Re Rafat
[2023] VSC 710
•28 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0262
IN THE MATTER of the Bail Act 1977
- and -
IN THE MATTER of an Application for Bail by Morteza RAFAT
BETWEEN:
| MORTEZA RAFAT | Applicant |
| - and - | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 & 20 November 2023 |
DATE OF JUDGMENT: | 28 November 2023 |
DATE OF REASONS: | 4 December 2023 |
CASE MAY BE CITED AS: | Re Rafat |
MEDIUM NEUTRAL CITATION: | [2023] VSC 710 |
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CRIMINAL LAW — Application for bail — Charges of rape by compelling sexual penetration, encouraging a child under the age of 16 to engage in, or be involved in, sexual activity, sexual assault, sexual exposure — Family support — No criminal history — BailSafe GPS monitoring available — Surety — Lack of insight into alleged offending — Compelling reasons shown — Unacceptable risk established — Bail refused — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | G Chisholm | Victoria Legal Aid |
| For the Respondent | A Grant | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Morteza Rafat [‘the applicant’] seeks bail on the following charges, alleged to have occurred on 21 September 2023:
(a) rape by compelling sexual penetration (two charges);
(b) encouraging a child under the age of 16 to engage in, or be involved in, sexual activity (two charges);
(c) sexual assault of a child under the age of 16 (four charges);
(d) sexual exposure; and
(e) common law assault.
On 21 September 2023, the applicant was arrested and remanded in custody.
He has since applied for and been refused bail twice in the Melbourne Magistrates’ Court on 22 September and 9 October 2023 on the basis he posed an unacceptable risk.[1]
[1]On the second occasion, the applicant relied upon the availability of psychological treatment with Peter Hanley as a new circumstance.
On 31 October 2023, the applicant filed a notice of application for bail in this court.
The matter is next listed on 15 December 2023 in the Melbourne Magistrates’ Court for a committal case conference and committal mention.
The applicant has been in custody since 21 September 2023 (57 days at the time of the bail hearing). He has no criminal history and is in custody for the first time.
The alleged offending
It is alleged that at 4:30pm on 21 September 2023, the applicant, aged 38, followed three teenagers — SD[2] and BN (both males), and SB (a female) [‘the complainants’] — all 14 years of age, through a park in Doveton under the Monash Freeway. When the complainants entered an area with tree cover, the applicant is alleged to have emerged from some bushes, exposed his penis to them and said “We are all friends … Don’t make me angry!”
[2]The remand summary at exhibit AM‑2 to the affidavit in support refers to SD being 14, whereas the informant’s report at [2] at exhibit NJD‑1 to the affidavit in response refers to SD being 13.
The applicant then instructed SD to remove his (SD’s) pants. When SD hesitated, the applicant grabbed him forcefully by the wrist. SD did as the applicant instructed and pulled down his pants. The applicant then told SB to undress. She hesitated and told him she felt uncomfortable. She asked SD what they should do. SD replied that they should do what the applicant says, further asking “What if he hurts us?”. The applicant repeatedly told SD and SB to “Go on” and take their clothes off.
SB began to remove her clothes, and the applicant took her bra off and kissed her. SB again told the applicant that she felt uncomfortable. The applicant told SD to get on his knees. The applicant then told SB, who was by then naked, to get on her knees in front of SD. The applicant instructed SD to put his (SD’s) penis into SB’s vagina. The applicant repeatedly said “Do it” and told SD “Go on, go on” and “Put it in”.
SD told SB that she should run away. SB wanted to run away, but stayed out of fear that the applicant would hurt them if they did not do what he said.
SD put his penis into SB’s vagina. The applicant then held onto SB’s lower back and forcefully pushed her back and forth. SD also saw the applicant touch SB’s breast. The applicant told SB “good girl – you’re fine” and said “good job” to SD.
The third teenager, BN, was standing metres away and observed the applicant crouching very close to the complainants. BN looked away multiple times, trying not to watch, but observed the applicant masturbate himself and grab SB’s breast. It appeared to BN that the applicant also kissed SB’s face.
SD withdrew his penis from SB’s vagina and ejaculated. The applicant then pulled SB up and repeatedly told her to touch his (the applicant’s) penis. The applicant also told SD to tell SB to touch his (the applicant’s) penis. SD did not say anything, but saw SB briefly touch the applicant’s penis.
SD and SB then dressed and walked away with BN. The applicant followed and continued to request that SB touch his penis. SD called police, who attended [redacted] in Doveton shortly after. Police arrested the applicant outside his home — SD having pointed him out from the street — and transported him to Dandenong Police Station for interview.
