Re Fayyaz
[2021] VSC 208
•28 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0081
| IN THE MATTER of the Bail Act 1977 | |
| - and – | |
| IN THE MATTER of an Application for Bail by MUHAMMAD FAYYAZ | Applicant |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 April 2021 |
DATE OF JUDGMENT: | 28 April 2021 |
CASE MAY BE CITED AS: | Re Fayyaz |
MEDIUM NEUTRAL CITATION: | [2021] VSC 208 |
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CRIMINAL LAW – Bail – Sexual penetration of a step-child – Alleged offending against 12 year old step-daughter over significant period – Show compelling reason test – Combination of matters relied upon – Applicant 41 years old with no criminal history – Significant delay inevitable before trial - Strong family support and stable accommodation geographically removed from location of complainant – Employment available – Surety of $20,000 – Interim family violence intervention order in place – Availability of stringent conditions to ameliorate risk – Compelling reason made out – Unacceptable risk not established – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Portelli | Michael J. Gleeson & Associates |
| For the Respondent | Mr P Stefanovic | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on charges he faces of sexual penetration of a step-child and sexual assault of a child under the age of 16.
It is agreed between the parties that because sexual penetration of a step-child is an offence contained within Schedule 2 of the Bail Act 1977 (‘the Act’), I must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[1]
[1]The Act, s 4C(1A).
Procedural history
The applicant was arrested and charged on 25 March 2021. Bail was refused by the police on that day. A subsequent application for bail to the Magistrates’ Court was refused on 26 March 2021 on the basis that the applicant had failed to show a compelling reason, and was an unacceptable risk of endangering the safety or welfare of a person.
The next listing date for the matter is on 18 June 2021 at Melbourne Magistrates’ Court for a committal mention. On that date, there will also be an application for a final family violence intervention order (‘FVIO’). An interim FVIO is currently in place, having been made on 26 March 2021. The protected persons are the applicant’s wife (‘AU’), daughter (‘IU’) and step-daughter (‘the complainant’).
The alleged offending
The applicant is married to AU. They have a six year old daughter together, IU, and a newborn daughter. The complainant is AU’s 12 year old daughter from a previous relationship. At the time of the alleged offending, the applicant, AU, IU and the complainant were all residing together at the family home in Wyndham Vale.
In summary, it is the prosecution case that, in late 2019,[2] the applicant began sexually offending against the complainant at times when AU was out of the house. It is alleged that the applicant kissed the complainant, touched her vagina and breasts, forced or tricked her into touching his penis and put his mouth on her vagina. Once the alleged offending commenced, it is said to have occurred regularly, approximately once a month. On the complainant’s account, the applicant made her promise not to tell AU, and told her that the behaviour was ‘normal’. If the complainant refused to participate, she was labelled ‘selfish’ and ignored.
[2]The charge sheets allege offending from December 2020.
In addition to the above, the prosecution rely on the following two incidents as forming part of its case against the applicant:
· On an occasion between January 2021 and February 2021, the applicant called the complainant into the home study and shut the door. The prosecution allege that the applicant kissed the complainant, placed his hand inside her underwear, and then touched and kissed her vagina both internally and externally, notwithstanding the fact that the complainant told the applicant that she didn’t want to ‘do it’. The complainant did not tell anyone at the time as she feared the repercussions toward herself and her family.
· On an occasion between February 2021 and March 2021, the applicant called the complainant into the home study again. Despite the complainant’s resistance, it is alleged that the applicant placed his hand into her underwear again and touched her vagina for approximately 10 minutes. He is then alleged to have kissed the complainant and touched her breasts.
On 25 March 2021, the complainant disclosed the alleged offending to her mother. They reported the matter to police and the complainant subsequently provided a VARE[3] to the police.
[3]Video Audio Recording of Evidence.
That evening, the applicant was arrested and interviewed. He answered no questions relating to the alleged offending.
On 29 March 2021, a search warrant was executed at the Wyndham Vale family home. A number of items were seized, including the following:
· An Apple Watch displaying 147 text messages the applicant sent to AU on 25 March, the day he was arrested. In the messages, he asks AU to call him, says, ‘Don’t punish [the complainant] and the daughter who has not even seen this world’, ‘I won’t do anything’, and expresses that he is ‘sorry’ across multiple messages.
