict a male’s hand touching the woman’s genital area. Also located were five photographs of passports belonging to various women and a photograph of a semi-naked woman on a bed. The applicant has not been charged with any offences in connection with those photographs at this stage.
Following this, police executed a second search warrant at the applicant’s address and seized 29 pairs of ladies’ underwear, multiple computers, more bedding and a container labelled ‘Temaze’, more commonly known as Temazepam.[12] It is said that, once ingested, Temazepam is metabolised by the body into Oxazepam.
[12]See Exhibit ‘AJH–2’ Informant’s report exhibited to the Affidavit in Response, states this is a prescription medication used to treat sleeping problems.
On 12 July 2017, police obtained a statement from the applicant’s wife, Lauren Tice, from whom he has been separated since 2014. She stated the applicant told her he ‘got off sleeping with girls that were out of it’ and he only ‘goes out’ with women who are backpackers. She also confirmed that he rents out bedrooms in his apartment for one week at a time. Additionally, she recalls the applicant having sexual intercourse with her whilst she was asleep and that he had informed her that he had naked photographs of her on his computer, which she did not give permission for him to take.
Whilst it was intended that the applicant be charged with sexual offences at that stage of the investigation, due to staffing changes within Victoria Police, those charges did not progress.[13]
[13]See, Affidavit in Support, [14].
Second arrest and interview — 15 June 2020
On 15 June 2020, the applicant was arrested for a second time in relation to the alleged rape of the complainant. He was again conveyed to the Melbourne West police station for interview and made no comment. He was subsequently charged and remanded in custody.
The applicant provided police with the access code to his mobile phone. Analysis of the phone’s contents identified a photograph taken on 30 December 2019 in the Docklands area depicting of a woman’s buttocks wearing black underwear, as well as further photographs of various unknown women of Asian descent in the applicant’s apartment, photographs of passports largely belonging to international residents and an application used to remotely view viewless video cameras. At the time, the applicant continued to advertise his apartment on ‘Gumtree’ and had multiple occupants reside at the property in the intervening period. It is said by the prosecution that the more recent photograph matches the ‘modus operandi’ of the applicant, noting the similarities between that photograph and those taken in 2017.
On the day of his arrest, a third search warrant was executed at the applicant’s apartment. Items seized at the time include a fish eye camera, a manila folder containing documents relating to a VCAT application in which a former occupant discloses ‘having to have’ sexual intercourse with the applicant, Minnie Mouse bed sheets suspected of being the same as those depicted in the December 2019 photograph, four computers and several electronic storage devices.
The applicant’s background
The applicant is 41 years old, having been born in August 1978 in Peru. He is the eldest of five children and attended school in Peru. He migrated to Australia in 2009 as an adult to study English and is a dual citizen of Peru and Australia. The applicant has a son in Peru with whom he does not have any contact.
Since arriving in Australia, the applicant has completed a short course in English and has been employed in a number of roles, including in hospitality, security, labouring and as an Uber driver. He ceased full-time employment at the start of 2020 due to a lack of available work and has only worked casually since that time. He was in receipt of Centrelink support for the two months prior to his remand.
The applicant has a limited criminal history with no prior convictions. In relation to the offence of possessing cannabis in 2017, he received a six-month adjourned undertaking without conviction on 27 February 2018. He has one other court outcome in September 2019, involving findings of guilt for refusing to allow a blood sample to be taken, careless driving of a motor vehicle, intentionally obstructing a police officer, contravening a police direction to move on, resisting a police officer and being drunk and disorderly in a public place.
The applicant’s contentions
In support of the application, two affidavits were filed on the applicant’s behalf by his solicitor, Alexandra McLure of Leanne Warren & Associates, as well as an outline of written submissions prepared by William Barker of counsel. That material sets out the following matters upon which the applicant relies to show a compelling reason justifying a grant of bail.
The strength of the prosecution case
The applicant disputed all charges against him. It was submitted that the prosecution case is not strong, that there are triable issues to be determined by a jury and a very real prospect of acquittal. Counsel for the applicant foreshadowed a possible application for discharge at committal.
