Re Guirguis
[2015] VSC 242
•29 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0066
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by CARL GUIRGUIS |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 May 2015 |
DATE OF JUDGMENT: | 29 May 2015 |
CASE MAY BE CITED AS: | Re Guirguis |
MEDIUM NEUTRAL CITATION: | [2015] VSC 242 |
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CRIMINAL LAW – Bail – Whether the applicant represent unacceptable risk – Whether the applicant showed cause why detention not justified – Bail Act 1977, ss 4(2)(d), 4(3) and 4(4)(b) – Bail granted subject to conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G M Hughan | Office of Public Prosecutions |
| For the Accused | Mr I M Hayden | Ellinghaus & Lindner |
HIS HONOUR:
Introduction
Carl Guirguis, the applicant, was refused bail in the Magistrates’ Court at Melbourne on 14 April 2015. He now seeks bail from this Court.
The applicant is charged with one charge of digital-vaginal rape[1] (charge 1); making threats to kill[2] (charge 2); false imprisonment[3] (charge 3); stalking[4] (charge 4); indecent assault[5] (charge 5); recklessly cause injury[6] (charge 7); and unlawful assault[7] (charge 9). Each charge relates to the female victim, embracing a period between 1 December 2014 and 1 March 2015.
[1]Crimes Act 1958, s 38(1).
[2]Crimes Act 1958, s 20.
[3]Common law.
[4]Crimes Act 1958, s 21A(1).
[5]Crimes Act 1958, s 39(1).
[6]Crimes Act 1958, s 18.
[7]Summary Offences Act 1966, s 23.
The respondent submitted that bail should be denied. It was asserted both that there was an acceptable risk that the applicant would commit an offence on bail or interfere with witnesses, and that the applicant was, by virtue of s 4(4)(b) of the Bail Act 1977 (‘the Act’), required to show cause why his detention in custody was not justified.
For the reasons that follow, I would grant bail to the applicant upon conditions that I will later set out.
Summary of the alleged offending
It is necessary to say something about the case that the applicant faces.
According to the summary of the prosecution case attached to the Brief of Evidence, the applicant and the complainant have known each other for about 20 years. They had lost contact for a number of years when the complainant moved from the Melton area, and only reconnected in September 2013.
In October 2014, the complainant was having trouble with her car. She knew that the applicant was a qualified mechanic and sought his ongoing assistance. The applicant introduced the complainant to methylamphetamine (‘ice’), and, as time passed, their use of ice increased.
In her statements to police, the complainant alleges that she accepted an invitation to the applicant’s 2014 Christmas breakup. By the time they arrived, however, the party was over. Later, the applicant took the complainant back to the workshop at Palmerston Street, Melton, ostensibly to collect some car parts.
Once they entered the workshop, the applicant, so the complainant alleges, attempted to kiss her. She rebuffed him. Before she was able to leave, however, the applicant grabbed the complainant, bent her over a vehicle and put her head in the engine bay (charge 9, assault). According to the complainant, whilst so doing the applicant made a comment that he could do whatever he wanted because he was stronger than her.
Following this incident, the applicant — whose behaviour became erratic, abusive and angry — began calling and texting the complainant. It is said that the applicant made threats to expose the complainant’s drug use in an attempt to have her children taken from her. So as to placate the applicant, the complainant began to reply to his messages, sometimes up to 15 times per day.
On Friday, 27 February 2015, the complainant attended the workshop in Palmerston Street at the applicant’s request. According to the complainant, once she was inside, the applicant began yelling and abusing her. When she got up to leave, the applicant yelled, ‘Where the fuck are you going? You’ll go when I say you can go so sit the fuck down’. The applicant slammed the door of the office and forced the complainant to remain there against her will (charge 3, false imprisonment). After eventually being allowed to leave, just as she reached her car, the applicant asked her to return inside. She was in tears and was scared. The applicant momentarily calmed down, before again becoming enraged. It is alleged that after the complainant told him that she was leaving, the applicant threatened that if she left, he would make her life a living hell. After she had left, the applicant attempted to call the complainant on her mobile phone a total of 12 times within a 13 minute period. All of these telephone calls were ignored.
The complainant drove around, not wanting to go immediately home. While she was driving around, the applicant went to her home and spoke with Ronald McCall — who was residing with the complainant at the time — demanding to speak with the complainant. Mr McCall told the applicant that the complainant was not yet home.
When the complainant arrived home, the applicant pulled into the driveway behind her. He then mentioned that she owed him money. The complainant suggested they continue their conversation in the presence of the applicant’s wife. He begged the complainant not to tell his wife. He then asked if the complainant would meet him at some local tennis courts.