Prior to interview, the applicant reportedly said via a Dari interpreter, “My crimes are not that serious”. After the charges were explained to him, the applicant mostly provided no comment, with the exception of stating “I didn’t rape”.
The applicable legislation
Guiding principles
In determining an application for bail, the court is required to have regard to the guiding principles as set out in section 1B(1) of the Bail Act 1977 [‘the Act’].[3]
[3]Namely, maximising the safety of the community and persons affected by crime to the greatest extent possible; taking account of the presumption of innocence and the right to liberty; promoting fairness, transparency and consistency in bail decision making; and promoting public understanding of bail practices and procedures.
Step 1 — compelling reason test
As the applicant is charged with Schedule 2 offences within the meaning of the Act,[4] bail must be refused unless he can satisfy the court that a compelling reason exists that justifies the grant of bail.[5] In considering whether a compelling reason exists, the court must take into account the relevant surrounding circumstances, including, but not limited to, those in section 3AAA(1) of the Act.[6]
[4]Namely, two charges against s 39(1) of the Crimes Act 1958 (rape by compelling sexual penetration); see the Act, sch 2, item 10.
[5]The Act, ss 4AA(3) and 4C(1A)–(2).
[6]Ibid s 4C(3).
Step 2 — unacceptable risk test
If satisfied that a compelling reason exists that justifies the grant of bail, the court must consider the unacceptable risk test.[7] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[8] In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[9]
[7]Ibid ss 4C(4) and 4D(1)(b).
[8]Ibid s 4E(1)–(2).
[9]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 38 years old.
He is a citizen of Afghanistan. When he was a child, his family moved to Iran to escape conflict, and he spent most of his life there. He is in frequent phone contact with his mother, who remains in Iran.
In 2019, the applicant married Laila Sadiqi, who is an Australian citizen and whom he has known since childhood. In 2021, he moved to Australia on a partnership visa to reside with her.
At the time of the applicant’s arrest on 21 September 2023, he and his wife were residing in a private rental on [redacted] in Doveton. They had purchased their first home in Cranbourne West one month prior, and settlement for the property took place on 29 September 2023, while the applicant was on remand. The couple have a home loan of $590,000, with monthly repayments of $4,300.
The applicant’s wife works in aged care three to four days per week, in addition to studying a Diploma of Nursing. Prior to his remand in custody, the applicant was working full‑time in a warehouse in Dandenong. He has previously worked as a labourer and a cabinet maker.
The applicant has very limited proficiency in English, and is reliant on his wife to assist him in the community. He required a Farsi interpreter during the hearing of this matter.
The applicant has no immediate family in Victoria, aside from his wife and her parents, who live close to his proposed bail address in Cranbourne West. The applicant’s parents‑in‑law are aware of the allegations and remain supportive of him.
The applicant’s Muslim faith is very important to him and he does not use alcohol or drugs.
Criminal history
The applicant has no prior criminal history. This is his first time in custody.
The applicant’s contentions
Nature and seriousness of the alleged offending
The applicant concedes that the alleged offending (if proven) is very serious, noting in particular that:
(a) the complainants are children, aged 14 years old;
(b) the offending is alleged to have occurred in a public park during daylight;
(c) the offending is alleged to have included the applicant touching one of the complainants, namely handling SB’s breast and kissing her, as well as requesting that she touch his penis (which she is said to have done briefly); and
(d) the applicant is alleged to have followed the complainants after the incident, as they contacted police.
Strength of the prosecution case
The applicant submits that the strength of the prosecution case is difficult to determine at this stage, noting however that the brief of evidence has now been served on the defence. The informant, Detective Leading Senior Constable [‘DLSC’] Sharon Murr, gave evidence at the hearing, and confirmed that DNA testing is still outstanding, along with a few other “peripheral” lines of inquiry, in relation to CCTV footage and evidence of an Uber trip reportedly taken to the park by BN and SD.
On the basis of the information available, the applicant submits that it would not be conceded that the prosecution case is strong, noting that the applicant made a no comment interview, with the only comment indicated in the remand summary being a denial of the principal offences (“I didn’t rape”).
The applicant denies the offending and will be contesting all charges. At hearing, the applicant noted that there was a potential alternative hypothesis that may be run in the applicant’s defence. Whilst this was not explored in detail, it appears that this involves the suggestion that the applicant had stumbled across the complainants engaging in sexual activities, with the complainants thereafter concocting a false account of events, pointing to the applicant as a perpetrator to avoid any negative consequences to themselves.
