Re Guirguis
[2018] VSC 430
•16 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0140
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application by Carl GUIRGUIS | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 July 2018 |
DATE OF JUDGMENT: | 16 July 2018 |
CASE MAY BE CITED AS: | Re Guirguis |
MEDIUM NEUTRAL CITATION: | [2018] VSC 430 |
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CRIMINAL LAW – Application for bail – Charges of rape, rape by compelling sexual penetration, sexual assault, making a threat to kill – Applicant had prima facie entitlement to bail – Bail refused – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D Trood | Ellinghaus & Lindner |
| For the Respondent | Ms J Piggott | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 9 March 2017, the applicant was charged with the offence of threatening to kill in relation to events alleged to have occurred on 6 March 2017. During a conversation between the applicant and his friend, the third complainant, the applicant indicated that he was intending to kill his children.
On 5 May 2017, the applicant was charged with rape (four charges), rape by compelling sexual penetration, sexual assault, and making a threat to kill. The offences are alleged to have been committed against the first and second complainant on separate occasions.
Thus, the charges before the Court relate to events alleged to have occurred on three separate occasions between 17 January 2016 and 6 March 2017. They involve the alleged rape of the applicant’s ex-wife, the first complainant, a protracted series of sexual offending (including charges of rape) against a childhood friend of the applicant, the second complainant, and the threat to kill the applicant’s children, made to the third complainant.
The applicant was arrested on 9 March 2017 and has been in custody since that date.
At the time of the alleged offending the applicant was the subject of a community correction order (CCO). The CCO was imposed on 25 January 2017 following his pleas of guilty to a series of offences against the first complainant.
On 16 May 2017, a final family violence intervention order was granted at the Sunshine Magistrates’ Court, naming the applicant as the respondent, and the first complainant and her children as the affected family members (AFMs). This remains in effect until further order. Additionally, a personal safety intervention order was granted naming the applicant as the respondent, and the second complainant and her daughter as the AFMs. This order expires on 16 May 2022.
The applicant has previously applied for and been refused bail twice in respect of the present charges in the Melbourne Magistrates’ Court; first on 20 June 2017 and then on 19 December 2017, following the conclusion of the committal proceedings. The grounds for the refusal were that the applicant posed an unacceptable risk of endangering the safety and welfare of members of the public, and that of interfering with witnesses or otherwise obstructing the course of justice.
The matters are next listed for a final directions hearing at Melbourne County Court on 23 August 2018, with a trial to commence on 22 October 2018.
On 18 May 2018, the applicant filed an application for bail at this Court. The application is supported by an affidavit sworn by the applicant’s solicitor, Jack Scott Dalziel, dated 18 May 2018.
The applicable law
As the application was made on 18 May 2018, recent amendments to the bail legislation do not apply. Accordingly, pursuant to section 4(1)(b) of the Bail Act 1977 (‘the Act’), the applicant has a prima facie entitlement to bail. Notwithstanding this entitlement, by virtue of s 4(2)(d) of the Act, the Court shall refuse bail if satisfied that there is an unacceptable risk that the applicant would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, endanger the safety and welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice in relation to himself or any other person. It is well accepted that the onus of establishing ‘unacceptable risk’ lies with the respondent.
The alleged offending
The following discussion sets out a summary of the allegations before the Court.
Incident one – the first complainant
The applicant and first complainant were in a relationship between 2005 and May 2016, and were married at the time of the alleged offending. They have two sons together, aged five and seven.
On 17 January 2016, the applicant was in his bedroom at his residence, while the first complainant and two friends, including the second complainant, were socialising in the backyard. The second complainant entered the house to go to the bathroom, at which time the applicant told her that he wanted to see the first complainant. Shortly after, the first complainant received a text message from the applicant instructing her to come inside to their bedroom.
The prosecution case is that the first complainant went to the bedroom where the applicant was lying on the bed. He allegedly pulled his erect penis out of his pants and said, ‘suck it, you big mouth slut – this is what you get for being a big mouth cunt and telling everyone our problems’. The first complainant, feeling ‘extremely petrified’, performed oral sex on the applicant before he ejaculated into her mouth and told her to ‘fuck off back outside, you slut’.
While the first complainant was performing oral sex on the applicant, she was allegedly threatened by the applicant, who told her that he and his friend ‘Phil’ would film themselves having a ‘three-way’ with her and put it on the internet as punishment for her being ‘a big mouth slut’. The first complainant returned to the backyard and was observed by the second complainant and her friend as ‘white and shaking’. After the second complainant left, the first complainant confided in her friend regarding the incident and asked her to stay the night due to fear of being sexually assaulted by the applicant and his friend ‘Phil’.
