Re Ryan
[2022] VSC 663
•3 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0272
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by RODNEY RYAN |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 November 2022 |
DATE OF RULING: | 3 November 2022 |
CASE MAY BE CITED AS: | Re Ryan |
MEDIUM NEUTRAL CITATION: | [2022] VSC 663 |
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CRIMINAL LAW – Bail application – Applicant charged with Schedule 2 offences – Charges of sexual penetration of a child – Charges of committing further Schedule 2 offences while on bail – Charges arising from telephone contacts by complainant with applicant – Applicant 54 years old – No previous criminal history – Exceptional circumstances established – Unacceptable risk not demonstrated- Bail granted with conditions – Bail Act (Vic) ss 3AAA, s4AA, s4A,s 4D, s4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Stafford | Tony Hargreaves & Partners |
| For the Respondent | Mr D O’Doherty | Mr P Champion, Solicitor for Public Prosecutions |
HIS HONOUR:
On 20 May 2022, the applicant was arrested by Warrnambool police and charged with a number of offences including sexual penetration of a child, common law assault and kidnapping. The offences were alleged to have been committed by the applicant in respect of one complainant, RI, between February 2015 and February 2018. RI, who was born in February 2001, was between the ages of 14 and 17 years at the time of the alleged offending. The applicant was bailed to attend the Warrnambool Magistrates’ Court on 26 May 2022. He was also served with a copy of a Family Violence Intervention Order in which RI was classed as the affected family member. Under the order, the applicant was prohibited from having any contact with RI.
On 26 May 2022, the applicant attended the Warrnambool Magistrates’ Court and was further bailed to 19 August 2022. In the meantime, on 22 June 2022, the applicant was arrested on charges that included contravention of the Family Violence Intervention Order, attempting to pervert the course of justice and contravention of a conduct provision of bail. Those charges are based on a series of telephone calls that took place between RI and the applicant on 7 June 2022.
Following his arrest, the applicant unsuccessfully made an application to the Magistrates’ Court for bail. The charges against the applicant have been listed for a committal mention hearing in the Warrnambool Magistrates’ Court on 25 November next.
In the meantime, on 3 August 2022, the applicant was charged with sexual offending in respect of three further complainants, DK, AG and AS. In 2018, DK and AG had made complaints by way of VARE recordings. Subsequently, in June and July 2022, DK, AG and AS each provided statements in respect of the alleged offending. At the time of the alleged offending, DK was between 13 and 14 years of age, AG was between 15 and 16 years of age and AS was 19 years of age.
The applicant now applies to this court for bail.
The charges
There are currently some 39 charges against the applicant. They include eleven charges of intentionally taking part in an act of sexual penetration of a child under the age of 16 years, seven charges of committing an indecent act with a child under the age of 16 years, seven charges of sexual assault of a child aged between 16 and 17 years and who was under the supervision of an adult, one charge of kidnapping and one charge of assault. Twenty- nine of those charges relate to the complainant, RI. The remaining ten charges relate to the three other complainants, DK, AG and AS.
The charges, in respect of which the applicant was arrested on 22 June 2022, include four charges of contravention of a Family Violence Intervention Order, one charge of intimidating a witness, one charge of attempting to pervert the course of justice, and three charges of contravention of a conduct condition of bail. Those charges are concerned with telephone contacts between RI and the applicant that took place between 2:43 pm and 6:35 pm on 7 June in circumstances which I shall shortly describe.
Circumstances of alleged offending
At the time of the alleged offending involving the complainant RI, and the other three complainants, the applicant conducted a boxing studio and gymnasium that was located at the rear of his residence in Warrnambool. It is alleged that the offences took place in the context of the applicant coaching each of the four complainants in boxing between 2015 and 2018. The complaints concerning RI first came to the attention of the police when RI contacted police, and made a statement, on 19 May 2022.
On the following day, 20 May 2022, RI participated in a pretext telephone conversation with the applicant. In the course of that conversation the applicant made a number of relevant comments, including that he and RI had a romantic relationship, that even if he was put in jail he would not defend himself, and that he was sorry for what had occurred between them. Subsequently, RI provided two further statements on 16 June and 20 July.