Criminal and bail history; outstanding matters
The applicant highlights that he has no prior criminal history, no outstanding matters, and has never been subject to bail.
Family support; stable accommodation; employment
The applicant is supported by his wife and her parents.
The applicant proposes to reside with his wife at their home in Cranbourne West if granted bail. He highlights that this address is stable, removed from the area of alleged offending (Doveton), and in close proximity to his parents‑in‑law.
The applicant’s wife and parents‑in‑law gave evidence at hearing. His wife, Ms Sadiqi, confirmed during her evidence that she is struggling to cover the mortgage repayments on the couple’s new house without the applicant’s assistance, and has resorted to borrowing money from family and friends. Ms Sadiqi said that if the applicant is not granted bail, she will likely be forced to sell their house or quit her nursing studies. The applicant also financially supports his mother and brother, who is disabled, in Iran.
Limited evidence of prospective employment was put forward at the hearing. The applicant’s previous manager has told the applicant’s wife that he could return to work. On this issue, the applicant’s wife apparently told the manager that the applicant could not be at work due to ‘some family issues’. In her evidence, Ms Sadiqi stated that she had not communicated to the applicant’s former manager that he was facing criminal charges.
Character references authored by Antoine and Mona Rizkallah, the former neighbours of the applicant, and Mojahid Agha, of the Taha Humanity Association of Victoria, were also provided to the court.
Surety
The applicant’s parents‑in‑law, Mr Darwanrali Sadiqi and Ms Amina Sadiqi, have offered a surety to the value of $50,000 by way of equity in their home in Cranbourne West. The home is valued in a rates notice at $980,000, with a mortgage against it of approximately $903,000. Both gave evidence at the hearing, through an interpreter, and confirmed their understanding of surety arrangements and the consequences of any breaches of bail by the applicant, if bail were to be granted. They also both confirmed they would call the police were they to become aware of any breaches of bail conditions by the applicant.
Availability of treatment
The applicant has provided a psychological report by Peter Hanley of Melbourne Private Psychology, dated 3 October 2023. The purpose of the report was to indicate whether the applicant would benefit from treatment in the community.
Mr Hanley notes that based on the applicant’s self‑reported circumstances, there is no evidence of mental illness, trauma, drug use or alcohol use. While the applicant is emotionally distressed in the context of being physically separated from his wife while in custody, there is no clear evidence that he is suffering from an anxiety or mood disorder per se.
Regarding the allegations, Mr Hanley notes that the applicant “expressed no insight” into his alleged behaviour, but “acknowledged the need to gain insight and reduce his risk of future offending”, namely:
Regarding his plans for rehabilitation, [the applicant] told me that he does not have, and has never had, any psychological or sexual problems. However, he said that he wants to understand the behaviour which gave rise to the allegations. He expressed the view that any sexual activity involving children was morally inappropriate and said he should not have gotten involved in any way with children involved in the allegations. He said, “I have made the decision myself that once I get out of here, I am going to sit down with my wife and get her idea about what actually caused this. I really want to get to the bottom of this and make sure I am not going [sic] this or even thinking about these things in the future.”
Mr Hanley notes that “[the applicant’s] alleged offending is not readily explained by his self‑reported circumstances, and his limited disclosure makes it difficult to provide a comprehensive treatment plan”.
Mr Hanley states that, if the applicant is found guilty of the alleged offending, he would be considered to be at an elevated risk due to his age and the nature of the offending (namely, non‑contact sexual offending against unrelated, stranger, male and female victims; and physical and psychological coercion). Mr Hanley states that individual sex offender treatment and couples counselling may assist in reducing the applicant’s risk of sexual reoffending in the community (if the allegations against him were proven).
The applicant submits that the assessment and proposed treatment plan are limited in the sense that he has not made any admission to the alleged offending. Nonetheless, to address the risk alleged by the respondent, the applicant proposes fortnightly one‑on‑one psychological counselling/sex offender treatment with Mr Hanley.
Mr Hanley gave evidence at the hearing, during which he stated that an individual does not need to have admitted an action in order for the proposed psychological treatment to have a positive effect on them. However, he agreed that whilst the applicant denies his involvement in the offending, any treatment he could offer would be less likely to reduce the risk of reoffending posed than if he was accepting of his involvement. Mr Hanley conceded in cross examination that denial is “not a good indicator of engagement” with psychological treatment. He also agreed that the type of offending alleged was less common than offences committed by adults who know the child or children. Given a comprehensive assessment was not undertaken, Mr Hanley stated it was “very difficult” to ascertain whether the treatment he could offer the applicant would be capable of reducing any risk of reoffending or committing offences whilst on bail, if bail were granted.