The applicant is charged with rape in respect of this incident.
Incident two – the second complainant
The applicant and the second complainant have known each other for approximately 30 years, having lived in the same neighbourhood as children and sharing mutual friends. The second complainant’s children are friends with the applicant’s children, and the second complainant and her children used to regularly attend the applicant’s residence and spend time with the first complainant at play centres and parks.
On the evening of 27 May 2016, the second complainant awoke to find the applicant standing in her bedroom, having gained entry to her home through an unlocked front door.
The prosecution alleges that the applicant began asking the second complainant to have sex with him, saying things to the effect that, ‘if you were my friend, you would do this for me’, and, ‘you have to do this for me as a friend’. The second complainant repeatedly refused, however, the applicant pointed to the bedside table and said, ‘I know what’s in that drawer’. The second complainant, who had previously told the applicant that she kept a knife in this drawer, was fearful that the applicant may harm her or her children.
The applicant allegedly began touching the second complainant’s vagina through her pyjama pants, to which she responded, ‘no’, to no avail. The applicant told the second complainant to get her ‘sex toys’ out and begin using them on herself, which she did, before the applicant picked out a large rubber dildo and inserted it into her vagina, causing extreme pain. The applicant, despite repeated objections, then made the second complainant use a vibrator and make ‘noises’ for him. Meanwhile, the applicant filmed her on his mobile phone and stroked his erect penis through his pants. The applicant then approached the second complainant and used a ‘Pump’ water bottle to squirt water into her vagina, before pulling his pants down and masturbating. He then told the second complainant to ‘suck my dick’ before forcing his penis in her mouth. The applicant ejaculated in the second complainant’s mouth and made her swallow his semen.
The applicant is charged with rape (three charges); sexual assault; and rape by compelling sexual penetration in respect of this incident.
Incident three – third complainant
The applicant and the third complainant, have known each other for approximately 15 years, having met through one of the applicant’s friends, with whom the third complainant had been in a relationship with at the time. In February 2017, the applicant contacted the third complainant seeking accommodation that would allow him to be closer to work. The third complainant agreed and the applicant began staying at her house.
On a number of occasions in the week leading up to 6 March 2017, the applicant expressed to the third complainant that he could not believe the first complainant had taken his children, and that ‘she knew what he would do if she took his children away from him’.
The prosecution case is that on the evening of 6 March 2017, the applicant told the third complainant that he had a plan to hire a car and drive to his children’s school, where he would wait outside and follow them home. The applicant allegedly stated, the first complainant ‘is going to feel the pain that he felt and she would feel it for the rest of her life’.
On at least two additional occasions, the applicant expressed to the third complainant that he would not be coming back, and that he would not be going to jail. The applicant told the third complainant that he had been in contact with VicRoads to identify the car the first complainant drove.
On 8 March 2017, in the presence of the third complainant’s 12-year-old daughter, the applicant allegedly asked the third complainant to get him a gun, but would not tell her what the gun was for. The third complainant’s daughter is a witness in the prosecution case, and gives evidence of hearing the statement of the applicant.
Following this conversation, the third complainant went to the house of her neighbour and expressed concerns regarding the aforementioned conversations. The third complainant then contacted ‘1800RESPECT’ and the second complainant, reporting what the applicant had told her.
The second complainant then made contact with the applicant’s father to obtain contact details of the first complainant’s parents, however, he would not assist. She ultimately obtained these details through ‘White Pages’. The second complainant warned the first complainant’s mother that she needed to get the first complainant out of the house, as the applicant knew where she was living. The applicant’s mother subsequently reported this information at Doncaster Police Station.
On 9 March 2017, the applicant was remanded by the Critical Incident Response Team and charged with making a threat to kill.
Relevantly, the conduct alleging a threat to kill occurred only six weeks after the applicant had been released from custody on 25 January 2017 on a CCO, following his pleas of guilty to a series of offences against the first complainant. These offences included recklessly causing injury, criminal damage, stalking, contravening a family violence safety notice, contravening a conduct condition of bail, contravening a family violence intervention order and committing an indictable offence whilst on bail. It appears that the assault involved grabbing the first complainant by the hair and pulling some of her hair out, clawing at her face, smashing a mobile telephone and verbal abuse. The applicant filmed some of these events over the duration of an hour, with the first complainant in a highly distressed state.
It might also be noted that the alleged offence of making a threat to kill occurred after the applicant’s release from the Hader Clinic in late January 2017.
Additionally, the offending against the first complainant, alleged to have occurred in late May 2016, was close in time to the offending now alleged to have occurred in respect of the second complainant, on or about 27 to 28 May 2016.