While it is said to be difficult to determine the strength of the case in the absence of the hand up brief, the following was noted:
·the applicant did not make admissions during either of his two interviews with police, the pre-text call with the complainant or during the conversations with his former wife;
·the complainant made a contemporaneous statement to having no memory of the incident, but three years later, on the day after the applicant’s arrest, she made a further statement purporting to recall details of the incident;
·with respect to the genital abrasion identified during the course of the complainant’s medical examination, it was noted that the report of the medical examiner, Dr Kathleen Jackson, indicates that Dr Jackson could not exclude unrelated consensual sexual intercourse engaged in by the complainant in the week prior to the alleged offending as the cause of the genital abrasion; and
·the prosecution case arises from a single incident in which it is alleged that some form of sexual intercourse was engaged in by the applicant without the consent of the complainant. The nature of that sexual intercourse, for example whether it was penile or digital, is not particularised.
In his affidavit in support the applicant submitted that the weakness of the prosecution case alone is sufficient to satisfy the Court of a compelling reason. That submission was formulated prior to service of the DNA analysis report.
Alternatively, the applicant relied on a recent decision of Tinney J in Re Karaaslan,[14] in which his Honour considered that a compelling reason had been shown through a combination of the strength of the prosecution case in respect of serious sexual offences and other matters including delay.
[14](Unreported, Supreme Court of Victoria, Tinney J, 24 April 2020).
The applicant’s limited criminal history
The applicant has a limited criminal history comprising only two court outcomes in February 2018 and September 2019, being subsequent to the alleged offending in the present matter, and for which he received without conviction dispositions. With respect to the police and driving offences recorded in September 2019, Ms McLure describes the conduct giving rise to those charges as involving the applicant being pulled over for drink-driving, misunderstanding police directions and, as a result of his intoxication, reacting poorly. He has no history of sexual offending.
Delay and likely sentence
The applicant has been on remand since 15 June 2020, totalling 28 days to the hearing of this application. The applicant relied on the following two forms of delay to, either alone or in combination, show a compelling reason.
First, the significant three-year delay from the commencement of the investigation in this matter to the filing of charges, as well as a further delay in provision of the hand-up brief, which was inexplicably not ready to be served at the time of the filing hearing on 16 June 2020.
Secondly, the applicant relied on the significant delay in the progress and finalisation of this matter due to the backlog in the Magistrates’ Court and the County Court, in part as a result of measures introduced by the courts in response to the COVID-19 pandemic.[15] It was submitted that the ordinary delay before a contested committal hearing would be between six to ten months and that the applicant can expect a greater than ordinary delay. The Magistrates’ Court was due to recommence contested committal hearings in July but has since suspended such hearings as a result of the reintroduction of ‘stay at home’ orders in Victoria. It was submitted that a contested committal is not likely to proceed until mid to late 2021.
[15]Citing Re McCann [2020] VSC 138, Re Broes [2020] VSC 128, Re Tong [2020] VSC 141, Re El-Refei (No 2) [2020] VSC 164 and Re Nicholls [2020] VSC 189.
It was also submitted there will be a substantial period before jury trials can recommence and, on recommencement, will proceed at a reduced rate. There are no child witnesses in the present matter and the delay between the alleged offence date and charge date, meaning the matter will not be given priority for trial listings. It is therefore possible that this matter may not reach trial until 2022, being five years after the alleged offending. The applicant submitted that this ‘total delay’ is a separate and distinct compelling reason than the delay between charge date and finalisation of the matter.
It is acknowledged that if the applicant is found guilty on the charges of rape, he would likely receive a lengthy custodial sentence that would exceed any delay on remand. Given that the prosecution case is not strong on those charges, it was submitted that the likely sentence should not be given full weight in determining whether the delay amounts to a compelling reason.
If he were found guilty only on the other two charges, is submitted that the likely sentence for those charges would be ‘at worst’, a short custodial sentence followed by Community Correction Order, but that a Community Correction Order alone would also be open to the sentencing judge.
No negative bail history or history of non-compliance with court orders
The applicant has previously been subject to bail or summons a total of two times and has no convictions or findings of guilt for offences against the Act or of contravening other court orders.