Availability of GPS monitoring
The applicant relies on the availability of GPS bail monitoring as a factor in support of his application.
Mr Jackson Oppy, a director at BailSafe Australia, gave evidence at the hearing. BailSafe has been operational since August 2022 and provides two distinct services, being a rehabilitation program for people on bail, focussed on substance use and mental health treatment, and a monitoring service offered at different levels, through smart phone applications, GPS trackers and urine drug screening.
It is proposed that the applicant be fitted with a GPS monitor provided by BailSafe if granted bail. The applicant’s wife has already paid approximately $5,196 for the purchase of the BailSafe GPS monitoring program at the time of the hearing.
Evidence was given by Mr Oppy that the GPS monitors provided by BailSafe are tamper‑proof tracking units. It was explained in evidence that these units are tracked through a ‘control room’ run by a private security company contracted by BailSafe. Alerts are received by this control room and the police informant. Alerts can be triggered by a number of things, such as when the tracker is tampered with, has a low battery, or if the individual enters a ‘geo‑fenced’ area (i.e., an area that has been programmed into the GPS monitor to produce an alert when the individual enters that area). When an alert is triggered, follow‑up actions are taken by workers in the control room, including an initial ‘V‑check’ or video call to the individual with the tracking unit. Further phone calls would be made to the applicant if he did not respond to this check, and after 10 minutes if the applicant is still not responding, the informant or local police station would be called. Evidence was given that the tracker also monitors the wearer’s heart rate.
The applicant submitted that the use of such a device could ameliorate the risk posed by the applicant if released on bail, in that it could:
(a) ensure the applicant complies with any curfew requirements imposed;
(b) corroborate the applicant’s attendance at any appointments with Mr Hanley; and
(c) prevent the applicant from going into any areas that have been ‘geo‑fenced’, such as reserves, points of international departure, or any other points of concern in the vicinity of the applicant’s abode.
Delay and likely sentence
The applicant has been remanded in custody since his arrest on 21 September 2023, being 57 days at the time of the bail hearing.
As above, a committal case conference is listed on 15 December 2023. If the applicant remains in custody until that date, he will have spent 85 days on remand.
The applicant submits that the likely delay in the proceeding is difficult to assess at this stage. However, it is submitted that the progress of this matter may be delayed as a result of the following factors:
(a) the prosecution is likely to rely on DNA analysis, for which there are significant delays; and
(b) the backlog of trials at the County Court and, to a lesser extent, the Magistrates’ Court due to the coronavirus pandemic.
In oral submissions, the applicant noted that on current estimates, it appears that the applicant’s matters may not reach trial stage until the end of 2024. The informant, DLSC Murr, was unable to provide estimated timeframes regarding the results of DNA testing, beyond noting analysis would be expedited given the involvement of children in these matters. It is hoped that a preliminary report will be available by the 15 December committal case conference and committal mention.
The applicant concedes that, if found guilty of the primary offences, he would face a significant term of imprisonment.
Onerous conditions in custody
The applicant highlights that he is in custody for the first time, and any further time in custody will be particularly onerous due to his limited English.
Unacceptable risk
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level having regard to the applicant’s surrounding circumstances, and by the imposition of the following conditions of bail, which were updated in the affidavit of Alex McLure dated 16 November 2023:
(a) that he reside at [an address] in Cranbourne West;
(b) a surety in the amount of $50,000.00 with Mr Dawranali Sadiqi and Ms Amina Sadiqi providing the surety funding;
(c) that he report to the Cranbourne Police Station daily;
(d) that he be subject to a curfew between the hours of 9:00pm and 6:00am;
(e) that he presents at the front door of his residence on the request of any member of Victoria Police during curfew hours;
(f) that he be subject to 24‑hour monitoring with a GPS ankle bracelet, to be supplied and monitored by Bail Safe;
(g) that he not approach any geographical region proposed by the Informant at the bail application, and cause those geographical regions to be “geo‑fenced” on the GPS ankle bracelet supplied by Bail Safe;
(h) that he not be within 10 metres of any public reserve or bushland, and not enter or remain in any public reserve or bushland, unless in the company of his wife Ms Sadiqi;
(i) that he not be alone with any person under 18 years unless in the company of another adult;
(j) that he causes the Informant to be told if he separates from his wife, or if he or she start to live separately;
(k) that he engages with Mr Peter Hanley for treatment, and cause the court and the Informant to be provided with monthly updates on his engagement with treatment;
(l) that he surrenders any valid passport or travel documents to the Informant within 24 hours of release, and he does not apply for any passport/s or travel documents;
(m) that he not approach any points of international departure;
(n) that he not leave the State of Victoria;
(o) that he not leave Australia;
(p) that he not contact any witnesses for the prosecution, except the Informant;
(q) that he not contact any other person nominated by the Informant at the bail application; and
(r) any other orders the court thinks appropriate.
