Re Pecori
[2023] VSC 777
•20 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0302
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an Application for Bail by Anthony Pecori
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 December 2023 |
DATE OF JUDGMENT: | 20 December 2023 |
CASE MAY BE CITED AS: | Re Pecori |
MEDIUM NEUTRAL CITATION: | [2023] VSC 777 |
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CRIMINAL LAW – Bail – Charges of rape, intentionally causing serious injury, and reckless conduct endangering life – Allegation of forceful pressure applied to throat of complainant in course of rape – Very serious offending - 23 year old applicant with no prior convictions – First time in custody - Strong family support – Long-term treatment for psychological issues – Condition that applicant would live far away from the area of his offending and home of complainant – Exclusion zone to enforce geographical isolation – Compelling reason established – Unacceptable risk not made out – Bail granted on stringent conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Nathwani SC with Mr R de Kretser | James Dowsley & Associates |
| For the Respondent | Ms G McMaster | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of charges he faces of intentionally causing serious injury (‘ICSI’), reckless conduct endangering life (‘reckless conduct’) and rape.
It is agreed between the parties that I must refuse bail unless the applicant satisfies me that a compelling reason exists that justifies the grant of bail. This is because the applicant is charged with two offences, namely ICSI and rape, which are contained within Schedule 2 of the Bail Act 1977 (‘the Act’).
The respondent concedes in the affidavit in response and in the oral submissions of Ms McMaster that it would be open to the Court to be satisfied of the existence of a compelling reason that justifies the grant of bail. Bail is nonetheless opposed on the basis that the applicant is an unacceptable risk of endangering the safety or welfare of a person, committing an offence whilst on bail, or interfering with witnesses or otherwise obstructing the course of justice.
Procedural history
The applicant was arrested, charged and remanded on 4 December 2023.
He applied for bail in the Melbourne Magistrates’ Court in a hearing which proceeded on 5 and 6 December 2023. The application was refused by the learned magistrate on the basis that the applicant had failed to establish the existence of a compelling reason that justified the grant of bail.
On 5 December 2023, an interim personal safety intervention order (‘PSIO’) was made against the applicant in the Melbourne Magistrates’ Court.[1] The protected person under the order is the complainant BM,[2] and the order prohibits the applicant from stalking, approaching, communicating with, or attempting to locate the protected person, amongst other things.
[1]Case number P12565861.
[2]Name initialised to protect the identity of the complainant.
The charges the subject of this application are scheduled to return to court for a committal mention hearing in Melbourne Magistrates’ Court on 28 March 2024. The PSIO will return to the same court on the same date.
Summary of alleged offending
Overview
The charges arise out of a single incident that occurred in the applicant’s home on 2 December 2023. The complainant is BM, who is 21 years of age and had met the applicant through mutual friends on one occasion prior to the alleged offending.
Lead-up events
On Friday 1 December 2023, the complainant attended several venues in Brighton and St Kilda with her friends and had a number of alcoholic drinks. She observed the applicant on a few occasions throughout the night, but had minimal interaction with him until 5am, when they planned to walk to his house to charge her phone. The home of the applicant was only a very short walk from Fitzroy Street, St Kilda.
At his house, the applicant and complainant drank a bottle of wine while the phone charged. After checking her bank account balance on her phone, the complainant said she would have to wait for her parents to wake up and transfer her money before she could order an uber to go home. At the applicant’s suggestion, they used cocaine in the spare bedroom and then purchased more alcohol from a local bottle shop at around 8am. They returned to the spare bedroom, where the complainant at some point fell asleep on the bed.
Incident
The complainant awoke partially undressed on the bed with the applicant on top of her. The applicant was completely naked and attempting to insert his penis into her vagina, while she repeatedly yelled no. The applicant placed either his forearm or hand on her throat, severely restricting her breathing and causing her to believe that she was going to die. The applicant then inserted his penis into the complainant’s vagina. The complainant attempted to physically stop the applicant by clawing at his arms and back with her fingernails. At some point the applicant stopped, releasing his grip on her throat and removing his penis from her vagina.
The complainant got off the bed and was crying and yelling at the applicant as she collected her belongings. She told the applicant she never wanted to see him again and left the house, running to a nearby playground. At 4:10pm, the complainant called her mother, who collected her from the playground and reported the incident to police.
