Re Rodgers
[2019] VSC 553
•20 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0157
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by CHRISTOPHER RODGERS |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 August 2019 |
DATE OF JUDGMENT: | 20 August 2019 |
CASE MAY BE CITED AS: | Re Rodgers |
MEDIUM NEUTRAL CITATION: | [2019] VSC 553 |
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CRIMINAL LAW – Bail – Family violence offences alleged against wife and one child – Repeated offences involving pressure to neck of wife, one including use of ligature – Fractured hyoid bone found on examination after one event – Violence in front of children in family home – Intervention order and adjourned bond at time – Applicant the owner of a transport company – Financial future of company imperilled by continued incarceration of applicant – Whether compelling reason shown – Whether unacceptable risk – Serious offending – Strong prosecution case – Delay not lengthy – Compelling reason not shown – Unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E, and 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Damian Sheales | Tait Lawyers |
| For the Respondent | Mr Stephen Payne | Legal and Prosecutions Specialists Branch, Victoria Police |
HIS HONOUR:
Introduction
The applicant applies for bail on a number of charges laid against him on 25 May 2019 in respect of conduct alleged to have occurred between 3 December 2018 and 24 May 2019. The alleged offences arise out of family violence related incidents where the complainants include his former wife and children. The charges the applicant faces include multiple charges of causing injury intentionally and recklessly, a charge of recklessly causing serious injury, charges of reckless conduct endangering life and endangering person, a charge of making a threat to kill, drugs charges, a charge of criminal damage, and numerous breaches of family violence intervention orders (‘FVIOs’).
It is common ground between the parties that many of the charges the applicant faces including one charge of making a threat to kill under s 20 of the Crimes Act 1958 and numerous family violence related offences are Schedule 2 offences under the Bail Act 1977 (‘the Act’), which places the applicant in a position where he must demonstrate that a compelling reason exists in favour of bail.[1]
[1]Bail Act 1977, ss 4AA(3) and 4C.
Procedural history
Turning to the procedural history, the applicant was arrested by police on 24 May 2019, and has been in custody since such date. A previous application for bail was heard and bail was refused on 28 June 2019 in the Ballarat Magistrates’ Court.
Personal circumstances
The applicant is 34 years old and prior to his remand was the sole director of his own trucking business. He has lived in Ballarat for all of his life and comes from a supportive family who remain looking after the business whilst the applicant is incarcerated. The applicant has a limited prior criminal history for offences of violent and drug related offending. He was actually on a bond for assault at the time of the current offences. The victim of that assault was his former wife (‘the complainant’) .
The applicant has a history of substance abuse beginning in around 2008-2009. The applicant attributes his drug use to coping with significant life stressors such as running his own business and witnessing traumatic events including the death of his grandfather.
The applicant and the complainant met in 2007 and married in 2016. Their marriage broke down shortly after and they separated in November 2017. They have two children together, two girls aged eight and six years old. The applicant’s wife has two other children from a previous relationship, a female aged 12 and a male aged 14 years of age.
On 21 November 2017, a full no-contact FVIO was issued naming the complainant and the four children as the protected persons.
The applicant and the complainant resumed their relationship and on 3 April 2019, the FVIO was varied to allow contact between the applicant, the complainant and their children, and to permit the applicant to live with the complainant. At the time of the alleged offending, the applicant was residing at 22 MacArthur Park Boulevard with the complainant and the children.
Circumstances of alleged offending
It is alleged that on 7 May 2019, the applicant and the complainant had a verbal argument at home. The applicant then allegedly assaulted the complainant by head-butting and punching her. The complainant sustained a black left eye, a sore cheek bone, and bruising to her right arm and shoulder as a result of the assault, which was witnessed by the applicant’s step-daughter.
Five days later on 12 May 2019, the applicant and the complainant planned to attend the applicant’s mother’s house, together with their children. An argument ensued when the applicant allegedly told the complainant to cover her bruises with makeup. He then allegedly pinned the complainant against a towel rack, grabbing her throat and pushing her head through the wall, while threatening her that he would drain their bank account and take their daughters to America.
It is further alleged that when the complainant went to use the computer, the applicant wrapped a phone charger cord around the complainant’s neck and pulled it tight. This was witnessed by the applicant’s step-daughter who screamed for him to stop. When the complainant tried to leave, the applicant picked up the complainant and threw her onto the bed, causing her to fall off the bed onto her back. The alleged offending continued as the applicant pushed the complainant against the shower door causing the door to fall and strike the complainant’s foot, injuring the complainant’s foot and left shoulder. He then pushed her which caused her to fall to the ground, hitting her head.
