Re Application for Bail by Roberts

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2018 0214

IN THE MATTER OF THE Bail Act 1977 (Vic)
and
IN THE MATTER of an application for bail by BRADLEY ROBERTS

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2018
DATE OF RULING:	21 September 2018
CASE MAY BE CITED AS:	Re Application for Bail by Roberts
MEDIUM NEUTRAL CITATION:	[2018] VSC 554

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CRIMINAL LAW – Application for bail – Applicant charged with 64 offences including rape, unlawful assault, contravene a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material – requirement to show compelling reasons – whether unacceptable risk – bail opposed – Bail Act 1977 (Vic) ss 1B, 3AAA, 4C, 4E and 5AAAA – Bail refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. K. Wareham	Tyler Tipping & Woods
For the Respondent	Ms M. Mahady	John Cain, Solicitor for Public Prosecutions

HER HONOUR:

The applicant, Bradley Roberts, was arrested in Queensland on 4 July 2018. On 5 July 2018 the applicant was extradited to Victoria. He did not oppose the application for extradition. He has been in custody since 6 July 2018.

The applicant was charged with a number of offences on 5 July 2018 and further offences on 20 July 2018. The full suite of those charges is as follows:

· 7 charges of rape contrary to s 38(1) of the Crimes Act 1958 (‘Crimes Act’);

· 1 charge of attempted rape contrary to ss 321M and 38(1) of the Crimes Act;

· 3 charges of assault contrary to s 23 of the Summary Offences Act 1966;

· 13 charges of contravention of a family violence intervention order (‘FVIO’) intending to cause harm or fear for safety contrary to s 123A(2) of the Family Violence Protection Act 2008 (‘FVP Act’);

· 27 charges of contravention of a FVIO contrary to s 123(2) of the FPV Act;

· 8 charges of persistent contravention of a FVIO contrary to s 125A of the FPV Act;

· 1 charge of damaging property contrary to s 187(1) of the Crimes Act; and

· 1 charge of stalking contrary to s 21A(1) of the Crimes Act.

On two separate occasions in July 2018, first in person and then by legal representation, the applicant applied for bail at the Latrobe Valley Magistrates’ Court. On both occasions bail was refused on the dual bases that he had failed to show a compelling reason for the grant of bail and that he was also an unacceptable risk of committing further offences, endangering the safety or welfare of any person and interfering with a witness or otherwise obstructing the course of justice, if released.

On 3 August 2018 the applicant applied to this Court for bail.

On 24 August 2018 the applicant was charged with three further offences[1], namely:
[1]The further charges were preferred as a result of forensic testing of Mr Robert’s mobile telephone handset and are alleged to have been committed, like all other charges, prior to his arrest in July 2018.

· 1 charge of using a carriage service for child pornography material contrary to s 474.19 of the Criminal Code (Cth) (Criminal Code); and

· 2 charges of contravention of a FVIO contrary to s 123(2) of the FPV Act.

All charges are listed for committal mention on 4 October 2018.

The Statutory Test

The filing of charges under ss 21A(1), 38(1) and 321M with 38(1) of the Crimes Act, as well as those under ss 123(2), 123A(2) and 125A of the FPV Act means that I must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[2] The applicant bears the burden of establishing the existence of a compelling reason.[3] In considering whether that burden has been discharged, I must take into account the surrounding circumstances.[4]
[2]Bail Act 1977, s 4C(1) (‘Bail Act’).
[3]Bail Act s 4C(2).
[4]Bail Act, s 4C(3).

Surrounding circumstances are defined to mean all the circumstances that are relevant to the matter including, but not limited to, the following—

(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused—
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f)whether there is in force—
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;

(g)the accused's personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation. [5]

[5]Bail Act, s 3AAA.

For the applicant to show compelling reason, a synthesis or balancing of all relevant matters must compel the conclusion that his detention in custody is not justified. It is not necessary for him to show a reason which is irresistible or exceptional.[6]
[6]Re Ceylan [2018] VSC 361, [46]-[47].

If I am satisfied that a compelling reason exists that justifies the grant of bail, I must then apply the unacceptable risk test.[7] That test shifts the burden to the prosecution to satisfy me as to the existence of a risk that the applicant would, if released on bail:
[7]Bail Act, ss 4C(4) and 4D(1).

(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.[8]

The prosecution must also satisfy me that the risk is an unacceptable risk.[9]

[8]Bail Act, ss 4D(2)(a) and 4E(1)(a).