The applicant’s mother was present at the home during the incident. The informant’s report states that Mrs Pecori indicated that while she was in the lounge room of the house, she heard yelling, swearing and loud banging coming from the spare bedroom. She yelled out to the applicant to stop or she would call the police. A short time later she observed the complainant leave the house. She expressed concern about the applicant’s frequent heavy drinking.
Complainant’s injuries
When the complainant’s mother saw her daughter, she was extremely distressed. Her face was observed to be a purplish-blue colour. Photographs taken by the complainant’s sister and shown to the Court depict injuries consistent with strangulation, including a swollen face and lips, blood in the white of her right eye, facial discolouration, and petechial bruising.
The complainant underwent examination by a forensic medical officer at Monash Medical Centre in the hours following the incident. A report of the examination is pending. Apparent dried blood was found under the fingernails of the complainant. Scrapings were taken for comparison with the DNA of the applicant.
Arrest of applicant
The applicant was arrested on 4 December 2023 during the execution of a search warrant at his house. He provided a no comment interview, and was subsequently charged and remanded in custody. Multiple exhibits were seized from the applicant’s house, including his phone. On the phone, police located messages sent by the applicant to a friend in which he stated, ‘I fucked up’. A similar message was apparently sent by the applicant to his psychologist, Wes Johnson.
A physical examination of the applicant indicated the presence of injuries to the shoulder blade and arms, consistent, argues the prosecution, with the account of the complainant.
Personal background
The applicant is 23 years of age. Before his arrest, he lived at home in St Kilda with his mother. His parents separated when he was young. His sister died suddenly while travelling in Canada in 2017 when the applicant was only 16. This had a profound impact on him and he has been treated since then for a range of issues by Mr Johnson, who has seen the applicant on approximately 50 occasions since 2016. The applicant has lived in St Kilda for most of his life. He was educated at St Kilda Park Primary School before attending Albert Park Secondary College to the end of Year 12. He then worked in a number of hospitality jobs in the local area before commencing work as a leasing consultant with a real estate management firm.
The applicant has no prior convictions.
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. One of those situations is when the applicant for bail is accused of a Schedule 2 offence, as is the case here. Section 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.[3] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4C(2).
[4]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:[5]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[6]
[5][2019] VSCA 214.
[6]Ibid [43].
The applicant’s submissions
Mr Nathwani SC, who appeared with Mr de Kretser for the applicant, relies on a combination of matters in proof of the existence of a compelling reason in justification of bail. Those matters are:
a) The applicant’s youth.
b) The absence of any prior criminal history.
c) The antecedents of the applicant in other respects.
d) The special vulnerability of the applicant in custody. The applicant suffers from a number of psychological issues, including anxiety, depression and grief for which he has been treated by Mr Johnson since 2016. This is his first time in custody and he is vulnerable by virtue of his fragile psychological state, his age and his lack of associates in the custodial setting. His access to treatment there would be limited, but should he be released on bail, he would be able to immediately resume treatment with Mr Johnson.
e) Delay. It is not expected that a trial of this matter would be heard until the second half of 2025, meaning that he may face a period of about two years in custody awaiting trial.
f) The strength of the prosecution case. It was not asserted that the case is a weak one, but rather, it was submitted that there are triable issues.
g) The stable accommodation and family support available to the applicant. It was proposed at the time of the application in the Magistrates’ Court that the applicant would live with his mother if granted bail. That was the position maintained in the written material in support of this application, but in light of concerns expressed by the prosecution about the proximity of the mother’s address to problematic locations, including Fitzroy Street, St Kilda, it was decided that the preferred residential location would be at the applicant’s father’s address in Reservoir. Mr Miranda gave an undertaking to the Court that he would contact the informant if he becomes aware of any breach of bail. It was indicated that Mr Miranda, who works in the construction industry, would reduce his hours of work in the next few months in order to be able to spend time supervising the applicant. Mr Nathwani submitted that the removal of the applicant from the St Kilda area would answer concerns expressed by the informant in her report that if the applicant returned to live with his mother, he would be returning to the same environment and circumstances in which he allegedly offended, with easy access to alcohol, drugs and licensed premises.
h) The availability of support services. It is proposed that the applicant would resume treatment with Mr Johnson.
i) The willingness of the applicant to abide by a geographical exclusion zone. It was proposed that the zone would include St Kilda and Brighton, meaning that the applicant would be barred from entry into the problematic area around Fitzroy Street, St Kilda, and the area in which the complainant apparently resides.
j) The applicant’s ties to the jurisdiction.
k) The availability of a surety of $5000. It is proposed that the father of the applicant would act as surety. This is a significant sum for him.
l) The fact that the prosecution concede it would be open to the Court to be satisfied of the existence of a compelling reason.