· Men’s clothing: covered in what is believed to be semen, seized from a shelf in the applicant’s wardrobe, separate from his other clothing.
· The complainant’s diary, containing relevant entries from early 2021 with statements including, ‘I finally told him I don’t want to do it anymore’, ‘I only did it because he wanted to and now I don’t want to anymore’, and ‘If he wants to do it he has mama’. In her VARE, the complainant stated she had written about the abuse in her diary but had ripped the pages out. The seized diary shows that pages have been torn out.
Personal circumstances
The applicant is 41 years old and has lived in Australia since 2015. He was formerly a high-ranking officer in the Pakistani Army. Prior to his remand, he lived in the family home in Wyndham Vale. The applicant and AU have been married for approximately nine years, with AU recently giving birth to the second child of the relationship.
The applicant is said to be the sole income provider for the family, and solely responsible for the upkeep of the mortgage on the family home. Before his arrest, he worked full time at Wilson Security as a security guard. The Court was informed that it is expected that the applicant would be able to resume his employment should he be released on bail. His employer is apparently aware of the charges he faces. Victoria Police, however, are taking steps to notify the Licensing and Regulation Division with a view to having the applicant’s licence to work as a security guard revoked, so there is a prospect that this employment will not be open to him.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[4] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[5] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[4]Section 4C(2).
[5]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[6]
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.[7]
[6][2019] VSCA 214.
[7]Ibid [43].
The evidence
In addition to the affidavit and other material before the Court, sworn evidence was led from the respondent, Senior Constable Leah Paterson (‘S/C Paterson’), and from the applicant’s sister, Nada Khalid.
S/C Paterson detailed concerns she had held about previous proposals for a residential address for the applicant should he be released on bail, and a conversation she had had with the owner of the property in Footscray where it was now proposed that the applicant would reside. The fact that this location is some distance from the residence of the complainant and her mother went some way to alleviating the concerns the respondent held that the applicant might inadvertently come into contact with the respondent. She still had some concerns, however, that the applicant might seek out contact. She also attested to the fact that the police intended to make an application under s 465AA of the Crimes Act 1958 for an order requiring the applicant to provide the passwords to the police to enable them to access the electronic devices seized from the applicant.[8] S/C Paterson expressed some concerns that the applicant, due to his technical knowledge, may have the ability to remotely interfere with the contents of his devices, although they remain in police custody. Whilst maintaining her opposition to bail, S/C Paterson detailed some conditions she would seek if bail was to be granted.
[8]Following a discussion about this issue, the applicant indicated, through his counsel, a willingness to provide the relevant passwords, and to have a requirement to do so included as a condition of bail.
Ms Khalid informed the Court that she had made the arrangements for the applicant to be able to live at the Footscray address. She indicated that she would take steps to furnish the property, and would notify police should she become aware of any breaches of bail by the applicant. She offered to provide a surety of $20,000.
The applicant’s submissions
Mr Portelli, for the applicant, relied upon a combination of matters in proof of a compelling reason that would justify the grant of bail in this case. These were:
a) Significant delay before the trial would be heard. On this score, Mr Portelli submitted that with the vast backlog of trials presently in the County Court, due in large part to the disruptions brought about by the COVID-19 pandemic, even with the priority which this trial would attract in view of the age of the complainant, the earliest the trial would get on would be in the latter half of 2022, with a real prospect of it not getting on until well into 2023. There could well be a delay in excess of two years. Mr Portelli submitted that the period of delay in prospect here would be inordinate in the circumstances, and itself be sufficient to amount to a compelling reason. In respect of that contention, he pointed to a number of bail decisions by judges of this Court.
b) The applicant’s lack of criminal history, and the resulting absence of any adverse bail history.
c) The strong family support available to the applicant.
d) The availability of a stable address well away from the location of the complainant. The applicant would have no reason to travel to the area in which the complainant resides.
e) The availability of a surety of $20,000.
f) The availability of employment through Wilson Security. Whilst Mr Portelli acknowledged that there was a prospect this employment might be lost, the brother-in-law of the applicant had offered to assist him to find alternative employment.
g) The fact that the applicant would be certain to default on his mortgage should he be retained in custody.
h) The FVIO in place to provide protection to the complainant and other family members. The applicant would be well aware that were he to have any contact with the complainant or his wife, he would be in breach of the FVIO and would understand the consequences.
i) Any risk posed by the applicant can be satisfactorily addressed by the imposition of strict conditions. Mr Portelli outlined conditions which he submitted may be considered to be appropriate and effective.