The applicant’s background
The applicant is 43 years of age. He and the first complainant were married at the time of the alleged offending, and had been for approximately 10 years. They have two sons together, however, the applicant currently has no contact with his children as a result of the present charges against him. He is supported by his parents, who reside at Lake Wendouree.
The applicant has a long-standing history of illicit drug use, however, reports that he has been ‘illicit drug free’ since late May 2016.
The applicant has a criminal history dating back to 2007, involving drug-related offences, offences of storing an unauthorised explosive, possessing ammunition without a licence and using an unregistered motor vehicle.
The applicant’s contentions
The applicant contends that the following matters are established by the evidence and support the grant of bail:
1.the applicant has a stable, static address at his father’s small cheese farm in Harkness, with his father proposing to live full time at the property;
2.the applicant is strongly supported by his parents;
3.the applicant has ties to the jurisdiction, having always lived in Melbourne and having his parents and only brother residing in Victoria, although he is said to have ‘negligible contact’ with his brother;
4.the applicant has a strong employment history, and will be financially supported by his parents pending gainful employment;
5.the applicant’s parents are prepared to offer a ‘substantial’ surety, and would fulfil responsibilities in respect of the observance of other bail conditions;
6.the applicant’s mental health is suffering whilst in custody, and his release would allow him to undergo regular counselling with Dr Jeffrey Cummins;[1] and
7.the applicant is willing to abide by any conditions of bail that the Court considers appropriate.
[1]Particularly, the applicant experiences symptoms of an adjustment disorder with mixed anxiety and depressed mood. Save for taking antidepressant medication ‘Pristiq’, the applicant is not otherwise receiving mental health treatment whilst in custody.
Further, it was submitted that the alleged offending occurred at a time when the applicant was a regular drug-user. The defence submits that situation has now changed, and the applicant is drug free.
It was also submitted that the prosecution case is not ‘particularly strong’, and the applicant has made no admissions regarding the allegations and denies the charges. The applicant challenges the credibility of the third complainant, submitting that she is a long-term drug-user.
Additionally, the applicant submits that the second complainant’s allegations are inconsistent with her care and support of him between the time of the alleged offending against her in May 2016 and when she first made allegations against him to police, 12 months later. In relation to the first complainant’s allegations, the applicant highlights the period of more than one year between the alleged offending and the allegations being made. The applicant submits that the first complainant had many opportunities to make the allegations, particularly as she made other allegations against him during this period.
As to the issue of whether the applicant is an unacceptable risk of committing offences or interfering with witnesses whilst on bail, the applicant contends that there is no evidence to support these allegations. The applicant submits that the risk of him attempting to locate and interfere with his ex-wife and children was first alleged when charged with the present offences, now 15 months ago, and no longer carries any weight.
The applicant cross-examined the informant in the hearing before me and pointed out that the allegation of the threat as described by the witness, the third complainant, did not comprise direct evidence, but rather was indirect and matter of inference. It was pointed out, and agreed by the informant, that at that stage of her life, the witness was a proven user of amphetamines and had a history of telling lies to police about the extent of that use.
The applicant further argues that the imposition of conditions can ameliorate matters of unacceptable risk.
The respondent’s contentions
The respondent opposes bail, submitting that the applicant poses an unacceptable risk of endangering the safety and welfare of members of the public, particularly his children and the complainants, and interfering with witnesses or otherwise obstructing the course of justice.
In support of this, the respondent notes that the applicant has exhibited an escalating level of family violence over time, which has led to real concerns for the lives of the first complainant and her children. This issue was addressed in the statement of evidence of the informant, Detective Senior Constable Merran Faure, supplemented by oral evidence before me. The informant also gave evidence that the first complainant was distraught and anxious at the prospect that the applicant might be granted bail. Similarly, the third complainant has expressed strong concerns about the safety of herself, as well as her two children, one of whom is a witness in the case against the applicant. The applicant is aware of where they reside.
The respondent notes the applicant has a relevant criminal history, including contravening a family violence safety notice, contravening a family violence intervention order (intending to cause harm or fear), and committing an indictable offence whilst on bail. The respondent submits that this history demonstrates a ‘blatant disregard’ for court orders.
In response to the applicant’s contentions regarding weaknesses of the Crown case, the respondent notes that the applicant has been committed to stand trial based on the strength of the complainants’ evidence against him.