As I noted, nine of the charges against the applicant concern telephone contacts which took place between the applicant and RI on 7 June 2022. It is not alleged that the applicant instigated any of those contacts. Rather, each contact between RI and the applicant occurred when RI telephoned the applicant. In fact, on 7 June, RI contacted the applicant by telephone on eleven occasions. Seven of those telephone contacts went to the applicant’s voicemail, and the applicant answered four of them. During the conversations, RI enquired whether the applicant was ‘okay’, and, in response, the applicant explained to RI that he had lost his family, children, friends and livelihood.
RI has maintained that in the course of those conversations, the applicant repeatedly said to her ‘if only I could just see you and we could talk’ and he suggested that they meet somewhere near Ararat. RI also alleges that the applicant urged her to drop the charges and ‘make it all go away’ so that he could have his life back.
When the applicant was arrested on 22 June 2022, he participated in a lengthy interview with the police. In the course of that interview, he told police that he had been contacted on a number of occasions by RI and that he had picked up the call and spoken to her five times. The applicant told the police that he understood that the Family Violence Intervention Order had prohibited him from contacting RI, but he did not appreciate that if she telephoned him, he should not answer the call. The applicant specifically denied speaking to RI about the offending, asking to meet her in Ararat or asking her to ‘drop the charges’. The applicant further told police that having subsequently received legal advice, he understood that remaining on the telephone he had breached the Family Violence Intervention Order, and that he should have hung up immediately RI telephoned him.
The proceedings
The committal mention hearing in respect of the indictable charges was originally listed on 19 August. At a special mention on 15 July, the prosecution successfully applied for an adjournment and an extension of time, and the committal mention was re-listed for 16 September. In the meantime the hand-up brief was served on the applicant in prison on 5 August, but the applicant did not receive it. A second brief was then sent to the applicant in late August, but was only received by him one week before the adjourned committal mention. As a consequence, the committal mention was adjourned to 25 November 2022.
It is now expected that the committal proceeding will not be held before March 2023. As a result of the backlog of cases currently in the County Court, it is anticipated that the trial of the charges is unlikely to occur before 2024.
The applicant’s personal circumstances
The applicant was born in 1968 in Warrnambool, and he is currently 54 years of age. He has no previous convictions. During his working life he has been employed in a number of different capacities. For the last fifteen years, the applicant has been the sole owner and operator of his own business, as a personal trainer and boxing coach.
In 1992, the applicant met his first partner, by whom they had a son named Connor. That relationship ended in 1996. The applicant subsequently married his wife Hannah, and they have two daughters, aged fifteen and seventeen years respectively. The family lives in Warrnambool, but the applicant is separated from his wife.
The applicant’s son Connor resides in Coomoora, which is a suburb outside Daylesford, with his wife and 3-year-old son. The applicant has a close and supportive relationship with him. Connor has indicated that he and his wife are willing to have the applicant reside with them, and also they have located alternative accommodation for the applicant nearby if he were granted bail. The applicant’s grandson has a congenital liver disease which requires ongoing monitoring and medication. Before the applicant was remanded in custody, it was intended that he would reside with his son and assist in providing daily care for the grandson.
In addition, during the last four years, the applicant has acted as a mentor for a Kenyan refugee, Brian Agina. The applicant has provided him a home and has supported him in his applications for residency and for employment as an apprentice mechanic.
If the applicant were granted bail, it is proposed that he reside at the home identified by his son Connor. It is also proposed that Connor provide a surety of $5,000.
In an affidavit in support of the application, Connor Ryan has deposed that he has organised accommodation for the applicant at an address in Daylesford, which is approximately ten minutes from Connor’s home. If the applicant were granted bail, it is expected that the applicant would be able to attend Connor’s home and assist in looking after their 3-year-old son. Connor has organised a loan of $5,000 to enable him to act as surety in support of the applicant if he were granted bail.
In addition, Ms Jenny Hopkins, who is the owner of the premises in Daylesford, has sworn an affidavit in which she states that she is willing to permit the applicant to lease one of the three units that are on the property. Mr Graeme Stevens has also provided an affidavit. Mr Stevens, who has known the applicant for more than ten years, would be prepared to permit the applicant to reside at a property that he owns in Greensborough, which Mr Stevens uses when he stays in Melbourne.