When they arrived at the tennis courts, the applicant approached the complainant’s car. He asked her to wind the window down so that they could speak. He asked if the complainant loved him. She responded that she did not. The applicant attempted to again kiss her, but she turned her head. The applicant then began to grope the complainant’s right breast (charge 5, indecent assault). She was afraid and began crying. According to the complainant’s account, the applicant then put his hand up her dress, pushed her underwear to one side and repeatedly penetrated her vagina with his finger (charge 1, rape). She remained silent and unable to move. The applicant then asked the victim to return to the Palmerston Street workshop to have sex. She agreed, but while driving there drove away. The applicant then called the complainant on her mobile phone and made threats that he would kill her if she did not kill herself (charge 2, threat to kill).
On Sunday, 1 March 2015, the applicant began calling and text messaging the complainant (part charge 4, stalking). She ignored these, until she received a text message in the afternoon saying, that ‘[she] can either talk to [the applicant] on the phone or [he will] be around in 10 minutes’. Shortly afterward, the applicant arrived at the complainant’s address, knocking on the front door and demanding to see her. After ignoring requests from Mr McCall to leave, the police were called and attended the scene. The applicant was arrested.
When interviewed by police at Melton Police Station, the applicant basically gave a no comment record of interview and was remanded in custody.
Remand and Previous Application for Bail
On 14 April 2015, a magistrate refused the applicant bail. In so doing, the magistrate found that the applicant presented an unacceptable risk of committing an offence while on bail, and that he had failed to show cause why his detention in custody was not justified.
The bail application first came before the Magistrates’ Court on 24 March 2015, but could not be completed because of the lateness of the day. Quite remarkably, the application was then adjourned for three weeks, until 13 April 2015. That delay is to be deprecated. When an individual’s liberty is at stake, it is unacceptable that such a lackadaisical approach be taken to the disposition of a bail application. Such a situation should not be tolerated.
The application in this Court
The respondent’s position
As I have mentioned, the respondent opposes bail. The grounds for opposition are spelled out in an affidavit of Meagan Sammut, a Solicitor with the Office of Public Prosecutions, sworn 18 May 2015. The grounds are:
(i) the applicant is charged with an offence of stalking within the meaning of section 4(4)(b) of the Bail Act 1977, and is thus required to show cause why his detention in custody is not justified;
(ii) there is an acceptable risk that the Applicant, if released on bail, would commit an offence whilst on bail; and
(iii) there is an unacceptable risk that the applicant, if released on bail, would interfere with witnesses or otherwise obstruct the course of justice.
Further, counsel for the respondent called the informant, Senior Detective Joshua Coy, to give evidence. He related the fear of the applicant held by the complainant, and, given what he saw as the obsessional pre-occupation of the applicant for the victim, expressed his concerns for the victim’s safety if the applicant were granted bail. Detective Coy agreed that programs to address the applicant’s drug abuse would assist in reducing his risk of re-offending, but he remained concerned about the applicant’s ‘underlying obsession’. He made plain that, in light of information that he had, Detective Coy was of the opinion that the applicant had understated his drug use when speaking to the psychologist, David Ball.
A harrowing emergency 000 call made by the complainant on 1 March 2015, at about 3:10pm, was also tendered through the informant (Exhibit A). It demonstrated the victim’s fear at the time it was made.
Counsel submitted that unacceptable risk was established, and that the applicant had not relevantly shown cause.
Applicants submissions
Counsel for the applicant submitted that the applicant was not in a ‘show cause’ situation; but that, in any event, he could ‘show cause’ why the applicant’s continued detention was not justified. He relied on:
(a) the lack of cogency in the prosecution case;
(b) the applicant’s strong ties to the jurisdiction;
(c) the presence of stable accommodation and strong familial support;
(d) the fact that the applicant had the care of his de facto partner and his two children, aged 3 years and 5 years;
(e) the applicant’s stable employment;
(f) the lack of any significant prior convictions;
(g) the absence of any history of breaching bail conditions; and
(h) the absence of any history of breaching court orders.
Further, counsel submitted that there was no adequate foundation for the respondent’s assertion that the applicant relevantly presented any unacceptable risk.
The applicant relied on a report prepared by forensic psychologist, David Ball (Exhibit 1). Mr Ball reported that the applicant was ‘a person of generally good judgement who was cooperative, amenable and generally high functioning’. The applicant ‘possesses clear consequential thinking and is well capable of planning and executing positive and self-sustaining behaviour.’ As to the applicant’s drug and alcohol history, Mr Ball observed that the applicant ‘acknowledged having used methylamphetamine since he was aged 30’ and described himself a ‘recreational user’ of the drug, mostly on weekends.
