Re Rodgers [No 2]
[2019] VSC 760
•20 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0227
| 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: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 November 2019 |
DATE OF JUDGMENT: | 20 November 2019 |
CASE MAY BE CITED AS: | Re Rodgers [No 2] |
MEDIUM NEUTRAL CITATION: | [2019] VSC 760 |
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CRIMINAL LAW – Bail – Schedule 2 offences – Applicant required to show compelling reason justifying grant of bail – Whether compelling reason established – Whether unacceptable risk – Conditions of bail – Conditions of bail imposed to mitigate risk – Bail granted on strict conditions – Bail Act 1977, ss 1B, 3AAA, 4AA, 4C, 4E and 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H Spowart | Legal & Prosecutions Specialists Branch, Victoria Police |
| For the Applicant | Mr D P Sheales | Tait Lawyers |
HIS HONOUR:
The applicant has been in custody since 24 May 2019. He is currently charged with 33 offences, 32 of which arise out of incidents alleged to have occurred on three days in May of this year, and one of which involves the contravention of an undertaking given to the Ballarat Magistrates’ Court in July 2018 pursuant to s 83AC of the Sentencing Act.
The primary complainant in relation to the applicant’s alleged offending is his wife, although the alleged offending is also said to involve the complainant’s children. A number of the offences with which he is charged are schedule 2 offences within the meaning of s 3 of the Bail Act 1977 (‘the Act’).[1] As a result, the applicant is required to establish that a compelling reason exists that justifies the grant of bail before bail can be granted.[2] Additionally, bail must be refused if the prosecution satisfies the Court that there is an unacceptable risk that the applicant 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.[3]
[1]See items 7, 18, 19 and 23 of schedule 2 of the Act.
[2]See s 4C(1A) of the Act.
[3]See s 4E(1)(a) of the Act.
The applicant has previously applied for bail in this Court. That application was refused by Tinney J on 20 August 2019.[4] On 26 September 2019, an appeal to the Court of Appeal by the applicant was dismissed.[5]
[4]Re Rodgers [2019] VSC 553 (‘First Reasons’).
[5]Rodgers v The Queen [2019] VSCA 214 (‘Appeal Reasons’).
The applicant now applies for bail again in this Court.
Applicant’s background and circumstances of the alleged offending
The applicant’s background was relevantly summarised by the Court of Appeal in its reasons for dismissing the applicant’s appeal from the decision of Tinney J. For present purposes, it is sufficient to adopt the Court of Appeal’s summary as follows:
The [applicant] is 34 years of age and has lived in Ballarat all of his life. His parents, who also live in Ballarat, run a trucking business. He has two brothers who work in his parents’ business and a sister who works as a dental nurse. His family is supportive of him and none of them have ever been in trouble with the police.
The [applicant] left school in Year 10 and began working for a sand and soil supplier, before working in his parents’ trucking business. At the age of 23, the [applicant] bought a truck and started his own trucking business, Easy Tippas Pty Ltd. He is the sole director of that company. During the 18 months prior to his arrest and remand, the [applicant] expanded his business to three trucks, and as a result became indebted to finance companies in an amount of approximately $1 million. His repayments to the finance companies are approximately $18,000 per month. In his business, the [applicant] employs one fulltime driver. He used to employ an additional part-time driver, but since he has been in custody he has had to put off that driver. The [applicant’s] parents are currently doing what they can to keep the [applicant’s] business operating. There is, however, an issue as to how long that situation is capable of continuing.
The [applicant] met his wife in 2007, and married in 2016. They have two children together, aged six and eight. The [applicant’s] wife has two other children (the [applicant’s] stepchildren), aged 12 and 14.
In 2017, the [applicant] and his wife separated. Issues between them culminated in the making of a full no-contact family violence intervention order in the Ballarat Magistrates’ Court on 21 November 2017. That order identified the [applicant’s] wife and the four children as the protected persons in respect of whom the order operated.
Subsequent to the making of the intervention order, there was a reconciliation between the [applicant] and his wife and, on 3 April 2019, the family violence intervention order was varied to allow contact between the [applicant], his wife and their children, and also to permit the [applicant] to live in the family home.
The [applicant] has a limited prior criminal history, arising from two court appearances.
In September 2014, without conviction, the [applicant] was fined $1000 for possessing and using methylamphetamine.
On 3 July 2018, the [applicant] was the subject of a finding of guilt on a charge of unlawfully assaulting his wife. The matter was dealt with by way of a non-conviction bond upon the [applicant] undertaking to donate $1500 to the White Ribbon Foundation, provide a receipt to the court on or before 3 December 2018, continue counselling he was then undergoing and provide a letter evidencing the continuation of that counselling by 3 December 2018. It is the failure to comply with this undertaking which forms the basis of the charge laid on 27 June 2019 — a charge to which the [applicant] intends to plead guilty.[6]
[6]Appeal Reasons [7]–[14].