[9]Bail Act, ss 4D(2)(b) and 4E(1)(b).

Again, in considering whether a risk of the specified kind is an unacceptable risk, I must take into account the surrounding circumstances, as defined.[10] I must also consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[11]
[10]Bail Act, s 4E(3)(a).
[11]Bail Act, s 4E(3)(b).

Given that the applicant has been charged with family violence offences,[12] I must also consider whether, if he were released on bail, there would be a risk that the applicant would commit family violence and whether that risk could be mitigated by the imposition of a condition or by the making of a family violence intervention order.[13]
[12]Defined in s 3 Bail Act.
[13]Bail Act, s 5AAAA.

Further, I am to apply and interpret the Bail Act having regard to the following guiding principles recognised by Parliament:[14]

(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.

[14]Bail Act, s 1B.

History of Family Violence Intervention Orders

The complainant with respect to all charges, except the s 474.19 Criminal Code charge, is the former partner of the applicant. Together they have three children. They separated in April 2014 at which time an interim FVIO was granted listing the applicant as the respondent and the complainant and the three children as protected persons. That order prevented all contact.

On 2 July 2014 a final FVIO was made. That Order, which did not have an expiry date, prevented the applicant from committing family violence or damaging property, but did not prevent contact between him and the protected persons. That Order was deemed a national Domestic Violence Order on 25 November 2017.

The complainant and the applicant then lived separately, with the applicant having regular access to his children. The complainant and the applicant rekindled their personal relationship in about November or December 2016. They resumed cohabitation in March 2017, but within about a week of that move, their relationship again ended. Thereafter they continued to live with their children in the same house, but were separated under the one roof until 20 November 2017.

In January 2018 the complainant and the children relocated to Queensland.

On 13 July 2018, following the arrest of the applicant, a further interim FVIO was granted in favour of the complainant and the three children. That Order prevents all contact and remains on foot.

The Alleged Offending

Incident 1 – charges 6 and 7

On a day in March 2017, the complainant and the applicant were both going to sleep in the same bed. After she had laid down, the applicant, who was wearing only underpants, rolled over and got on top of the complainant and forcibly pulled down her pyjama pants down. The complainant screamed ‘stop’ and ‘get off’ and tried to pull up her pyjama pants, but the applicant grabbed her arm, holding it above her head. He used his other hand to insert one or two fingers into her vagina.

The applicant then removed his underpants, exposing his erect penis. The complainant rolled off the bed and onto the floor, but the applicant grabbed her and attempted to pull her back onto the bed. The complainant was able to break free of the grip and leave the room.

Context and Complaint Evidence

The complainant alleges that the applicant raped, or attempted to rape, her on a weekly basis from that point on, often using his weight to hold her down as she yelled for him to stop. The penetration was either digital or penile. Given the regularity and frequency of these incidents, the complainant is unable to particularise them all. When she attempted to resist, the applicant would hold her wrists above her head. On occasions she felt helpless and did not attempt to physically resist.

The complainant alleges that this behaviour escalated in July 2017 after a period during which she had refused consensual sex with the applicant. She states that she disclosed the behaviour to the mother of the applicant, Ms Furlong, who told her words to the effect of ‘when they want to do it just lay there and let them do it and then they are done’. Police have not obtained a statement from Ms Furlong and, at the hearing of this matter, it was said that the making of this complaint would be disputed at trial. Police have obtained a statement from the sister of the complainant confirming that a complaint about rape had been made by the complainant to her at about the same time.

Incident 2 – charges 8 and 9

On an occasion between 1 July 2017 and 31 August 2017 the applicant had been drinking alcohol before he and the complainant had a verbal argument in the kitchen. The applicant grabbed the complainant by the throat and pushed her up against the fridge. He placed his thumb and fingers around her throat, causing her to make ‘an involuntary choking noise’. That grip lasted for about 5-10 seconds. The complainant was unable to breathe and felt pain to her throat.

Incident 3 – charges 10 and 11

On a day in September 2017 the complaint moved to open the passenger door of the applicant’s car. The applicant grabbed the complainant and pulled her back with force, pushing her to the ground.

Incident 4 – charges 12 and 13

On an occasion in September 2017 the applicant used an implement to damage the charging points of the complainant’s mobile telephone handset. The phone, valued at approximately $1,000, was damaged beyond repair.