Onerous conditions and burden of being in custody during the COVID-19 pandemic
This is the applicant’s first time in custody. The applicant submitted that he struggles with sleep apnoea, depression, anxiety and suicidal ideation making his time in custody more burdensome, although no medical or other evidence is provided to support this contention.
He also relied on the suspension of personal visits in custody, which he submitted is an integral part of maintaining connection to the community. He cites the recent decisions of this Court and the Court of Appeal in relation to the impact of the COVID-19 pandemic as a surrounding circumstance to be taken into account for the purposes of bail.[16]
[16]Citing El Nasher v DPP [2020] VSCA 144, Re Tong [2020] VSC 141 and Re Broes [2020] VSC 128.
Availability of stable accommodation
The applicant proposed to reside at [redacted], where he resided at the time of the alleged offending and until his arrest. It was submitted that if he is not bailed soon, he will be unable to maintain this accommodation leading to eviction and the loss of his belongings that are presently in that residence. At the time of the hearing, three other people resided in the apartment, being one couple and one single female. Prior to this, a couple and two brothers resided with him, but the brothers had to vacate as a result of losing work due to the COVID-19 pandemic. The applicant is the only person on the lease and the other occupants will need to find another place of residence if he is unable to return.
It was further submitted that, as a result of the re-introduction of stage 3 COVID-19 restrictions, the applicant will not be permitted to leave his residence except for an essential reason.
Prospect of paid employment
The applicant has maintained consistent employment since arriving in Australia in 2009, save for the period beginning early 2020 and has a demonstrated capacity to obtain and retain employment such that he is likely to gain paid employment following the easing of Stage 3 restrictions. He will be able to access Centrelink benefits in order to pay his bills in the meantime.
Community protection
Relying on Re Gaylor, the applicant submitted that the granting of bail in this matter would provide greater community protection than if the applicant were to remain on remand, as his continued imprisonment is unlikely to reduce his risk of reoffending in the long term.[17] In particular, the loss of his accommodation will ‘cripple’ him and likely lead to an increase in his level of risk. It was submitted the applicant has similar supports in place and a similar history of compliance with court orders as the applicant in Re Gaylor, and further, that the prosecution case in the present matter is not as strong as the prosecution case in that matter.
[17][2019] VSC 46 (Riordan J). The relevant paragraph relied on appears to be [38], as follows:
…the incarceration of this young man on remand for a further period of about 12 months is most unlikely to reduce the risk of reoffending when he is ultimately released; and may have the opposite effect. A grant of bail, as compared to remand for up to 12 months, will enable the applicant to receive intensive family support and treatment in the community. This may maximise his chance of rehabilitation and minimise the long term risk to the community of future offending.
Unacceptable risk
The applicant submitted there is a manageable and acceptable risk if he is released on bail, noting that he lived in the community for three years before charges were filed and nothing has occurred to increase his level of risk over that period.
The applicant relied on the circumstances outlined above and the following contentions in relation to unacceptable risk:
Committing an offence while on bail
It was noted that the applicant was interviewed in relation to this matter on 10 July 2017 and released on police bail on the charge of possessing cannabis. He complied with the conditions of bail and there is no evidence that he committed any further offences while on bail, or in any sexual offending since the original allegations were made in July 2017. Further, it was submitted that the applicant will be deterred from any further offending as a result of having served 28 days on remand, and is aware that he will be monitored closely by police.
It was noted that the risk alleged by the respondent is a narrow type of offending, namely sexual offending against women subletting rooms from him. The applicant submitted that there are bail conditions available that could mitigate the risk of this type of offending to an acceptable level.
Failing to surrender into custody in accordance with the conditions of bail
The applicant is a dual citizen but intends to remain in Australia, having ties to the jurisdiction since making Melbourne his home in 2009 and becoming an Australian citizen. Both of his passports have been surrendered to police.
Further, it was noted that the applicant did not flee the jurisdiction, or move residences, in the intervening period between the commencement of the investigation and charge date, despite his contact with police in July 2017.