The circumstances of the applicant’s alleged offending were summarised by Tinney J in his reasons for refusing bail in August of this year. For present purposes, it is sufficient to adopt his Honour’s description of the allegations as follows:
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.[7]
[7]First Reasons [9]–[16].
Procedural background
At the time Tinney J refused bail, it appeared likely that the charges against the applicant would be heard in about January 2020. As his Honour said:
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.[8]
[8]Ibid [61].
The appeal from Tinney J to the Court of Appeal was, as the parties accepted in argument before the Court of Appeal, one governed by the principles in House v The King.[9] The Court of Appeal concluded that none of the House v The King errors contended for by the applicant were made out on the appeal, and the appeal was dismissed. In relation to whether Tinney J’s decision against the applicant on the issue of compelling reason was ‘unreasonable or plainly unjust’,[10] the Court of Appeal, said:
While reasonable minds might differ as to whether a synthesis of all of the relevant circumstances established the existence of a compelling reason justifying a grant of bail, this is not a case where the decision made at first instance was, on the facts, unreasonable or plainly unjust.[11]
[9](1936) 55 CLR 499, 505 (‘House’). See further, Robinson v The Queen (2015) 47 VR 226, 253 [86].
[10]The fifth type of error identified in House.
[11]Appeal Reasons [48].
In relation to Tinney J’s conclusion, adverse to the applicant, about unacceptable risk, the Court of Appeal again noted that this was ‘an evaluative judgment upon which reasonable minds might differ’.[12]
[12]Ibid [60].
On 1 October 2019, the applicant appeared at the Ballarat Magistrates’ Court, where he withdrew his consent to summary jurisdiction and ‘elected to go for trial to the County Court’. As a result of that decision, it now appears likely that there will be a committal hearing in February or March 2020. In an affidavit affirmed 18 October 2019, the applicant’s solicitor, Mr Ronald Tait, has deposed to being informed by a listing clerk that a trial at the County Court sitting in Ballarat would likely be listed in approximately October or November 2020.
Applicant’s material and contentions
In support of his application for bail, the applicant relies upon an updated affidavit of his solicitor, Mr Tait.[13] Essentially, relying upon all of the evidence and submissions previously summarised by Tinney J and the Court of Appeal in their respective reasons for judgment, the applicant contends that his personal circumstances, his financial circumstances, the strength of the charges against him, the likely delay until the charges are determined and the lawful sentencing range open to any sentencing court upon conviction all combine to establish a compelling reason justifying the grant of bail.
[13]Affirmed 18 October 2019.
To the submissions made on previous occasions, the applicant adds the fact that, without being granted bail, he is now likely to spend a significantly longer period of time on remand than was in contemplation at the time of his first bail application in this Court.
Additionally, the applicant relies upon a CISP[14] Remand Outreach Program (‘CROP’) report (‘the CROP report’) compiled following an assessment of the applicant by CROP at Barwon Prison on 15 November 2019. The CROP report supports the admission of the applicant to bail, concluding:
The outcome of the assessment is that he [the applicant] is recommended for CISP brief intervention case management by the CROP team.
[14]Court Integrated Services Program.
The CROP report goes on to describe a treatment and support plan that has been arranged for the applicant, should he be granted bail. The elements of that plan are:
·The applicant will reside at an address in Ocean Grove owned by his mother.
·The applicant will attend a further assessment in relation to substance abuse and/or alcohol issues with an accredited worker.
·The applicant will attend a general practitioner for a Mental Health Treatment Plan.
·The applicant will be referred to Relationships Australia in regard to attending programs in Collaborative Parenting and Behavioural Change.
The CROP report concludes with a recommendation ‘that CISP form part of any bail conditions’.
So far as the issue of unacceptable risk is concerned, the applicant submitted that it was within the power of this Court to impose bail conditions that would ameliorate the relevant risks to a point where it could not be said that they were unacceptable. He also placed reliance upon what was submitted to be ‘the salutary effect’ of his current period of incarceration (being his first period in custody) on him and his consequential eagerness not to do anything that might jeopardise his freedom should bail be granted.
The respondent’s contentions
Consistently with the position it has taken to date, the respondent submits that the applicant has still not shown a compelling reason justifying the grant of bail and that, in any event, he is an unacceptable risk of endangering the safety and welfare of the complainant and her children, and committing an offence while on bail. On the issue of unacceptable risk, the respondent points to the applicant’s ‘history of contravention of court orders in terms of intervention orders’ and his addiction to illicit substances ‘which appear to be linked to his offending and violence against the complainant and [her] children’.