Mr Ball concluded that the applicant fitted the diagnostic criteria for a mild stimulant disorder. In his view, the applicant’s management in the community might be assisted by the option of supervision and drug relapse prevention treatment. He observed that, should the Court be minded to grant the application and admit the applicant to bail, he could meet with Ms Kim Dowse within a day or so of his release to begin supervision and drug relapse prevention treatment.
Counsel also called the applicant’s de facto partner, Ms Belinda Harrison, to give evidence. She and the applicant had been in a relationship for 10 years, and had two sons. Both she and her sons were reliant on the applicant for support. While he has been in custody, she has had to rely on the generosity of family to get by.
Mr Patrick Lordan had also provided a reference (Exhibit 2), which I received without objection. It showed, counsel submitted, that the applicant had suitable employment available to him if granted bail.
Counsel also relied on the applicant’s personal circumstances.
The applicant’s personal circumstances and other matters
The applicant will turn 40 years of age next month. His de facto partner, with whom he has two children aged 3 years and 5 years, remains supportive of him, as do his parents — who were in court — and his brother. He has lived in his current place of residence, his parents’ former home, for most of his life.
So far as employment is concerned, the applicant appears to have been in stable employment since leaving school to complete an apprenticeship as a motor mechanic. The evidence suggests, as I have said, that he has work immediately available to him if released.
I regard the applicant’s prior convictions as largely irrelevant. In the main, they disclose illegal drug use, which is consistent with the picture which emerges from the complainant’s account of her drug use with the applicant, and Mr Ball’s report. The applicant’s prior criminal history does not, however, reveal any previous breaches of court orders or any sexual offending.
As to the strength of the prosecution case, it relies for its cogency upon the evidence of the complainant, bolstered, perhaps, by a complaint of rape to Mr McCall and a series of telephone and text messages (many of which, it might be argued, are simply consistent with two people involved in a torrid, and troubled, amorous affair). Given that it will turn mainly on the credibility of the complainant, against the background of what seems to have been a tumultuous and drug-fuelled relationship, the prosecution’s case could not fairly be described as overwhelming.
The applicant is said to have introduced the complainant to ice, and the alleged offending might be viewed against the milieu of their mutual drug use. Moreover, as I have said, the applicant’s prior convictions tend to bespeak a history of illicit drug use, which is confirmed by Mr Ball’s opinion that the applicant fits the diagnostic criteria of ‘mild stimulant disorder’. The picture is completed by the evidence of Senior Detective Coy, who has information that the applicant is a more prolific drug user than he may have conveyed to Mr Ball.
When the matter was before the Magistrates’ Court, the applicant was recommended for case management by the Court Integrated Services Program (‘CISP’), so that alcohol and substance abuse issues might be assessed and treated. With the encouragement of the parties, the Court administratively made contact with CISP. On the information available to the Court, it seems that the applicant remains suitable for CISP, although it is necessary that he attend a further appointment to be re-assessed.
Further, Mr Ball has recommended that the applicant should undertake supervision and drug treatment relapse prevention treatment with Ms Kim Dowse as directed by Mr Ball. If the applicant fails to attend for directed treatment, Mr Ball has undertaken to report such failure.
Unacceptable risk and ‘show cause’ under the Bail Act
There was a dispute between the parties as to whether the applicant was in a position that he had to ‘show cause why his detention in custody is not justified’.
So far as relevant, s 4(2)(d)(i) of the Act provides:
(2) Notwithstanding the generality of the provisions of subsection (1) a court shall refuse bail —
…
(d) if the court is satisfied—
(i) that there is an unacceptable risk that the accused if released on bail would —
fail to surrender himself into custody in answer to his bail;
commit an offence whilst on bail;
endanger the safety or welfare of members of the public; or
interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;
…
And s 4(4)(b) of the Act provides that:[8]
[8]My emphasis.
(4) Where the accused is charged—
…
(b) with an offence against section 21A(1) of the Crimes Act 1958 (stalking) and—
(i) the accused has within the preceding 10 years been convicted or found guilty of an offence against that section in relation to any person or an offence in the course of committing which he or she used or threatened to use violence against any person; or
(ii) the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom he or she is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence;
…
the court shall refuse bail unless the accused shows cause why his detention in custody is not justified …
Since 4(2)(d)(i) provides that a court shall refuse bail if satisfied that there is an unacceptable risk that an accused would, if released on bail, do any of the things spelled out in the subsection, it is plain that any burden of persuasion as to unacceptable risk cannot lie with the applicant for bail. He is not required to show an absence of unacceptable risk.[9]
[9]Cf Haidy v DPP [2004] VSC 247, [12] (Redlich JA).