Mr Portelli conceded that the alleged offending is very serious, and if proven, would undoubtedly result in a term of imprisonment which would exceed any period on remand. He submitted, however, that the prosecution case, whilst not weak, should not be viewed as a strong one, for a combination of reasons he put forward, including the fact that the evidence of the complainant was unsupported by other evidence. He referred to a previous complaint made by the complainant of having been touched inappropriately by the applicant’s mother, and the fact that the Family Division of the Children’s Court, having considered this material, had nonetheless ordered that the complainant should be returned to the home environment where the applicant and his mother were both living. The implication of Mr Portelli’s submission was that the allegations of the complainant had not been accepted.
All-in-all, submitted Mr Portelli, the Court should be satisfied that a compelling reason in justification of a grant of bail had been established.
On the question of risk, it would be obvious to the applicant that should he in any way approach or contact the complainant or his wife, the consequences for him would be profound. He would not only be in breach of the FVIO, but would also be taking a step which would have the effect of strengthening the case against him. The stringent conditions proposed would be sufficient to ameliorate the risk posed by the applicant to a level where it would not be unacceptable.
The respondent’s submissions
Mr Stefanovic, for the respondent, submitted that the onus resting on the applicant to show a compelling reason had not been discharged. He took issue with the submissions of the applicant attacking the strength of the prosecution case. It may be a word-on-word case, but there was timely disclosure by the complainant to her mother, and very good reasons why the complainant had hesitated for a time before coming forward, as jury directions would make clear. The case, he submitted, was of perfectly adequate strength, and there would be a real prospect of the applicant being found guilty, in which event, condign punishment would be inevitable.
In respect of the likely delay, Mr Stefanovic submitted that it would not be inordinate in the circumstances, and he emphasised that the period on remand would be exceeded by the likely sentence should the applicant be found guilty.
Mr Stefanovic pointed to the interim FVIO now in place, and the resulting requirement to have regard to the considerations contained in s 5AAAA of the Act.
The respondent pointed, also, to the fear apparently felt by the applicant’s wife that he would harm her or the children.
On the question of the risk posed by the applicant, Mr Stefanovic asserted that there would be an unacceptable risk of the applicant endangering the safety and welfare of the complainant and her mother, or interfering with a witness or otherwise obstructing the course of justice. He submitted that the 147 text messages sent by the applicant on the very day of his arrest should cause the Court particular concern, albeit that there was no evidence that any of the messages were of a threatening nature. In addition, he made mention of the matters pointed to by S/C Paterson in her report as increasing the risk posed by the applicant. These included:
· his former occupation as a high-ranking officer in the Pakistani Army, which he had used to instil fear into the minds of his children and wife;
· his controlling behaviour in the past in respect of his wife and children;
· the fact of his having recently taken out an insurance policy on the life of his wife;
· his previous alleged assaults of his wife in the presence of the children;
· his hacking of the mobile phone of his wife, raising the prospect that he would use his skills to monitor or coerce his family should he be released; and
· the fact that should his security licence be revoked, the applicant will have no source of income or financial support.
Analysis
In considering the question of whether the applicant has succeeded in discharging the burden resting on him of proving the existence of a compelling reason which would justify the grant of bail in this case, I have taken into account the surrounding circumstances, which are set out in the non-exhaustive list of matters in s 3AAA(1) of the Act.