As to the condition proposed by the applicant that he reside at premises owned by his mother in Ocean Grove, the respondent contends that this is not suitable because the applicant will be living there alone and without ‘support to meet his bail conditions [or any person who would] notify Victoria Police if [he] does not meet his bail conditions’.
Ultimately, the respondent submitted that bail should be refused because: first, exceptional circumstances were not made out when all the surrounding circumstances were properly considered; and secondly, no conditions could be imposed which would make the risk of the applicant committing further serious harm (potentially with fatal consequences) against the complainant, or further harm against the children.
Contrary to what might have been a concession by the respondent’s counsel before Tinney J,[15] Ms Spowart contended on behalf of the respondent this morning that a CCO combined with a term of imprisonment would not be open in the proper exercise of the sentencing discretion in this case. Thus, it was submitted that there was in reality no prospect that, if bail were refused, the applicant would spend more time on remand than the time to which he was likely to be sentenced.
[15]As to which, see [29] below.
So far as the risk of serious or fatal harm being caused by the applicant was concerned, in its up-to-date material filed in opposition to the application for bail,[16] under the heading ‘Family Violence Risks’, the following contentions were put:
Strangulation poses a significant risk to the safety and welfare of victims.
In particular, research by Victoria Police Family Violence Command demonstrates that a victim of strangulation can lose consciousness within 5–10 seconds of strangulation commencing, death within minutes or even some weeks later due to injuries sustained during strangulation.
Of particular concern to this matter, research demonstrates that women are seven times more likely [to] become a homicide victim of the person that commits the strangulation.
[16]An affidavit affirmed by Craig Stabler on 31 October 2019.
Consideration
The approach to be taken by a court in a compelling reason case was set out by the Court of Appeal in its reasons for dismissing the appeal from Tinney J.[17] It is not necessary to repeat that analysis here. To that analysis, however, should be added references to ss 1B and 5AAAA of the Act.
[17]Appeal Reasons [38]–[40].
Section 1B of the Act requires the Act to be applied and interpreted having regard to the following, to some extent competing,[18] matters:
(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; and
(c)promoting fairness, transparency and consistency in bail decision-making; and
(d)promoting public understanding of bail practices and procedures.
[18]See Re Ceylan [2018] VSC 361 [32] (‘Ceylan’).
Section 5AAAA requires a decision-maker considering the release on bail of an accused charged with a family violence offence to consider;
(a)whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and
(b)whether that risk could be mitigated by –
(i)the imposition of a condition; or
(ii)the making of a family violence intervention order.[19]
[19]I interpolate that there is already a family violence intervention order in place in relation to the applicant and the complainant and her children.
The seriousness of the allegations against the applicant cannot be gainsaid. The Crown case cannot be said to be a weak one (to the extent that Mr Sheales on behalf of the applicant submitted otherwise, I reject that submission). What is alleged against the applicant are some very serious examples of serious offences. That said, one should not lose sight of the fact that the applicant is a person who is required to show that a compelling reason exists that justifies the grant of bail, not a person required to satisfy the more onerous exceptional circumstances test.[20]
[20]Ceylan [2018] VSC 361 [45].
Before July 2018, the applicant, who was then 33 years of age, had no prior criminal history involving violence of any kind. The applicant’s history as set out in the CROP report arguably discloses material which may go some way to explaining the applicant’s change of behaviour and circumstances since 2017. Moreover, as the CROP report makes clear (and notwithstanding Ms Spowart’s submission as to the report being ‘flimsy’ or ‘wishwashy’), it would be desirable (both in the interests of the applicant and the community more generally) if those matters which have affected the applicant in more recent times in relation to substance abuse were to be addressed sooner rather than later.
Another matter to be weighed in the synthesis of relevant facts and circumstances on this application is the fact that the applicant does not have a negative bail history. Additionally, as I have already observed, his criminal history is modest. Moreover, notwithstanding the history to which I have already referred, he has no prior convictions for breaching court orders – although he admits to breaching the family violence order in March 2019, before it was varied to permit him to have contact with the complainant and the children after a reconciliation that occurred shortly before that time.
At the time of the bail application before Tinney J, the applicant had only been in custody for some three months. There was then the prospect that the charges would be determined by January 2020. The applicant has now been in custody for some six months. The determination of his charges before November 2020 now appears to be unlikely. To the extent that the respondent submitted that less weight should be given to these matters because they have been brought about by the applicant electing not to have his charges dealt with summarily, I reject that submission. The applicant is entitled to exercise his lawful rights in relation to the way in which the charges against him are to be heard and determined.