During the same incident, at a point when the applicant had his hands around the throat of the complainant and was choking her, her son grabbed the applicant from behind to get him to stop. The applicant allegedly grabbed his step-son by the throat, and then a little later, broke into his bedroom and yelled at him. This incident was also witnessed by the applicant’s step-daughter.
On the afternoon of 24 May 2019, the complainant returned home to the applicant and her four children. It is alleged that the applicant verbally abused the complainant in front of the children when she refused to eat dinner with him. Following dinner, the complainant tried to leave with her two eldest children, but was unable to do so as the applicant had taken her keys and phone, in order to prevent her from calling the police. During this incident, the applicant smashed the complainant’s mobile phone breaking the screen, at which point the confrontation became physical. It is alleged that the applicant then grabbed the complainant around the neck and dragged her back inside, where she was thrown to the ground, causing her to momentarily lose consciousness or the ability to move. Soon after, the applicant, whilst on top of the complainant, placed his hands around her neck and applied pressure to her neck. The complainant managed to escape this attack by kicking him backwards into the study wall, causing damage to the wall. The complainant told her eldest daughter to contact police. The applicant threatened his step-daughter in response to this request. She was able to contact her mother’s friend who contacted police.
Police attended and the complainant handed them a box containing photographs of her injuries sustained as a result of previous incidents of family violence by the applicant. The complainant was the conveyed to hospital where she was treated for a broken hyoid bone in her throat and substantial bruising on her upper chest, arms and legs.
The applicant was arrested by police and a small quantity of methamphetamine (‘ice’) was located. Police also identified a hole in the wall of the study as well as numerous other repaired holes throughout the house.
Upon interview with police, the applicant stated that he uses illicit substances on weekends and had used ice at lunchtime on 24 May 2019. He stated that he had used physical force as a means of calming the complainant but denied strangling her, stating that her bruising was caused during consensual sexual intercourse between the pair.
The law
Turning to the law, s 1B of the Bail Act provides in part as follows:
(1) The Parliament recognises the importance of:
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty.
…
(2)It is the intention of Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 4 of the Act reads:
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 of the Act sets out circumstances in which a 2 step test applies to the consideration of a grant of bail. Subsection (3) dictates that the ‘show compelling reason’ test applies to a decision to grant bail to a person accused of a Schedule 2 offence.
Section 4C of the Act has application where the ‘show compelling reason’ test applies. Subsection (1A) reads:
The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.
Subsections (2) and (3) of section 4C indicate that the applicant bears the burden of satisfying the bail decision maker as to the existence of a compelling reason, and that the bail decision maker in considering that question must take into account the surrounding circumstances.[2]
[2]Defined non-exhaustively in s 3AAA of the Act.
Section 4E of the Act reads:
(1)A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that –
(a) there is a risk that the accused would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
(2) The prosecutor bears the burden of satisfying the bail decision maker –
(a)as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3)In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must –
(a) take into account the surrounding circumstances; and
(b)consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
In addition, pursuant to s5AAAA(1) of the Act, the Court must make inquiries of the prosecutor as to whether there is a FVIO or any other family violence safety notice or domestic violence order in force made against the applicant. Additionally, the Court must consider whether there would be a risk that the applicant would commit family violence if released on bail and whether that risk could be mitigated.
The meaning of ‘compelling reason’ was considered by Beach JA in the bail decision of Re Ceylan. In that case his Honour stated:
Similarly, an enquiry under s4(4) as to whether an accused shows compelling reason why his or her detention in custody is not justified is an inquiry that involves a consideration of all the relevant circumstances including the strength of the prosecution case and the history and personal circumstances of the accused. When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.
Later in the decision his Honour stated:
While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified… While again one should guard against substituting the statutory language, in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as a reason which is difficult to resist.
The statutory provisions which applied at the time of Ceylan have since been amended. The current provisions were considered by Beach JA in the recent bail decision of Re Alsulayhim [2018] VSC 570. His Honour considered that in spite of the change in language of the relevant provisions, there was no reason to depart from the analysis or holding in Ceylan concerning the proper construction of the expression of compelling reason.
Evidence
Anne-Maree Rodgers, the mother of the applicant, swore an affidavit which was filed with the Court. In the affidavit she set out some background to the applicant’s trucking business, Easy Tippas Pty Ltd (‘Easy Tippas’), which he set up 10 years ago. Mrs Rodgers and her husband, the applicant’s father, own and operate their own transport company in the Ballarat area, Chrisbev Pty Ltd (‘Chrisbev’). In addition, Mrs Rodgers is familiar with and can speak to the financial situation of Easy Tippas, having for years prepared the books of account of the company.