Additionally, the respondent strongly rejects the contention that the applicant is no longer an ‘unacceptable risk’ after having spent 14 months in custody. Conversely, the respondent submits that the applicant, if released on bail, would pose a real threat to the safety and welfare of his children and the complainants. This submission is supported by the ‘Common Risk Assessment Framework’ (‘CRAF assessment’), completed by the informant, which ‘aims to identify and respond to risk factors associated with family violence’. The respondent relies on the evidence of the informant as to the use of the CRAF assessment to support the argument that the applicant is an unacceptable risk. In evidence, the informant highlighted the various factors set out in the CRAF assessment tool that enable an assessment to be made. These include an escalation of violent behaviour, controlling and intimidating behaviour towards multiple victims, breach of an intervention order, threats to kill children, threats to commit suicide, and stalking.
The respondent notes that the applicant has displayed attributes common to those who commit filicide, including controlling and jealous behaviours, expressed desires for revenge against the mother of their children, stalking and threats of self-harm. Further, the respondent notes that the complainants, each of whom have known the applicant for a significant period of time, all independently believe him to be capable of killing his children. Upon being informed of the present application, each of the complainants appeared ‘extremely anxious and distraught’, and expressed fears for their safety, which were aggravated by the applicant knowing their respective addresses.
The respondent submits that, irrespective of any of the applicant’s proposed supports, he remains a real risk to the safety of his children and the complainants. The respondent contends that no conditions of bail could ameliorate this risk. In her evidence, the informant strongly expressed that nothing could protect the complainants and their children, and that a reporting condition would not alleviate the risk. The informant further stated that intervention orders would be insufficient as the applicant has a history of breaching the orders in place.
Discussion
Unsurprisingly, considerable time was devoted in this application to discussing the possible risks attaching to the applicant should he be granted bail.
The CRAF assessment and HCR-20
As described above, the informant gave evidence about the use of the CRAF assessment of risk factors of future violence pertaining to the applicant. The informant was cross-examined about the tool and her use of it. It was conceded that she had not received training in its use; that she had used the police briefs against the applicant to acquire information for the purposes of the assessment; and that she had interrogated the police LEAP database to gain further information provided by other police officers about the applicant. This additional information apparently included general intelligence about the applicant, as well as allegations about specific alleged incidents.
The CRAF assessment takes place without any benefit that might be achieved by an interview with the alleged offender. The purpose of the CRAF assessment appears focussed towards providing a fast and presumptive indication about possible or likely risk factors regarding the use of future violence by an assessment subject. As such, it appears to be a very useful and important screening tool. In applications such as the present one, however, my opinion is that a cautious approach should be taken in forming firm conclusions regarding risk factors based on the CRAF assessment. There are limitations on the ability of the present curial process to test the veracity and weight of the information used as source material for the CRAF assessment.
On the other hand, the HCR-20 is an apparently well-recognised and accepted risk assessment tool which involves an interview of an alleged offender by a properly qualified and trained professional, applying expertise, skill and experience to the task. If applied properly and conscientiously by a qualified psychologist, it seems more likely to provide a reliable assessment than the CRAF assessment, and is likely to be able to be acted upon with a higher degree of confidence. The expert can be tested as to his or her expert opinions formed after having applied the assessment tool. The HCR-20 assessment appears to perform a different type of role to the CRAF assessment.
In its final analysis, the Court will be most effectively assisted by the examination of contested issues through the calling of admissible evidence, with the application of common sense to a well-established process of testing the evidence by competent Counsel, supplemented by submissions.
Mr Jeffrey Cummins, a forensic psychologist, gave evidence at the hearing before me. He interviewed the applicant on two occasions, and wrote an initial report, and a supplementary report, and provided a psychological assessment of the applicant including the application of the HCR-20 tool. In his evidence, Mr Cummins explained the nature of the tool and the way in which it is designed to be deployed. He gave evidence that it is widely used in Australia to assess the future risk of violence, and is specifically endorsed by Forensicare. Mr Cummins said that to apply the tool properly, the user of the HCR-20 is required to obtain a detailed history from the person concerned, and this is what he did with the applicant. He described HCR-20 as being a ‘clinical assessment tool’. I have no reason to reject this evidence.
Ultimately, the opinion of Mr Cummins was that that the applicant’s risk of committing further violence was closely connected to his abuse of drugs. He concluded that, ‘I do not regard him as representing an ongoing risk to any of the three complainants or to either of his sons. At interview he has repeatedly expressed his unerring love for his sons’. Mr Cummins regarded the primary risk factor for the applicant would be if he returned to drug use.
The applicant points to the assessment of risk factors and argues that the Court should rely on an up to date risk assessment, as performed by Mr Cummins, and not on the CRAF assessment that was premised to a considerable degree on the applicant’s behaviour in 2016. However, it is clear that in resolving this application, it is also necessary to consider the applicant’s behaviour in 2017 when the alleged threat to kill was made.