That position may be contrasted with the situation that obtains under s 4(4)(b), where a burden of persuasion is placed on the applicant for bail. If the applicant for bail is charged with stalking, and the court is satisfied that the applicant has previously used or threatened violence against the person stalked, the court shall refuse bail unless the accused shows cause why his detention in custody is not justified.
The mere fact that a person is charged with stalking (and has previously used or threatened violence), however, does not necessarily carry with it the concomitant that he poses an ‘unacceptable risk’ within the meaning of s 4(2)(d)(i). Whether or not he does so requires an evaluation of the putative risk or risks, consistently with the requirements of s 4(3) of the Act.
Any grant of bail must carry some risk. Subsection 4(2)(d)(i) contemplates that there are some risks which are acceptable; and that, in certain situations, what might initially be deemed to be an unacceptable risk may be rendered acceptable by, for example, the imposition of strict conditions of bail. Subsection 4(3) of the Act provides:[10]
[10]My emphasis.
(3) In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say—
(a) the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused;
(c) the history of any previous grants of bail to the accused;
(d) the strength of the evidence against the accused;
(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;
(f) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.
Analysis
At the beginning of the hearing before me, I asked counsel for the respondent to articulate the reasons why it was contended that the applicant was in a show cause situation under s 4(4)(b). He submitted that the assault (charge 9) where the applicant bent the complainant over a vehicle, qualified as a separate occasion where the applicant had used or threatened violence within the meaning of s 4(4)(b)(ii), since, he submitted, the calls and messages which constituted the stalking were subsequent to this assault.
The view may be open that the assault was not a separate occasion from the stalking, but rather part of a single course of conduct, so that s 4(4)(b)(ii) is not engaged. In my view, however, I do not have to decide that issue, since, on the assumption that the subsection applies — and the applicant does indeed carry the burden of showing cause why his detention in custody is not justified — in my opinion he has discharged the onus.
Properly analysed, the posed unacceptable risks of committing an offence whilst on bail and of interfering with witnesses are isolated to the complainant. Furthermore, although I do not ignore the suggested obsessional nature of the applicant’s feelings for the victim, it seems to me that the offending alleged appears to have been connected to the applicant’s use of ice and its disinhibiting effects. In my view, the posed risks are amenable to acceptable reduction and management by appropriately strict and restrictive bail conditions. In particular, so far as the applicant’s risk of offending might be seen as having a connection to illicit substance abuse, that risk may be reduced by his engagement with CISP, and with Ms Dowse and Mr Ball.
In my view, the applicant does not pose an unacceptable risk in the manner posited by the respondent. Any risk may be adequately controlled by conditions of bail. Given that is so, having regard to the applicant’s personal circumstances (including his family supports), his employment prospects and his prior history, and taking into account the nature and limited strength of the prosecution case, insofar as the applicant might have been required to show cause why his detention in custody is not justified, in my view he has done so.
Proposed orders
I propose the following orders:
The applicant is to be admitted to bail on his own undertaking with the following conditions:
1. The applicant must reside at 4 Denise Place, Melton West, in the State of Victoria.
2. The applicant is to report each Monday, Wednesday and Friday, between the hours of 6:00am and 9:00pm to the Officer in Charge of Melton Police Station or his or her nominee.
3. That, save in the case of sudden or extraordinary emergency, the applicant is to remain at his residence at 4 Denise Place, Melton West, every day between the hours of 9:00pm and 5:00am, and to present himself at the front door of the residence if and when requested to do so by a member of police.
4. The applicant must attend the CISP Office at Melbourne Magistrates’ Court at 9:30am on 9 June 2015 for an interview, and thereafter comply with all requirements of the CISP programme as directed by those administering that programme.
5. The applicant must attend the office of Ms Kim Dowse, Suite 1009, 1 Queens Road, Melbourne, at 11:00am on 1 June 2015 for an interview, and thereafter submit to such supervision and drug relapse prevention treatment as directed by Ms Kim Dowse or Mr David Ball or their nominees.
6. The applicant must not contact (whether directly or indirectly by any means including via social media) any witnesses for the prosecution other than the informant.
7. The applicant must comply with the conditions of the Intervention Order imposed by the Magistrates’ Court at Melbourne on 14 April 2015.
8. The applicant must appear at the Magistrates’ Court at Melbourne on 2 September 2015 and thereafter as directed by that court.
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