Endangering the safety or welfare of any person
It was noted that the prosecution allege that the applicant has demonstrated a pattern of ‘predatory’ behaviour against vulnerable women, however, it was submitted that the evidence in support of that argument is insufficient to satisfy the Court that the alleged risk to others exists. There is no link between the photographs located on the applicant’s devices and the alleged offending, with no allegation that there were photographs taken of the complainant during the offending or in the days surrounding the period that she resided in the residence. Various occupants have resided in the apartment prior to and after the alleged offending and no further allegations have been made against the applicant.
The applicant contended that appropriate bail conditions can be imposed to ameliorate any risk to an acceptable level. A number of conditions were proposed by the applicant including a prohibition on the consumption of alcohol and to notify the informant of all current occupants of his apartment and give the informant at least 24 hours’ notice before any proposed new occupant moves in.
The respondent’s contentions
The respondent opposed bail on the basis that the applicant has not shown a compelling reason justifying the grant of bail, and there is an unacceptable risk that the applicant would endanger the safety or welfare of any person or commit an offence while on bail.
The respondent addressed the surrounding circumstances as follows:
Nature and seriousness of the alleged offending.
The applicant is charged with objectively serious charges, noting the maximum penalties for rape and sexual assault, and, further, the allegations are serious examples of the charged offences. It is put that the applicant’s behaviour is predatory and targeted at vulnerable and intoxicated women, noting that the photographs on the applicant’s phone indicate that he may have offended against other women both prior to and following the incident the subject of the present charges.
Strength of the prosecution case
The prosecution relies on the injuries sustained by the complainant, the presence of male DNA and spermatozoa (now confirmed to belong to the applicant) inside the complainant’s vagina and anus), and the detection of Oxazepam in both the complainant’s urine and the shot glass she was drinking from on the night of the alleged offending.
The applicant’s criminal history
It was acknowledged that the applicant has a limited criminal history, however, the respondent submitted that his prior offending displays a lack of respect for police authority.
Compliance with previous grants of bail
The respondent accepted that the applicant complied with the conditions of bail entered into on 10 July 2017 in relation to the possession of cannabis for a period of approximately seven months.
Personal circumstances and onerous conditions in custody
It was submitted that the applicant’s personal circumstances relating to his sleep apnoea and mental health do not amount to a compelling reason justifying the grant of bail.
Further, the respondent noted that there have been no cases of COVID-19 identified in any Victorian prisons to date or any associated lockdowns. It was also noted that the applicant has not produced any evidence to support any formal diagnosis of his stated conditions or the impact on him in custody.
Delay and likely sentence
It was submitted that the delay in bringing the charges against the applicant, while unfortunate, was due to police operation matters and does not amount to a compelling reason.
Furthermore, it was acknowledged that there might be some delay in the matter proceeding to trial due to measures introduced by the courts in response the COVID-19 pandemic, however any trial date is presently speculative. The applicant has not been committed for trial and the matter is at the earliest stage of the committal process, with the hand up brief due to be served on 23 July 2020 and the first committal mention listed for 11 September 2020. With respect to the delay to committal, it was submitted that the applicant’s time on remand awaiting progress through the ordinary committal process cannot be attributed to COVID-19. The results of the DNA analysis are now available and there are no other issues that would unreasonably delay the progress of the matter. It was also stated that, should police identify further complainants, these would be the subject of a separate investigation that would not interfere with the present matter.
Finally, the respondent stated that any potential delay in the matter is not disproportionate in light of the strength of the case, seriousness of the allegations and the likely sentence. On the last point, it was put that the applicant is likely to be sentenced to a significant term of imprisonment if he is found guilty on some or all of the charges.
The complainant is concerned about the applicant being released on bail
The respondent relied on the above and the following contentions to support its position that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of any person or commit an offence while on bail:
·The allegations against the applicant involve predatory behaviour, and prior to his remand, he continued to advertise his apartment on ‘Gumtree’ in an effort to target young Asian women to temporarily reside with him. It was also noted by the respondent in his report that, although there was a three-year delay to charge the applicant, police had ‘intervened’ with him at the time the complainant was reported. Notwithstanding this intervention, the photographs located on his phone in June 2020 suggest that he has continued to offend in the intervening period. As a result, the respondent was concerned that the applicant will continue to commit similar offence against other vulnerable females, who are unlikely to report the matter to police due to cultural and language barriers. Furthermore, due to the nature of the applicant’s alleged offending, any additional complainants may not be aware that they have been offended against.