As to the likely sentence to be imposed should the applicant be found guilty of the charges he is currently facing, as Tinney J observed, this is ‘difficult to assess’.[21] As was said by counsel for the respondent in the hearing before his Honour, much depends upon what any ‘resolution’ of the charges ‘looks like’. For present purposes, and notwithstanding Ms Spowart’s submission to the contrary, I am prepared to accept that a term of imprisonment with a CCO is, as was accepted by counsel for the respondent before Tinney J, depending upon how the matter is resolved, ‘potentially on the cards’.[22] That is not to say that, after a trial where all of the allegations are fully ventilated, a sentence of imprisonment of more than the maximum period that may be combined with a CCO[23] may not be appropriate.
[21]First Reasons [61].
[22]Appeal Reasons [57], wherein it is noted that the respondent’s counsel before Tinney J accepted that a term of imprisonment together with a CCO was ‘certainly potentially on the cards’ depending on how the matter was resolved.
[23]See s 44 of the Sentencing Act 1991.
There are matters in the surrounding circumstances[24] that do not tell in the applicant’s favour. These matters have been referred to before and include the seriousness of the allegations of strangulation and the fact that the complainant is afraid of the applicant and does not want him released on bail. Having synthesised all of the relevant circumstances — including those enumerated in s 3AAA of the Act — I have come to the conclusion, however, that the applicant has now established a compelling reason justifying the grant of bail. The lack of a negative bail history, the modesty of the applicant’s criminal history, his personal circumstances, his financial circumstances to which extensive reference has already been made in the earlier reasons for judgment, the time he has already spent in custody, the period of any likely sentence and the material and recommendations in the CROP report, taken together, in my view establish a compelling reason justifying why the applicant should now be granted bail.
[24]As to which, see s 3AAA of the Act.
It is now necessary for me to consider whether there is an unacceptable 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 witnesses or otherwise obstruct the course of justice, or fail to surrender himself into custody in accordance with the conditions of bail.
The respondent’s submissions on the issue of unacceptable risk are not without substance. The release of the applicant on bail carries some risk that he will endanger the safety of the complainant or her children or commit an offence while on bail. In cases of this kind, that risk can never be entirely eliminated. However, the applicant now having had his first taste of custody and having spent six months on remand, I am prepared to conclude that such risk that exists has been diminished by that experience and the sure knowledge that any breach of bail by him will almost certainly see him returned to custody.
In my view, strict bail conditions requiring, among other things, daily reporting to police, a curfew and a prohibition from approaching or being in the vicinity of the complainant’s residence will mitigate, to the extent necessary, the risks referred to in ss 4E(1)(a) and 5AAAA(2)(a) of the Act. I propose to order daily reporting to police, not so much because I think the applicant is a flight risk, but to bring home further to him the seriousness of his position and the need for him to ensure that he complies strictly with his obligations – and in particular his obligation to stay away from the complainant.
I also propose to order a surety in the sum of $25,000 so as to better secure the applicant’s compliance with the terms and conditions upon which I propose to admit him to bail.
Conclusion and order
The applicant will be admitted to bail on a surety in the amount of $25,000 on the following conditions:
(1)The applicant attend the Magistrates’ Court of Victoria at Ballarat, for a committal mention, on 19 December 2019 at 9:00 am and then surrender himself.
(2)The applicant not depart without the leave of the Court and, as often as leave is given, return at the time appointed by the Court on granting leave and again surrender himself.
(3)The applicant reside at [a particular specified address]. The applicant is to notify the informant within 24 hours of any proposed change of address.
(4)The applicant report daily to the officer in charge of the police station at Ocean Grove or his or her nominee between the hours of 6:00 am and 9:00 pm.
(5)The applicant be within his place of residence between the hours of 11:00 pm and 6:00 am.
(6)The applicant present at the front door of his place of residence upon request by police during curfew hours.
(7)The applicant attend the Court Integrated Services Program (CISP) immediately after release and thereafter follow all lawful directions made, including any treatment, counselling or supervision as recommended by CISP.
(8)The applicant not leave the State of Victoria.
(9)The applicant surrender any passports which he may hold to the informant, and not apply for another passport or any other travel document or documents.
(10)The applicant not attend or approach any point of international departure during the period of bail.
(11)The applicant not contact directly or indirectly any witness for the prosecution except the informant or his nominee.
(12)The applicant is prohibited from being within a ten kilometre radius of the complainant’s premises for any purpose whatsoever.
(13)Save for attending any court hearing to which he is a party, the applicant is prohibited from being within a 20 kilometre radius of the Ballarat GPO.
(14)Upon his release, the applicant is to provide the informant with his mobile phone number.
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