The respondent’s contentions
The respondent concedes that it is open to the court to find that a compelling reason exists justifying the grant of bail. However, bail is opposed on the basis that there is an unacceptable risk that the applicant would, if released on bail:
(a)endanger the safety or welfare of any person;
(b)commit an offence whilst on bail; and
(c)fail to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Nature and seriousness of the alleged offending
The respondent describes the circumstances in which the alleged offending occurred as brazen. It is submitted that the applicant’s assessment of the nature and seriousness of the alleged offending omits to acknowledge the most serious allegations, namely, that the applicant allegedly committed rape by compelling sexual penetration between the complainants.
The respondent submits that the alleged offending has had a significant impact on the complainants. SB has reportedly become reclusive and has disengaged from school. Her family intend to move, in the hope this will help her. SD is angry and struggling with his emotions.
DLSC Murr noted in evidence that the allegations in this matter are particularly concerning given they occurred during the day, in a public place, with the applicant not knowing the complainants. DLSC Murr said that she had never undertaken an investigation like this one in her 27 years at the Dandenong Sexual Offences and Child‑abuse Investigation Team unit, and described the alleged offending as ‘unusual’.
Strength of the prosecution case
The respondent submits that the prosecution case is strong. It is highlighted that one of the complainants, SD, called police immediately after the alleged offending occurred, and that when police arrived, SD had the applicant in his view and was able to point him out to police.
The respondent further notes that:
(a)two of the complainants, and the witness, provided VAREs on the day of the alleged offending; and
(b)the applicant made the comment “my crimes were not that serious”, after his arrest, but prior to his formal interview.
The respondent also relies upon comments from the applicant’s wife about what the applicant reportedly said to her about the allegations. On 22 September 2023, the day after the alleged offending, the applicant’s wife attended the Dandenong Police Station. She is said to have told DLSC Pellissier that the applicant had told her he “didn’t do anything”, “was just standing there”, “didn’t touch them”, and “wouldn’t cheat on her”. The respondent submits that these comments indicate that the applicant has placed himself at the scene and add credibility to the accounts of the complainants and the witness.
Criminal history; bail compliance history; outstanding matters
The respondent acknowledges that the applicant has no criminal history or bail history in Australia, and that he has no outstanding matters. However, the respondent also notes that the applicant has only resided in Australia since 2021, and that a request for the applicant’s criminal history in Iran remains outstanding. Police state that this is not expected to be received for six to twelve months. Notably, it was asserted in cross examination of DLSC Murr, and accepted, that the applicant would have needed to demonstrate good character as part of his partner visa application process.
Family support; stable accommodation
The respondent notes that the applicant was supported by his wife, had stable accommodation, and held employment at the time of the alleged offending.
The respondent also submits that the applicant describes his marriage in idealistic terms, and that this seems unrealistic. The respondent expresses concern that the applicant and his wife may not be able to cope with the pressures of the criminal proceedings and the demands of daily life, if the applicant is released on bail, and that this may affect their marriage. The respondent therefore submits that the support of the applicant’s wife may not be sufficient to mitigate his risk of re‑offending. Further, the respondent expresses concern that the applicant’s wife might not report offending or bail breaches to police, noting that she sought that the applicant be released from custody at the police station on the basis that he told her he had done nothing wrong.
Employment
The respondent notes that it is not sufficiently clear whether the applicant continues to have employment available to him, if he is granted bail. The respondent expresses concern that the applicant’s risk may increase if he is in the community without purpose or daily routine.
Availability of treatment or bail support services
The respondent highlights Peter Hanley’s comments, in the psychological report dated 3 October 2023, that the applicant “expressed no insight into his alleged offending behaviour” but “acknowledged the need to gain insight to reduce the risk of future offending”. The respondent submits that this acknowledgment amounts to an admission of guilt by the applicant.
In terms of the proposed treatment, the respondent highlights that:
(a)Mr Hanley has not conducted a comprehensive risk assessment;
(b)Mr Hanley has identified several difficulties with the applicant’s responsivity to treatment due to lack of insight, potential cultural barriers, anxiety related to fear of disapproval of family, and the use of an interpreter; and
(c)the proposed treatment consists of just one session per fortnight.