In her affidavit she set out the assets and liabilities of Easy Tippas. The company has a number of outstanding loans which have been serviced by the income of the company. Since the incarceration of the applicant, the loans have only been able to be serviced with the assistance of Chrisbev. The measures instituted by Chrisbev to keep Easy Tippas afloat were short term ones and are not sustainable. When the assistance ceases, Easy Tippas will be in default on its loans and would face liquidation. The applicant would himself face the prospect of his personal guarantees being called upon.
Mrs Rodgers was called to give evidence during the bail application. She indicated in evidence-in-chief that if released on bail, the applicant could reside in her apartment in Ocean Grove and keep a truck or trucks on some land owned by other members of the family in Moolap. It is not necessary to set out a summary of the cross examination.
I make the point that it is clear that only the admirable efforts of the parents and brother of the applicant have been able to keep his business afloat. Those efforts cannot continue in the long term.
Detective Sergeant Adam Tink, one of the respondents, was called during the application. He gave some brief evidence about the case against the applicant. In addition, he informed the Court that the attitude of the complainant is that she is scared of the applicant and does not want him to be released on bail.
Applicant’s submissions
Mr Sheales for the applicant submitted that the financial circumstances of the applicant alone would be sufficient to establish a compelling reason for the grant of bail. He did not rely, however, on that matter in isolation. It should be considered in light of the personal circumstances of the applicant, the strength of the case against him, the likely sentence which would be passed by a court, and the likely delay before this matter would be heard.
As to the financial circumstances, the submission of Mr Sheales was that if bail is refused, the applicant will effectively be financially ruined. The inevitable outcome of a refusal of bail would be that he would be in default on the business loans, the company would be liquidated, and the applicant would thereafter be unable to provide gainful employment to himself. These were circumstances far removed from those which would apply in other bail applications.
In respect of the strength of the evidence against the applicant, Mr Sheales took issue with the claim made in the prosecution outline that the prosecution case on all charges was very strong. Mr Sheales did not go so far as to submit that the case was weak, but he submitted that it was not an overwhelming case and there were serious issues to be tried. Tara Rodgers, whose account would be at the heart of the prosecution case, it was submitted, was herself an habitual drug user, which may call into question her credibility. There was considerable vagueness to her account in her statement of 6 June 2019. As for the VARE recordings of the children, Mr Sheales indicated that these had not yet been viewed by the defence and could not be commented upon. The DREIC[3] of Tara Rodgers in respect of the 24 May 2019 events had also not been viewed by the defence, so, again, could not be commented upon.
[3]Digitally recorded evidence-in-chief, pursuant to Division 7B of the Criminal Procedure Act 2009.
In respect of the fracture to the hyoid bone of the complainant which was discovered after the events alleged on 24 May 2018, there was a possible innocent explanation for this injury to be found in the sexual practices of the applicant and the complainant, and it may not be possible for a tribunal of fact to find that it was necessarily caused by an assault upon the complainant.
On the question of delay, the position of Mr Sheales was that it is difficult to ascertain when the matter would actually proceed. Although the affidavit in support of bail sworn by the defence solicitor indicated that it was likely the matters would be resolved as pleas of guilty to appropriate charges[4], Mr Sheales held out little hope of a resolution, which would not occur unless the prosecution agreed to a disposition with no further custodial sentence. Whilst further attempts would be made to resolve the case, Mr Sheales indicated that if there was no resolution, he would advise the applicant not to consent to summary jurisdiction, and the matter would proceed to trial, extending the delay substantially. At first, the position of Mr Sheales was that I should consider delay in the context of a matter which would go for trial. Later in his submissions, he put it that I would be falling into error to consider that the matter might resolve. Rather, I should view as the minimum time frame for completion of the case the period of time it would take to progress through the summary stream, which would be until about January 2020.
[4]Affidavit in Support, paragraph 10(g)(v).
In respect of the question of the likely sentence should the applicant be found guilty of the charges he faces, Mr Sheales made the submission that the only real sentencing option would be a community correction order (‘CCO’), or a combined CCO and term of imprisonment.
In respect of the personal circumstances of the applicant, Mr Sheales emphasised the supportive family background of the applicant, the importance of his children to him and the reality that his continued contact with them is highly desirable, the availability of a place to live well away from the complainant, his willingness to undergo treatment and counselling in respect of his drug use, his limited prior convictions, the fact that he has shown no predilection for violent offending when not living with the complainant, and the importance to the community of his ultimate rehabilitation.
In summary, Mr Sheales maintained that a compelling reason had clearly been shown, and that the real issue was unacceptable risk. Whilst there may be a risk of the applicant reoffending or endangering the complainant, such risk could be reduced to an acceptable one by the imposition of strong conditions, including one preventing him from going anywhere near his former family home.