Incident 5 – charges 1 to 5

On 22 September 2017, the applicant entered the complainant’s bedroom and climbed onto her back, using his weight to hold her down. The applicant, using one hand, grabbed the complainant’s arms and held them tightly above her head. The applicant pulled down the pyjama pants of the complainant and inserted his fingers into her vagina. He then penetrated the complainant’s vagina with his penis. That penetration lasted some minutes while the complainant pleaded with him to stop.

The incident woke one of the children who came to the room. Eventually the complainant was able to break free and leave the room to comfort the child.

This incident was audio recorded by the complainant on her mobile telephone handset. The complainant told the applicant that she was going to record what was about to happen before anything happened. The audio was played to the court on this application. The complainant can be heard telling the applicant to ‘stop’ or ‘get off’, with increasing distress, in excess of 70 times. The applicant can be heard saying, variously, ‘how come you only have sex when you want to’, ‘how can you have sex with me one time’ and ‘I’m not hurting you, stop it’. When the complainant told the applicant that one of the children was awake, he replied ‘don’t let him hear’.

Incident 6 – charges 14 to 16

On 25 September 2017 the applicant again entered the complainant’s bedroom and laid on top of her, holding her down with his weight. Again, in anticipation of what was about to happen, the complainant pressed the record function on her mobile telephone handset.

The applicant then grabbed both of the complainants writs with one hand and used the other to pull down her pyjama pants. The applicant was naked and inserted his fingers inside the complainant’s vagina, as she struggled to free herself. The applicant then attempted to insert his penis into the complainant’s vagina but ejaculated on her stomach before being able to achieve full penetration. The complainant wiped the ejaculate from herself with a towel and left.

The transcript of the audio recording notes the applicant as saying ‘have sex with me’ and the complainant telling him to get off. Later, the transcript reveals the complainant saying ‘… fucking rapist get off me … get the hell off me’ and the applicant replying ‘it’s not rape’.

When the complainant later that day attempted to explain the trauma the applicant caused her, he simply told her to ‘fuck off’.

Incident 7 – charges 17 to 19

On a day between 1 August 2017 and 30 September 2017, the complainant was in the shower when the applicant walked in completely naked. The complainant attempted to get out of the shower and cover herself with a towel, but was cornered by the applicant and dropped the towel. The applicant grabbed the complainant with one hand on her upper back and the other on her front, forcing her to bend at the hips. The applicant attempted to insert his penis into her vagina, but the complainant was thrashing around. She screamed at him to stop.

The attempt to penetrate the complainant’s vagina lasted for about two minutes before the complainant broke free and ran to her bedroom. The applicant followed her and pushed her face down onto the bed. He climbed on her back and held her face down into a pillow. The applicant then inserted his fingers into the complainant’s vagina. He stopped after the complainant repeatedly screamed ‘help me’.

Incident 8 – charges 20 to 22

On an occasion between 1 August 2017 and 30 September 2017, the complainant was lying on a couch in the lounge room. The applicant got on top of her and tried to take her pants off. The complainant told the applicant to go away and that she was not going to have sex with him. The applicant pulled the complainant to the floor, so that her body was bent over the couch. He removed her pants to below her knees and inserted his fingers into her vagina.

The complainant’s screams to ‘stop’ and ‘get off’ woke one of the children, who yelled from his room ‘get off her dad’.

Charge 24

Between 1 March 2017 and 30 March 2018 it is alleged that the applicant stalked the complainant.

Charges 25 to 61 and 63 to 64

Following the arrest of the applicant on 4 July 2018, police forensically examined his mobile telephone handsets. As a result, the FVP Act charges were laid with respect to verbal and economic abuse, as well as controlling behaviour. The mobile phone handset of the applicant also contained a reoccurring task which read ‘kill [the complainant] – crazy eyes’.

About 1200 text messages demonstrating abusive and controlling behaviour were identified. It is sufficient to illustrate the nature of these messages by the following examples, which although are selective, are in chronological order:

· get fucked you fuckn bitch how could you youve completely fucked it now I cant fuckn belive it fuck you;

· Fuck you i 100% know it you,an youve piss me off just before I speak to dhs you idiot your a fuckn liar an all you do is make pain for me ive fuckn had this you can get fucked i suffer everyday anyway so i dont give a fuck anymore;

· No i didn’t rape you an now fuckn stop i did nothing ffs stop being a bitch;

· An i really want to have sex with you i will help alot more if you do an that way you get more help but your also left alone the way you want it;

· Youve been seeing someone that long you’ve already had him around my boys an spoke about how you an him are going to handle my fucking kids around me. YOUVE HAD ANOTHER BLOKE AROUND MY BOYS ALREADY. You heartless bitch i never ever want to see or speak to you again how fuckn could you I just told you the day ive had an you turn around an tell me that i cant belive this;

· An i hope your still gunna have sex with me;

· I really wanna have sex;

· An when i get there you gotta have sex with me then an then when you come out here to pick them up;

· An we have sex now an later that’s fair i recon; and

· I hope one day you get this pain ive got.

