Re Rafat - [2023] VSC 710

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0262

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an Application for Bail by Morteza RAFAT

BETWEEN:

MORTEZA RAFAT	Applicant
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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Rafat

Details

AGLC: Re Rafat [2023] VSC 710
Case: [2023] VSC 710
Decision Date: 28 November 2023

CaseChat Overview and Summary

In the case of Re Rafat, the applicant faced charges of serious sexual offences against children, including rape by compelling sexual penetration, encouraging a child under 16 to engage in sexual activity, sexual assault, and sexual exposure. The matter was heard in the Magistrates' Court of Victoria, presided over by Magistrate A. The applicant had no prior criminal history and proposed to be electronically monitored via GPS if granted bail.

The central legal issues revolved around whether the applicant demonstrated compelling reasons for bail under the Bail Act 1977 (Vic), and whether the risk of reoffending or interfering with witnesses was unacceptable. The court considered the nature and seriousness of the charges, the applicant's lack of insight into the alleged offending, and the potential impact on the community and the victims. The applicant argued that family support and the availability of GPS monitoring would ensure compliance with bail conditions.

Magistrate A determined that the applicant had not shown compelling reasons warranting bail. The court found that the risk of reoffending was significant due to the lack of insight into the alleged offending. Additionally, the court was concerned about the risk of interference with witnesses and the potential impact on the community, especially given the vulnerability of the victims. Consequently, bail was refused.

No further orders were made beyond the refusal of bail.

Orders