Respondent’s submissions
Mr Payne, for the respondent, went through the various considerations in s 3AAA of the Act. Some of those considerations were standout ones so far as importance was concerned in this case.
On the question of the seriousness of the offending, he submitted that the offending was inherently serious and that the particular offences were serious examples of such charges. On multiple occasions over multiple days, in the context of family violence, the applicant had used his hands, and in one case, a phone charger cord, to apply dangerous pressure to the neck of the complainant. Not only did these events take place in the family home of the complainant, but a number of the alleged offences occurred in the presence of one or more of their children. In addition, one of the children was himself allegedly assaulted by being grabbed around the throat. The question of the seriousness of the offending should be considered in light of what Mr Payne described as a propensity for the applicant to strangle the complainant or the male step-child. Furthermore, it was relevant that the applicant had a prior finding of guilt of assault concerning the same victim.
In respect of the hyoid bone fracture, Mr Payne submitted that whilst causation may be in issue, that would need to be assessed in light of the totality of the evidence, including the clear precautionary measures put in place where pressure was applied to the neck during consensual sexual activity.
In respect of the strength of the prosecution case more generally, the content of the VAREs of the children was supportive of the complainant’s account. As for her allegations, even if the ‘potentially blurry’ allegations contained in the statement of 6 June 2019 were ignored, her account in the DREIC in respect of the 24 May 2019 offending shows that to be inherently serious offending supported by a strong prosecution case.
Mr Payne took issue with the defence submission as to the likely sentence should the applicant be found guilty. If found guilty, it was almost inevitable that he would receive a custodial sentence. That was not to say that a CCO may not also be within the range.
In respect of s 3AAA(1)(e)(v), it was of note that the applicant was subject to an adjourned bond at the time of the alleged offences. As for s 3AAA(1)(g), an intervention order was in place at the time of the offending, albeit one which had been varied to permit contact. A full non-contact order is now in place.
Mr Payne took issue with the assertion that the applicant’s business would necessarily fail should bail be refused, The family through their good efforts have been able to keep the business running thus far, and there would be the potential for another driver to be put on to cover for the applicant.
Mr Payne pointed out that the complainant is afraid of the applicant, and does not want him to be released on bail. I should take this into account.
In respect of the time frame for the finalisation of the charges, there were a number of hypotheticals involved in this. The matter might resolve. This was unclear. It was impossible for any conclusion on the likely time frame to be anything other than speculative. If, however, it became apparent that the delay was actually going to be inordinate or lengthy, there would always be the possibility of a further application for bail.
In respect of the risk of future offending, it was unacceptable. As to the defence assertion that the applicant’s alleged offending was not something which exposed the broader community to risk, the complainant and her children were part of the community. Furthermore, there is the prospect that in future, in spite of a grant of bail with conditions, that the complainant might again, as she has done in the past, acquiesce to the presence of the applicant in her house. In addition, the risk of missteps by the applicant needed to be considered in light of his long-term issues with drugs, so far untreated, and the fact of there also being unresolved family law proceedings which would involve pressure and stress.
Analysis
Turning now to my analysis of the matter, I have regard, of course, to the matters set out in s 3AAA of the Act. Those matters, by way of surrounding circumstances, are relevant or would be relevant at both stages of my deliberations on this matter, both in the consideration of the question of whether or not the applicant has satisfied me that there is a compelling reason why bail should be granted, and then, if I come to it, in the consideration of whether or not the respondent has satisfied me of the existence of an unacceptable risk.
The first and most important matter for consideration is the nature and seriousness of the alleged offending. In spite of the somewhat surprising fact that the charges were initiated and at this time remain in the summary stream, the allegations are exceedingly seriousness. For a person, in anger, to grab another around the throat and deliberately apply pressure in doing so is an inherently dangerous and serious thing to do. It is alleged that the applicant did this to the complainant on multiple separate occasions on two different days in May 2019. On one occasion, he is alleged to have taken the even more serious course of wrapping a cord around her neck and pulling it tight. This offending is quite disturbing, with a significant and worrying risk of causing serious injury or death.
That is so whether or not it can be established that the fracture to the hyoid bone was caused by an assault perpetrated by the applicant. In this regard, it will be a matter of what the overall evidence is capable of establishing. There is some material which may raise as a prospect that the injury to the hyoid was caused by consensual activity between the applicant and the complainant. That is not to say, however, that the prosecution will be unable to prove that it was the applicant who inflicted this injury in the course of one of his assaults upon the complainant.