The above matters were also relied upon on the question of unacceptable risk. The asserted risks of endangering the safety or welfare of any person and interfering with witnesses or otherwise obstructing the course of justice, it was submitted, are based on the untried allegations and conjecture, and are not consistent with the applicant’s lack of criminal history. The applicant had a limited prior relationship with the complainant, consented to the making of the PSIO, and would have no reason to come into contact with her. There has been no attempted contact with her from the time of the alleged offending. The proposed bail conditions would address the applicant’s alcohol and drug use, with a requirement of total abstinence from alcohol and drugs enforced by drug screening, a ban on alcohol in the home, a curfew, and a prohibition on attending licensed premises.
In addition, it was submitted that the imposition of a geographical exclusion zone would remove the applicant a long way from the problematic areas about which concern had previously been expressed by the prosecution. Further security would be provided by the imposition of a curfew.
It is conceded that bailing the applicant would not be without risk, but in the circumstances, with an absence of criminal history or negative bail history, stable accommodation and family support, the treatment available for the applicant’s health and substance abuse issues, the likely ability to find employment, and the applicant’s ties to the community, the risk is not an unacceptable one.
Mr Nathwani proposed a stringent raft of conditions to ameliorate risk in this case to an acceptable level should bail be granted.
The respondent’s submissions
The respondent relied upon the material contained in the answering affidavit, the informant’s report exhibited to the affidavit, and the oral submissions of Ms McMaster in resisting a grant of bail. As noted earlier, the respondent effectively conceded the existence of a compelling reason but agitated the question of unacceptable risk.
Ms McMaster raised a particular concern about the adequacy of the steps proposed to deal with the applicant’s drinking problem. He would be receiving nothing more by way of assistance or treatment than he was receiving in the past when he had the lapses spoken of by Mr Johnson. No more specialist alcohol and drug counselling has been proposed.
Ms McMaster emphasised the seriousness of the rape alleged in this case, noting the standard sentence of 10 years’ imprisonment for that offence. She emphasised also the strength of the prosecution case.
In respect of delay, the alleged offending only occurred in December. The possible delay of two years which was not challenged by Ms McMaster would not be inordinate in the circumstances.
Ms McMaster questioned the likelihood of the applicant securing employment upon his release in light of the geographical exclusion proposed and the condition relating to licensed premises.
In respect of risk, Ms McMaster did concede that the removal of the applicant from the St Kilda area should he be required to reside in Reservoir would reduce risk somewhat, but the $64,000 question would be whether he would abide by bail conditions.
Analysis
Although there is a charge of ICSI, that charge seems to be a questionable one. It is not immediately apparent what the serious injury is which is said to be the foundation of the charge. In any event, the central charge is one of rape. Rape is always a very serious offence, as evidenced by the high maximum penalty of imprisonment for 25 years.
The instance of the crime alleged here is particularly serious, with the allegation being that the applicant stripped, to a semi-naked state, a sleeping, intoxicated and vulnerable person before sexually penetrating her without her consent, and against her strong protestations. The alleged application of strong pressure to the neck or throat of the complainant restricting her breathing is a very concerning additional aspect of the alleged rape, and would itself be serious criminality.
This prosecution is at a very early stage, but it would be correct to observe that the case has the appearance of being a reasonably strong one. The aftermath of the alleged rape was heard and witnessed by the mother of the applicant. The complainant made an immediate complaint, and within a short time of her departure from the house, she was observed by her mother and others to be in an obviously injured state, with the appearance of the injuries being supportive of the allegations she later made.
In respect of the considerations in s 3AAA(1)(k) and (n) of the Act, whilst the likely delay is obviously significant, it would go nowhere near approaching the length of the substantial sentence which would be inevitable in the event the applicant is found guilty of the rape and the charge of reckless conduct following a trial.
The above aspects of the surrounding circumstances of this case, if viewed in isolation from the other circumstances, would not paint a positive picture of the prospects of a successful application for bail. But that would amount to only a part of the full picture.
The applicant is a 23 year old man with no criminal history at all and, of course, no negative bail history. He comes from a good background, and the support of his parents is particularly significant. Both attended in Court during the application, and whilst they have been separated for many years, the united front they put on in support of their son was significant. The concern they both feel at the plight of their son was apparent to me in their demeanour.