In addition to the text messages, other behaviours are relied upon with respect to these charges.

On 20 November 2017, the complainant moved to a different address from the applicant. She had accrued significant debt as a result of unpaid bills at the previous property shared with the applicant. When the complainant asked the applicant to contribute to payment of the debt, the applicant said he would only do so if she had sex with him. Feeling she had no option, the complainant agreed. The applicant subsequently paid her $80.00.

On or about 3 or 4 January 2018 the complainant needed to attend a medical appointment and asked the applicant to watch the children. The applicant refused to do so unless the complainant had sex with him. Feeling devoid of choice, the complainant agreed. The applicant told her that she had to have sex with him again when she returned to collect the children. She refused.

Between 13 and 16 January 2018, the complainant asked the applicant to give her the birth certificates of the children in order for her to move with them to Queensland. The applicant refused to do so unless the complainant had sex with him. As she was moving in two days and perceiving no other option, the complainant agreed.

On about 29 March 2018, the applicant drove to Queensland to be closer to the children.

Charge 62

On 21 June 2018 the applicant used his mobile telephone handset to gain access to child pornography material on the internet. He performed Google searches for terms such as ‘free underage porn’ and ‘young jailbait porn’ and on one particular website performed searches for items such as ‘cute tiny young amateur’ and ‘youngest tiny amateur jailbait’. The applicant took screen captures of a number of websites. The material depicts children, apparently under the age of 18 years, posing in a sexual manner or engaged in sexual activity.

The Applicant’s Background

The applicant is 32 years of age. He was born and raised in country Victoria. He commenced a plastering apprenticeship aged 16 years and completed it about two years later. He worked in that field, on and off, until his departure for Queensland.

The applicant has a criminal history dating back to 2011. The last prior conviction was recorded on 2 July 2014. On that date the applicant was sentenced with respect to charges of unlawful assault, criminal damage, wilful damage, failure to answer bail, contravention of a FVIO and persistent contravention of a FVIO. The complainant in those matters is the same as in the current charges.

Applicant’s Material and Contentions

The applicant relies upon two affidavits of his solicitor, affirmed on 3 August 2018 and 17 September 2018. Additionally, counsel for the applicant filed a written outline of submissions. The matters relied upon to establish a compelling reason why the continued detention of the applicant is not justified are:

(a) The ‘limited’ nature of the prior convictions.

(b) That the present incarceration is the applicant’s first significant time in custody.

(c) That he has family support, an offer of work and a stable residence at his mother’s house. His mother gave evidence to that effect on the application and also indicated a willingness to give an undertaking, upon the release of the applicant, that should she become aware that the applicant breached a condition of bail she would contact police. A letter offering plastering work, as and when it is available, was tendered.

(d) That he has been assessed as suitable to participate in the CISP Remand and Outreach Program.

(e) The difficulty of progressing Family Law Act 1975 proceedings from custody.

(f) The delay, of unknown duration, before any committal proceedings and subsequent trial. As noted above, the matters are listed for committal mention on 4 October 2018 and, it was submitted, it is unknown when the committal would be listed.

In oral submissions, counsel for the applicant also relied upon a challenge to the strength of the prosecution case and evidence that any risk of reoffending, if granted bail, could be ameliorated by appropriate conditions as also relevant to the compelling reason decision. In effect, counsel submitted that in the context of the delay, the other factors in combination were sufficient to establish compelling reason.

With respect to the unacceptable risk test, counsel proposed a series of bail conditions including regular reporting, a static residence with curfew, CISP engagement and compliance, abstinence from alcohol and illicit drugs and compliance with existing FVIOs as sufficient to render any risk acceptable.

Respondent’s Material and Contentions

In opposition to the applicant’s application for bail, the respondent relied upon two affidavits sworn by a solicitor of the Office of Public Prosecutions on 10 August 2018 and 14 September 2018.