In my opinion, the CRAF risk assessment has an important role to play in the evaluation of risk factors when providing a presumptive risk assessment for immediate operational decisions. However, without further evidence on the role of the CRAF assessment, I am not prepared to conclude that the results of a screening assessment of this kind are of significant persuasive value in forming confident conclusions as to unacceptable risk factors in this bail application.
I have taken the CRAF assessment into consideration in a cautious way. In resolving this application I have not placed a great deal of weight on its conclusions.
Conclusions
The offending alleged against the applicant is of a very serious nature. If proven, the applicant has engaged in escalating sexual violence of a disturbing kind against two females, one his wife, the other a long term friend. The allegation of offending against his friend, the second complainant, occurred in the middle of the night after he appeared unannounced in her bedroom, having entered her home whilst she was sleeping. The applicant then filmed a series of events that took place. Both complainants assert they were very frightened by his behaviour, and his abusive, humiliating and violent demeanour. They remain afraid.
In an occasion of violent conduct committed against the first complainant, the applicant also filmed the events in which he significantly degraded and humiliated the victim. The applicant pleaded guilty to charges regarding this conduct in January 2017.
The alleged threat made by the applicant against the lives of his children occurred in the context of violent conduct allegedly committed against the first two complainants. The impact of this threat is further informed by the events said to have occurred in 2016, and takes on a disturbing significance. If the allegation made by the third complainant as to the threats to kill his own children is established, this is a very serious allegation indeed.
It is to be acknowledged that all the outstanding allegations are contested.
It is of particular concern that when the alleged threat was made in respect of his children, the applicant was subject to the CCO granted on 25 January 2017. One of the core conditions of a CCO is that no future offending takes place. The significance of an offence alleged to have been committed soon after a grant of a CCO is clear. The applicant has demonstrated a disdain for orders given by courts in respect of family violence, and is alleged to have engaged in conduct that may well be a breach of a CCO. He has also breached other family violence related court orders.
The applicant argues that the proven offending occurred when he was a drug taker, and now he is drug-free. The applicant highlights his treatment at the Hader Clinic, and subsequent release on 25 January 2017. In response, the respondent alleges the threat to kill occurred after his release from the Hader Clinic when he was supposed to drug-free. Mr Cummins’ evidence was that the applicant informed him that he had not taken drugs since 29 May 2016. The respondent points out that if this is true, the applicant was in a drug-free state when he allegedly made the threats to kill in March 2017. The respondent thus questions the link between drug use and the applicant’s offending as assessed by Mr Cummins, and submits, if the threat was issued when the applicant was drug free, it represents a very serious allegation. The respondent further submits that, regardless of any such link, if the applicant returns to drug abuse, the risk would be heightened to an unacceptable level.
As to the strength of the prosecution case, I have not concluded that it can be described as weak. However, it may not be a compelling one. Counsel for the applicant described the case as ‘not ironclad’. I note that the third complainant does not know the first complainant. Further, the third complainant’s evidence is, to some extent, supported by her daughter, who has been examined at the committal. I am told she appears to have maintained her evidence.
An indictment against the applicant has not yet been filed, and accordingly, it is not yet clear how the Crown case will proceed. It cannot be concluded whether there will be one or multiple trials. Further, the credibility of various complainants’ will be a significant area of attack on the part of the applicant’s defence. It is noted that in respect of the allegations of the threat, the complainant’s daughter will give evidence. In respect of the second complainant, some of the events were filmed by the applicant; and in respect of the events concerning the first complainant, there is likely to be evidence of first complaint led by the prosecution.
As to delay, the matter is listed for final directions in the County Court on 23 August 2018, and for trial on 22 October 2018, a little over four months from now. The applicant has been in custody for a considerable time, but his trial is listed to resolve this year. In the applicant’s circumstances, delay is not a factor that weighs heavily in favour of bail being granted.
As I have observed, the allegations made against the applicant are serious and involve two separate victims, with a third complainant who alleges being told serious threats. The allegations of sexual offending are not only very serious, but involve elements of jealousy, anger, violence, and a high degree of degrading and disturbing conduct against two women with whom the applicant has longstanding personal relationships.
In all of the circumstances, I am not satisfied that there should be a grant of bail in this matter. I accept the respondent’s argument that there is an unacceptable risk that the applicant may commit further offences on bail and is a risk to the safety of his alleged victims and children. I have considered the conditions proposed by the applicant that might attach to a grant of bail, but I am not satisfied that they are such that the risk is reduced to an acceptable level.
Accordingly, I refuse the application for a grant of bail.
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