The respondent submits that the proposed treatment is not intensive enough to effectively mitigate the applicant’s risk in the community.
Delay and likely sentence
In response to the applicant’s submission that the proceeding may be delayed due to outstanding material, the respondent states that:
(a)the hand‑up brief was served on the applicant on 3 November 2023, as required; and
(b)the DNA analysis currently remains outstanding, along with a few minor lines of inquiry.
The respondent agrees with the applicant that there continues to be a backlog of trials at the Magistrates’ Court and County Court due to the coronavirus pandemic. In oral submissions it was noted that this backlog appears to have lessened.
The respondent also agrees that, if found guilty of the primary offences, the applicant would face a significant term of imprisonment.
Unacceptable risk
Endangering the safety or welfare of any person; and committing an offence whilst on bail
The respondent submits that the release of the applicant on bail would put other children at risk of sexual offending. It is submitted that the alleged offending is likely to have a lifelong impact on the complainants.
The respondent submits that, of the bail conditions proposed by the applicant, only the proposed treatment with Mr Hanley goes any distance towards mitigating the applicant’s risk of endangering the safety or welfare of any person and committing an offence whilst on bail. It is submitted, however, that the practical benefit to be gained from the proposed treatment appears to be limited. The respondent refers to the difficulties which Mr Hanley anticipates will arise in treating the applicant, including the applicant’s lack of insight.
The respondent also submits that the alleged offending is not such that it could be attributed to mere misunderstanding or ignorance of laws or cultural norms by the applicant, who is a man of 38 years of age.
At hearing, DLSC Murr gave evidence of her serious concerns as to the applicant’s risk of reoffending. She stated this concern would not be alleviated by the measures proposed to be put in place, namely the GPS monitoring, surety, conditions in relation to curfew, psychological counselling, and the support offered by the applicant’s wife and parents‑in‑law. The informant expressed concerns as to whether the applicant’s wife would report any breaches of bail, the ‘idealistic’ nature of their relationship, and the applicant’s level of insight into the allegations.
Failing to surrender into custody in accordance with the conditions of bail
The respondent submits that the applicant has limited ties to Australia. It is noted that the applicant has lived most of his life in Iran, where his mother still lives, and that his wife and her parents are his only connections in Australia. Despite this, it was conceded in cross examination of DLSC Murr that there have been no particular actions taken by the applicant, such as arrangements in relation to travel or travel documents, that suggest this concern was beyond the normal concerns about flight that might be held in relation to any person on bail.
Analysis and conclusions
As noted above, the applicant bears the burden of satisfying the court that a compelling reason exists to justify the grant of bail.
The compelling reason test
Bail must be refused unless the applicant can satisfy the court that a compelling reason exists that justifies the grant of bail.[10] In determining this question, the court must have regard to the relevant surrounding circumstances, including those in s 3AAA(1) of the Act.[11]
[10]Ibid ss 4A(3) and 4C(1)–(2).
[11]Ibid s 4C(3).
The phrase ‘compelling reason’ is not defined in the Act. In Rodgers v The Queen, Beach, Kaye and Ashley JJA summarised the relevant principles, as follows:[12]
(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’.[13]
[12][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[13]Ibid [43] (footnotes omitted).
If the applicant succeeds in satisfying the court as to the compelling reasons test, the onus then falls on the prosecution to satisfy the court that:
(a) there is a risk that the applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness, obstruct the course of justice in any manner, or fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk, that cannot be mitigated by the imposition of any bail conditions.
In reaching a conclusion in relation to both tests, the court must consider the surrounding circumstances.
With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that compelling reasons exist?
As a starting point, I note that the parties both submitted that it is open to the court to find that compelling reasons are made out in this application. Despite this concession, the court must still be independently satisfied that this threshold has been met.
The applicant has pointed to a number of circumstances, as he is entitled to do, in submitting that the compelling reason threshold has been met in this case. Having considered these circumstances, I make the following observations and conclusions in determining this application.
Nature and seriousness of the allegations
The allegations are very serious indeed, given they involve a number of children apparently unknown to the applicant being compelled to engage in sexual acts, in broad daylight, in a public area. It is apt to characterise the alleged actions as brazen. Whilst it is not asserted that the applicant himself penetrated any of the complainants, it is alleged he actively and forcibly encouraged the act of sexual penetration by a young person upon another young person. Further, and whilst this was occurring, it is alleged he masturbated in the presence of the complainants, and touched the breast of the female complainant SB. As well as having forced SD to comply with his demands when he hesitated, it is also alleged the applicant forcefully pushed one alleged victim backwards and forwards during the act of penetration. Whilst a weapon was not used to compel the acts, it appears the complainants were very frightened and intimidated, sufficiently enough to comply with the applicant’s alleged demands.