Annexed to the first of those affidavits are a number of documents. One is the police summary with respect to the family violence matters of which the applicant was convicted in 2014. Those summaries detail property damage and assault and that some ten days after the applicant had been served with the final FVIO on 7 April 2014, he damaged property and engaged in a physical confrontation with the complainant. When she attempted to call police, the applicant pulled the phone out of the wall. The FVIO was varied on 19 April 2014 to prevent the applicant from approaching or remaining within 5 metres of the complainant. On 20 April 2014 he entered the house of the complainant, took her mobile phone and told her that if she did not give him money, he would not return the phone. The applicant then did not leave when requested to do so.

Another document annexed to that affidavit is written by the informant and titled ‘reply to defence affidavit’. In that document the informant writes that telephone analysis shows that illicit drug use by the applicant is much more frequent than he has disclosed. Evidence of his use of methylamphetamine, amphetamine, ecstasy/MDMA, cocaine and cannabis extends between November 2017 to June 2018. He is also a daily, heavy consumer of alcohol. The informant states that his enquiries reveal that a two or three day committal could proceed in January 2019. The informant states that it is his opinion that the applicant presents a significant risk of failing to appear on bail and breaching the FVIO. The current charges average 46 breaches of the order per week and, in some weeks, the number was as high as 109. The informant is of the belief that the applicant knows the present whereabouts of the complainant.

The informant gave evidence and was cross examined on the application in accordance with that information and those beliefs.

In oral submissions counsel for the Director emphasised the importance of s 5AAAA of the Bail Act. She said that the alleged offending is serious, persistent and violent and the applicant has demonstrated a complete disregard for court orders. He was willing to sexually offend both in front of his child and when he knew an audio recording was being made of his behaviour. The 2014 offending was also persistent and violent. Any delay that might be experienced in having the matter listed for hearing was not, in combination with the other matters, sufficient to establish compelling reason.

Further, it was submitted that the risk of him failing to appear and commit further offences if admitted to bail was unacceptable and that no measures were enough to ameliorate that risk.

Analysis

Considering s 5AAAA(2)(a) of the Bail Act, there is a risk that, if the applicant were released on bail, he would commit family violence. The evidence of the 1200 text messages sent to the complainant over 7 months between September 2017 and March 2018 shows an intensity of purpose that pays no regard to the effect of the behaviour upon the complainant nor court orders. And the evidence that indicates that the applicant was twice prepared to continue a sexual offence even in the knowledge that his actions are being audio recorded again demonstrates a complete indifference to the complainant as well as a sense of entitlement.

Further, the prior convictions of the applicant for matters of family violence indicate a history of repeated disregard for the authority of a court and the welfare of the complainant.

I am not satisfied that that risk of family violence, were the applicant released on bail, could be sufficiently mitigated by the imposition of a bail condition that the applicant was to comply with existing FVIO.[15] This is so even though the informant agreed in cross examination that he is in regular contact with the complainant and he would expect her to tell him if she had been contacted by the applicant.
[15]S 5AAA(2)(b)

There is nothing in the history of the applicant’s behaviour, over quite some years, towards the complainant and in the face of multiple court orders that provides any foundation for optimism that the applicant would desist from family violence if released.

It follows that, in all the circumstances, I am not satisfied that the applicant has shown a compelling reason why his continued detention is not justified.

Notwithstanding three examples of the applicant’s challenge to the Crown case highlighted during the cross examination of the informant,[16] I am of the view that the Crown case is accurately described as strong. The other matters relied upon by the applicant detailed in paragraphs [48] and [49] above are not sufficient to establish compelling reason, even in the context of the present uncertainty as to the listing of the committal.
[16]These were that the police summary discloses no evidence relevant to charge 14 – rape (in response to which the informant stated that he would need to check the complainant’s statement); that there was no corroboration from the applicant’s mother that the complainant complained to her of rape in July 2017; and that the VARE of the child who witnessed the alleged digital rape in charge 20 records him as saying ‘sometimes it’s okay to tell a lie’ (to which the informant said the child was also asked whether or not he would tell the truth in this matter).

Additionally, while the bail conditions proposed by the applicant might go some way to alleviating the risk that the applicant might not answer bail, I am not persuaded that any conditions I might impose would alleviate the risk that of the appellant offending while on bail. Rather, to the contrary, given the applicant’s history, I am persuaded that there is an unacceptable risk that the applicant, if released on bail, would commit further offences while on bail, endanger the safety or welfare of other persons and interfere with a witness or otherwise obstruct the course of justice.

Conclusion

The applicant’s application for bail must be refused.

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Citations

Re Application for Bail by Roberts [2018] VSC 554

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Re Ceylan [2018] VSC 361

[2018] VSC 554

21 September 2018