·The applicant was unemployed and is dependent on subletting the other two bedrooms in his apartment to pay his rent, which the respondent submitted would give him access to potential victims. The respondent rejected the applicant’s proposal that a bail condition prohibiting from residing with females would adequately mitigate this risk as police do not have any statutory power to enter and search his apartment to monitor compliance with such a condition.
·Noting that the applicant reports suffering from anxiety and depression, the respondent expressed concern that he may be prescribed medications that could be used to create further offending opportunities.
·As reporting obligations for persons on bail remain suspended, the respondent expressed concern that the applicant will not be monitored adequately if released in the community. The respondent understands Victoria Police will not be enforcing these obligations until the suspension is lifted.
·The respondent submitted that the applicant may have an incentive to flee the jurisdiction as he is facing a lengthy term of imprisonment if found guilty, although the materials do not specifically assert that the applicant is an unacceptable risk of failing to surrender into custody in accordance with the conditions of bail.[18]
[18]See, Affidavit in Response, [61].
Notwithstanding the opposition to bail, if the applicant were granted bail, the respondent sought a number of bail conditions, including conditions relating to daily reporting, a curfew and preventing the applicant from residing with females.
Conclusions
The applicant has been charged with two counts of rape and is therefore in a position that he must show a compelling reason justifying a grant of bail, and I must not grant bail unless a compelling reason has been shown.
I am satisfied that the delay which has passed since the alleged offending in July 2017, which, it is accepted, is no fault of the applicant, taken together with any delay between now and any possible trial is significant. The specific delay is a matter of speculation. The most recent protocol issued by the County Court would seem to indicate that it is most unlikely that the applicant could be tried before the beginning of 2022. No question arises as to that period of time exceeding any time he might receive by way of sentence if convicted of these offences, but it is a very significant delay.
In relation to the present COVID-19 pandemic, the conditions in which prisoners are now being held is more difficult than it would ordinarily be. Taking those three matters into account, I am satisfied that a compelling reason has been made out.
The informant is very concerned that the applicant would be an unacceptable risk if he was released on bail.
As emerged in my discussion with Ms Karamicov, who appeared on behalf of the respondent, although one might appreciate the general suspicions that the informant holds, they are not supported by significant evidence. The fact of the matter is that the applicant has been at large for the last three years and in that time, there is no evidence that he has reoffended. 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.
As matters stand, I am satisfied by the imposition of sufficiently stringent conditions, that the risk, which I accept plainly exists, can be reduced to an acceptable level. I take into account, in coming to that conclusion, that the applicant has now been on remand since the date of his arrest and understands more clearly now the consequences that would occur if he breached any of his bail conditions.
I granted the applicant bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Magistrates’ Court on 11 September 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
2. He reside at [redacted], and not change that address without the leave of the Court.
3. He remain at those premises between the hours of 9:00pm and 6:00am each day for the duration of bail.
4. 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.
5. He notify the informant of all current occupants of [redacted] and notify the informant 24 hours prior to any occupant moving out or any new occupant moving into [redacted].
6. He not allow any females to occupy any accommodation at [redacted] and that he admit any member of Victoria Police to those premises to ensure compliance with this condition. This condition does not apply to present tenants of the premises.
7. He report each Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Melbourne West, or his or her nominee, between the hours of 6:00am and 9:00pm, but such reporting is suspended until the informant has notified the applicant that in-person reporting has resumed.
8. He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
9. He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
10. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
11. He not leave the State of Victoria.
12. He not seek to have his passports which are in the custody of the informant returned to him and not apply for any other travel documents.
13. He not attend any points of international departure.
14. On Friday 17 July 2020 at 2pm he contact CROP Advanced Assessment and Referral Practitioner Ms Kellie Couacaud by phone on [redacted].
15. He comply with all lawful directions of any officer of CISP and attend any appointments as directed by CISP.
16. He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 12 August 2020, and any further dates this Court appoints during the course of this order.
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