I accept that the applicant’s psychological state is fragile, and the fact that he has been regularly consulting a psychologist since 2016 to deal with an array of issues, including grief flowing from the loss of his sister, is very significant. The prison environment would be a difficult one in which to continue to deal with these issues, especially for a person experiencing his first stay in custody. On the other hand, there is available to him, should he be granted bail, ongoing psychological counselling with a familiar figure in his life.
Mr Nathwani emphasised that the applicant’s first stay in a prison has been a very salutary experience for him. He will have a clear understanding of what would await him if he breaches any of the conditions of bail, should it be granted.
The problem the applicant has had with the abuse of alcohol and illicit drugs, which would seem to have played a significant part in the alleged offending, is not something which has gone unnoticed by him and his psychologist in recent times. I accept that the applicant has had periods of abstention from alcohol, and that he sees the need to redouble his efforts in this regard. Mr Nathwani submitted, and I accept, that this matter has acted as a wakeup call to the parents and supports of the applicant about his problem with alcohol.
Ms McMaster expressed concern that the counselling the applicant has thus far received has not been effective in dealing with his alcohol and drug issues. It was indicated on the applicant’s behalf that he is willing to abide by a condition that he abstain from the consumption of alcohol. Mr Nathwani submitted that this is an achievable aim, and that such a condition would not be setting the applicant up to fail.
In those circumstances, although it will not be easy, there is no reason to think that, with the assistance of Mr Johnson, the applicant may not be able to deal with his alcohol issue, or at least take steps in that direction. If he does, it would greatly reduce his risk of reoffending. No doubt Mr Johnson would consider whether, in the circumstances, more specialist alcohol and drug counselling than he is able to provide may be called for in your case. If so, no doubt he would be able to refer you on for further treatment.
Taking into account all of the circumstances of this case, including the fair position of the respondent in conceding that it would be open to me to be satisfied as to the existence of a compelling reason that justifies the grant of bail, I am so satisfied. Notwithstanding the very serious offending alleged, the apparent strength of the prosecution case, and the understandably negative attitude of the complainant and the respondent to a grant of bail, the overall combination of circumstances leads me to the view that the stringent test presented by the first step in the 2-step bail process has been satisfied. An important factor in that decision is the reality that notwithstanding the fact that the two years or so that the applicant would spend in custody awaiting trial is unfortunately not an inordinate delay of itself in our criminal justice system, it is no small thing, especially for a young person of previous good character such as the applicant, to be required to spend such a period of time in custody before any finding of guilt has been made.
Turning to the question of risk, there is no question that the applicant does pose some risk, in light of the very serious nature of the alleged offending, and the challenges he faces in dealing with his alcohol and drug problems. However, I am of the view that with the imposition of the very strict conditions of bail proposed on behalf of the applicant, the risk posed can be mitigated to a level which is no longer unacceptable.
Before leaving the application, I make the observation that this decision to grant bail to the applicant is made on the circumstances as they currently appear to me. Those circumstances differ in a number of important respects from those upon which the learned magistrate refused bail on 6 December 2023. For a start, the applicant has now spent a further two weeks in custody since the time of the order below. Where previously it was proposed that the applicant would reside with his mother in St Kilda should bail be granted, a proposed arrangement which was of great concern to the respondent for reasons spelt out in the informant’s report, before me the plan was for the applicant to live with his father in Reservoir. This would have the effect of the applicant being removed by a substantial distance from the location of his offending, the bar and club area of St Kilda which may be viewed as problematic for someone with his drinking and drug use problems, and the general area where the complainant lives. This geographical separation will be enforced by the geographical exclusion zone proposed by Mr Nathwani. Another important change is that the report of the psychologist Mr Johnson, setting out the long-term treatment received by the applicant, and the offer of future treatment, was not before the learned Magistrate. Therefore, as I anticipate it, the submission made before me touching on the fragile nature of the applicant and his vulnerability in custody would not have been able to be mounted with the same force, if at all.
To state the obvious, my decision to grant bail should in no way be seen as any criticism of the decision of his Honour to refuse bail, a decision which I am confident was entirely correct.
Conclusion
For the reasons I have stated, I am satisfied that the applicant has established the existence of a compelling reason which justifies the grant of bail. I am not satisfied that the respondent has shown that the applicant poses an unacceptable risk of any of the matters relied upon.
I propose to grant bail to the applicant on the conditions I will shortly announce.