In respect of the seriousness of the offending, which was acknowledged by Mr Portelli, I do make the observation that serious though any sexual contact with a child is, and in particular, the penetrative contact of his step-child alleged against the applicant, which would attract a maximum penalty of imprisonment for 25 years, the offending here does not have some of the aggravating features commonly seen. There is not alleged to have been any overt violence perpetrated, although I acknowledge the undertones of violence and coercion present in any instance of sexual contact carried out by a much older parent towards a young child. As I understand the evidence in the application, there is a single instance of lingual penetration of the vagina of the complainant alleged in the context of ongoing touching and other sexual conduct over a period of time. Of course these are serious allegations, but not towards the high end of the spectrum of seriousness of such offending.
Turning to the strength of the case, there is no reason to suppose the case to be a weak one, but on the other hand, it does not have any of the features which would render it a particularly strong one either.
The applicant is a 41 year old man with no criminal history of any sort, and no adverse history of bail. At the time of the alleged offending, he was not subject to any grant of bail or any other court disposition. I consider the good previous history of the applicant, in light of his age, to be a very important matter in this case.
There is an interim FVIO in place, which I take into account as required of me in considering the surrounding circumstances, and also by virtue of s 5AAAA of the Act. I am specifically required by that provision to consider whether, if the applicant was released on bail, there would be a risk that he would commit family violence, and whether such risk could be mitigated by conditions. On that score, I note that there is nothing in the evidence before me to indicate that the applicant on any occasion actually threatened the complainant, or that he has made any attempt since the commencement of his incarceration to contact her or other family members. The prospect of his doing so in future should the opportunity arise cannot be discounted, but it may be possible by the imposition of conditions to ensure there would be little prospect of inadvertent contact, and it would surely be abundantly clear to the applicant that any contact of any sort with the complainant or his wife would undoubtedly be reported and would lead to the certain revocation of bail.
In respect of other aspects of the personal circumstances of the applicant, he is fortunate to be able to rely upon strong family support, in particular, from his sister who has done much to help him and is willing to act as surety to a grant of bail. She has organised a place for him to live, and is clearly willing to assist him financially to get back on his feet. She has given an undertaking to the Court to report any breaches of bail to the authorities. In her position as surety, should bail be granted, she may be well-placed to do so. Furthermore, the applicant presently has a job to go to. Whether that continues to be the case remains to be seen, but there is reason to believe that the applicant is willing to work, and would do so if possible.
I take into account the negative attitude of the wife of the applicant, and, as I understand it, the complainant herself, to a grant of bail.
Turning to the matters set out in s 3AAA(1)(k) and (n), it is clear enough that the applicant would spend a significant period of time in custody awaiting trial should bail be refused. This period may be of the order of two years or so, perhaps more, possibly less. I do not accept that the likely period on remand would, of itself, amount to a compelling reason, but it is a very weighty matter, and of course it is the combination of matters which is relied upon by the appellant.
As for the likely sentence should the applicant be found guilty, there is no doubt that it would be significant, and highly likely to exceed any remand period.
I accept that the stringent conditions of bail proposed by the applicant, in respect of which the respondent has had some input, including a curfew and a geographical restriction prohibiting travel into the City of Wyndham, would go a long way to ameliorating the risk posed by the applicant which is essentially that he may seek to contact, coerce or harm the complainant or other family members. There is actually little evidence suggesting that this is a real concern in the case of the applicant, but I would not lightly dismiss the police concerns that he may seek to do so. Strict conditions would exert strong controls over the applicant, however, bringing it clearly home to him that any form of contact he initiated with the complainant or his wife would have disastrous effects for him.
Having considered all of the surrounding circumstances of this case, I have reached the view that the applicant has discharged the burden resting on him of proving that a compelling reason exists that justifies the grant of bail. Having reached this conclusion on the material before me, I should make it clear that the decision of the learned Magistrate to reach a different conclusion on the same question is entirely understandable.
Turning to the question of unacceptable risk, in respect of which, of course, the burden is on the respondent, whilst it is clear enough that the applicant does pose a risk, in particular because of the knowledge he has that the case against him for very serious offending is almost totally reliant upon the evidence of the complainant, I am not satisfied that the risk would be an unacceptable one, so long as stringent conditions of bail are imposed to control the conduct of the applicant.
Conclusion
For the reasons I have stated, I am prepared to grant bail to the applicant, on the conditions I will shortly announce.
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