Nature and strength of the prosecution case, delay and possible sentence
Whilst it is too early, and indeed not the role of this court to form firm conclusions about the strength of the prosecution case, it does not appear to me to be a weak case, or one foredoomed to fail. On the other hand, in my opinion it is a case that is reasonably strong, given a number of circumstances, particularly the broad consistency in the accounts of the three complainants, and their swift actions in calling the police and identifying the applicant as the alleged perpetrator soon after the alleged events occurred. The applicant has also made comments, as has his wife, to police that can be read as placing him at the scene during the alleged events. Whilst an alternative hypothesis may be put forward by the defence, as is the applicant’s right, it appears at this stage that there is merit, or at least some substance, to the prosecution case. This must be seen in the context of still outstanding DNA analysis, which is likely to provide further answers, one way or another. The suggestion of pursuing an e‑crime analysis of the mobile phones of the complainants also arose during the cross examination of the informant. This has not yet been done, and at this stage of the investigation, it is not possible to say whether it will occur, or what any possible results may demonstrate.
The applicant has submitted that there are aspects of the prosecution case that are contestable, and I have taken that submission into account.
In my opinion, should the applicant be found guilty of the alleged offending, he almost inevitably faces the prospect of a lengthy term of imprisonment. Whilst it may be that the applicant’s matters do not get to trial until late 2024, I do not consider this to be an excessively lengthy delay in light of the potential sentencing outcome, if the applicant is ultimately found guilty.
Bail support proposals
Much time was dedicated in this application to the proposals in relation to psychological treatment proposed to be provided by Mr Hanley, and GPS monitoring to be provided by BailSafe. Whilst I have considered these factors in respect of both the compelling reason and unacceptable risk tests, I consider they are particularly relevant to the latter, and I consider them in more detail in my reasons below.
Personal circumstances
I accept the applicant has supportive family members. Their support appears unwavering and they are aware of the allegations against the applicant. The availability of a substantial surety assists in providing compelling reasons for a grant of bail. He also has a stable home address and, it appears, available employment. It must be noted however that his employer is apparently unaware of the allegations and no evidence has been put forward in relation to the applicant’s future prospects of employment, or his employer’s willingness to have him return to work, in light of the allegations before the court. Furthermore, the character evidence material placed before the court gave no indication that the authors were aware of the allegations made against the applicant.
I have given due consideration to the fact the applicant and his family are in a challenging and precarious financial position. There is a substantial mortgage over his and his wife’s home, and his wife is struggling to make the appropriate payments on her own. I understand the applicant also supports family members in Iran. Without the applicant being granted bail and able to work, these challenges will likely be compounded.
The applicant also has no criminal history and has never experienced custody before. His experience of custody is likely to be made more challenging due to the fact he requires an interpreter.
Conclusion on compelling reasons
Having considered and balanced all the matters put, in all the circumstances, despite some reservations, I am nevertheless prepared to accept that the applicant has satisfied the compelling reason test required to grant bail.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
Having found that the compelling reasons test has been satisfied, that is not the end of the inquiry. The second limb of a bail application, regarding whether the respondent has satisfied the court that the applicant poses an unacceptable risk, must now be considered.
The question to ask is whether any of the risks set out in the Act could be made acceptable by the imposition of conditions. As has been often observed when assessing risk, it is not a question of whether the risk can be eliminated, but rather whether it can be reduced to an acceptable level.
With respect to the risk of flight, or failing to answer bail, I note the availability of a surety. Without being fully appraised of the financial circumstances of the applicant’s wife and parents, I accept the amount of $50,000 is substantial to the persons providing the amount. Furthermore, whilst it can be said that the applicant has strong ties to Afghanistan and Iran, without any specific evidence put forward that the applicant might be inclined to take flight, this concern does not rise to such a level that it could not be ameliorated by the imposition of certain conditions of bail.
All of the above matters noted, I do consider the applicant poses an unacceptable risk of committing further offences or endangering public safety if granted bail. Ultimately, I do not consider that sufficient conditions can be put in place to ameliorate the risk to an acceptable level, for the following reasons.