In the context of a charge of recklessly causing serious injury, whether or not a particular injury is serious or not is a matter for the tribunal of fact. For what it is worth, bearing in mind the definition of serious injury set out in the Crimes Act 1958,[5] it seems to me the prosecution may well be able to establish that a fracture to the hyoid bone is a serious injury. If it can be established that the applicant inflicted this injury in an assault upon the complainant, that would be a very serious crime.
[5]Section 15.
The choking events and some of the other alleged violence took place in the presence of one or more of the children of the complainant, and in each case, occurred in the family home. In addition, the applicant is alleged to have assaulted his step-son, again by applying force to his throat. In my view, the seriousness of the offending of the applicant is an important matter for the Court to consider.
As for the strength of the prosecution case, it is somewhat difficult for me to definitively assess this as I have not had the opportunity of viewing the DREIC of the complainant or the VAREs of the children. As far as I can tell, however, the case could by no means be described as weak. Indeed, as much of the offending occurred in the presence of one or more of the children, there may end up being substantial support for the account of the complainant. In addition, there are photographs and other evidence confirming bruising and other injuries sustained by the complainant. I think that the case against the applicant can be realistically considered to be quite strong.
The applicant’s criminal history is brief, but it is significant that he has been found guilty of assaulting the complainant in the recent past. Furthermore, it is of note that he was on an adjourned bond for that assault at the time of the offending alleged here.
It is highly relevant that the applicant was subject to a family violence intervention order at the time of the alleged offending. It was not sufficient to control or moderate his behaviour. There is presently a full order in place against him.
There is no doubt that many aspects of the personal circumstances of the applicant are much to his credit. He has a supportive family behind him, and is the operator of a transport company which, in his absence, is struggling to stay afloat. It would clearly be a very regrettable thing were that company to go into liquidation. I am confident that the family of the applicant will do its best to avoid that outcome, but I accept that their assistance cannot last indefinitely.
One aspect of the personal circumstances of the applicant is his long-term drug use which has obviously been a serious problem for him and would no doubt have had a substantial input into his alleged offending. I am conscious of the existence of the CISP report which holds out hope of treatment. As things stand at the moment, however, the applicants drug addiction is an unresolved concern which would increase the risk of his failing to comply with conditions of bail.
Another matter I take into account is the known attitude of the complainant to bail. She is afraid of the applicant, and does not want him to be released on bail.
As to the length of time the applicant would be likely to be in custody were bail refused, it is difficult to assess. If I act upon the submission of Mr Sheales that I should consider that the matters would not be resolved summarily until about January 2020, that would involve a significant period of additional custody before the charges are finalised. At this time at least, however, the delay is not of the order frequently contemplated by this Court where a trial on indictment is the inevitable future prospect.
As for the likely sentence to be imposed should the applicant be found guilty of the offences he faces, that would depend on a number of matters, including the sentencing facts, the jurisdiction in which sentence was to be imposed, and whether the applicant had pleaded guilty or not guilty. I do not accept the submission of Mr Sheales in this regard that a CCO alone or in conjunction with a term of imprisonment of one year would be the worst possible outcome for the applicant. In my view, the seriousness of the offences alleged would speak strongly against that contention. If the applicant is found guilty of the charges he faces, which include charges of reckless conduct endangering life and recklessly causing serious injury in respect of an event in which it is alleged the applicant fractured the hyoid bone of the complainant by applying strong force to her neck, it is apparent that he might receive a term of imprisonment significantly exceeding that which could be imposed in conjunction with a CCO.
When I consider the combination of all of the circumstances of this case, I am not satisfied that there is a compelling reason that would justify a grant of bail to the applicant.
Even had I been so satisfied, there are a number of matters that would have caused me to have real concerns about the risks inherent in the release of the applicant. It is alleged that he repeatedly and violently assaulted his wife, with a particular disturbing focus on the application of pressure to her neck. The offending alleged took place in the context of ongoing drug use by both the applicant and the complainant. The offending took place in spite of the fact that there was an intervention order in place which was meant to prevent him from assaulting her, and in spite of the fact that he was subject to an adjourned bond for a previous assault upon her. In future, whatever may be the disincentives for contact with the complainant, the urge may be very strong in the applicant to see her and the children. The fact that he would be required by conditions of bail to live far away from his home in Miners Rest, and, when carrying out his employment, to skirt around the area where he has lived for some years, would not reduce the risks to a level where they would be acceptable.
In all of the circumstances, I consider that there would be an unacceptable risk that, if released on bail, the applicant would endanger the safety and welfare of people, namely, the complainant and her children, or commit an offence or offences while on bail.
Conclusion
In all of the circumstances of this case, the application for bail must be refused.