First, the nature and seriousness of the allegations are extremely concerning, as well as being of a somewhat unusual nature. The allegations include the use of intimidation, force, and the preparedness to use firm if not strong physical contact to carry out the behaviour alleged, in respect of two male children and one female child. Whilst acknowledging the allegations are as yet unproven, on one view they are also capable of demonstrating a level of boldness in what is alleged to have been the targeting of a group of three children in broad daylight, in a public reserve, where it might be expected the public could be present at any moment. Furthermore, comments alleged to have been made by the applicant such as “I didn’t rape”, and “my crimes are not that serious”, are troubling and can suggest a serious misunderstanding of the gravity of the type of conduct alleged. A lack of insight as suggested tends to support a concern that offending as alleged in the present instance could occur again. In short, I am of the opinion there is an unacceptable risk that the type of conduct alleged to have been perpetrated is not capable of being deterred by conditions that could be attached to a grant of bail.
Second, I am not satisfied that the treatment proposed by Mr Hanley would significantly reduce the risk of the applicant committing sexual offences against children. Of particular importance is that Mr Hanley has not, as yet, and as explained, conducted an extensive risk assessment, but rather his focus has been directed towards treatment of a problem. It is difficult to determine what exactly his treatment might centre on, and therefore how effective it may be. Such treatment as could be provided must also be evaluated in the context of an applicant who vehemently denies the allegations, and it appears, has not demonstrated any insight into the seriousness of these allegations. Whilst Mr Hanley confirmed that treatment may still have a positive effect without such insight, he was unable to be any more specific. Further, sessions with Mr Hanley would only occur once fortnightly, which in my opinion would not represent a sufficient degree of intensity. As well, in the context of a lead‑in period that might be required to establish efficacy, it is noted that Mr Hanley will not be available for consultation during a substantial period over January 2024. Finally, I have also taken into account the various statements made by the applicant to the Dari interpreter, to his wife, and to Mr Hanley, which together, are capable of supporting the proposition that the applicant appears to have quite limited insight into the circumstances of his alleged offending, which is a factor relevant to the assessment of risk.
Third, in my opinion, the availability of GPS monitoring through the BailSafe program is not sufficient to ameliorate concerns about the applicant’s risk of future offending. Whilst it has been submitted by the applicant’s counsel that the device can be programmed in various ways to ‘prevent’ him from going to nearby schools, bus stops and reserves, as examples, it is impractical to think that every possible place in the vicinity of the applicant’s home where children may be can be isolated by geo‑fencing. In my opinion, the applicant’s movements could not be restricted to such an extent that he could not effectively be prevented from coming into contact with children in a manner similar to that alleged. It must be noted that the applicant would likely spend time around the children of his parents‑in‑law and may come across children as part of the observation of his religion, or a myriad of other places. Further, even if the applicant was to enter a ‘geo‑fenced’ area, there are unavoidable lags between the time at which an alert is received by the BailSafe control room and when police may attend the scene. In short, if the applicant was tempted to offend against children, I am not persuaded that a GPS tracker would, along with other factors, represent a sufficient form of deterrent, even though it may make him easier to apprehend after the fact. I accept nevertheless that a GPS system may inform authorities as to the travel and movements of the applicant should he attempt to access major points of international departure, however. In my view, given the facts and circumstances of the particular allegations, the ongoing risk of committing further offences against children is the more dominant concern in this application, which cannot be reduced to an acceptable level.
I pause at this point to comment that shortly after this matter became reserved for judgment, the court received a lengthy email from Mr Oppy. The communication appears to have been an explanation and apology to the court in respect of a matter that arose during the applications. The court did not respond to the email. It was noted that the email was not copied to the prosecution but was copied to a solicitor who may have been previously employed by a firm of private solicitors but is now employed at Victoria Legal Aid, which firm is not on the record as acting for the applicant. In effect, this meant that neither the prosecution nor defence in this application were informed about the communication. Accordingly, the court forwarded the email to the parties for comment. In responses, neither party has suggested that the terms of the communication should be ventilated in open court and did not suggest further action needed to be taken. No fault in any way attaches to the parties who appeared in and argued this application. I make it clear that the email, and the contents of it, have not in any way affected the decision I have made in this case. I have disregarded the matters raised in the email in making my decision. Finally, I make comment that an approach of this kind from a witness directly to the judge hearing a matter where the decision of the court is pending, and particularly where the parties are not informed of the communication, is entirely inappropriate and should not have occurred.
Accordingly, having taken all matters into account, I have concluded that the respondent has satisfied me that the applicant poses an unacceptable risk that cannot be ameliorated by the imposition of bail conditions, pursuant to the statutory test.
Conclusion
The application will be refused.
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