The bail provisions
The charges against the applicant include Schedule 2 offences (those alleged to have been committed on 7 June 2022) while the applicant was on bail for other Schedule 2 offences (sexual penetration of a child and kidnapping). Accordingly, s 4AA(2)(c) and s 4A(1A) of the Bail Act 1977 (‘the Act’) provide that the application for bail must be refused, unless I am satisfied that exceptional circumstances exist to justify the grant of bail to the applicant. Section 4A(2) provides that the applicant bears the burden of satisfying the Court as to the existence of those exceptional circumstances.
In determining whether exceptional circumstances exist, I am required to take into account all the relevant circumstances, including, but not limited to, those prescribed by s 3AAA(1) of the Act.
The meaning of the phrase ‘exceptional circumstances’ has been considered in a number of previous decisions of this Court. In substance, in order to fulfil that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which, individually, might not be considered to be exceptional.[1]
[1]DPP v Muhaidat [2004] VSC 17 [13] (Kaye J); Re Brown [2019] VSC 751 [65]–[66] (Lasry J); Re Tong [2020] VSC 141 [18] (Tinney J).
One matter, that is commonly regarded as important, in determining whether exceptional circumstances have been established, is the presence or absence of factors which may point to the applicant being an unacceptable risk in any of the ways specified by s 4E(1) of the Act.[2]
[2]Re Gloury-Hyde [2018] VSC 393 [30] (Priest JA).
If the court is satisfied that exceptional circumstances have been established, s 4D and s 4E of the Act require that the application for bail must be refused, if the court is satisfied that there is an unacceptable risk that the applicant, if released: would endanger the safety or welfare of any person; would commit an offence while on bail; would interfere with a witness or otherwise obstruct the course of justice; or would fail to surrender into custody in accordance with the conditions of bail. The prosecution bears the burden of satisfying the court as to the existence of any such unacceptable risk.[3] Section 4E(3) of the Act provides that in considering whether any such risk is an unacceptable risk, the court must take into account the ‘surrounding circumstances’ specified in s 3AAA of the Act.
[3]Bail Act 1977 s 4D(2).
Section 5AAAA of the Act provides that a bail decision-maker, in considering the release on bail of an accused person, must inquire of the prosecutor whether there is in force (inter alia) a Family Violence Intervention Order made against the applicant. Subsection 2 of that section provides that the bail decision-maker must consider whether, if the applicant were released on bail, there would be a risk that the applicant would commit family violence, and whether that risk could be mitigated by the imposition of a condition or the making of a Family Violence Intervention Order.
Submissions
Counsel for the applicant provided comprehensive and helpful written submissions in support of the application. Counsel submitted that the requisite exceptional circumstances have been established. In particular, each of the attempted contacts and actual contacts, between RI and the applicant on 7 June, were initiated by RI. The contravention of the Family Violence Intervention Order was limited to telephone contact on that single day. There had been no contact between RI and the applicant before 7 June, and there has been no contact between them since.
In addition, counsel submitted, there are triable issues in respect of the charges relating to the four complainants. In respect of each complainant, there is no forensic or corroborative evidence, and the applicant has participated in a lengthy interview with the police in which he denied the alleged offending in respect of each of them. Counsel also relied on the fact that the applicant has a stable residence available to him at an address which is a three hour drive distant from Warrnambool, where it is alleged the offending occurred. The applicant has no criminal history, he has family support and a good work record, and he has employment available to him in Daylesford. In addition, counsel relied on the fact of delay in the proceeding. She noted that the proceeding had already been attended by delay arising from the late provision by the prosecution of the hand-up brief. As a result, the matter still remains at the committal mention stage. The delay in finalisation of the matter is likely to be lengthy due to the impact of the COVID-19 pandemic on the list of cases awaiting trial, and also due to the nature and complexity of the proceeding which may involve a number of pre-trial issues.
Finally, counsel submitted that the applicant’s time on remand has been rendered more onerous by restrictions imposed by authorities in response to the COVID-19 pandemic, as a consequence of which there have been suspensions of personal visits, limited access to education and rehabilitative programs, restrictions on liberty of movement, and restrictions on the applicant’s ability to communicate with his legal advisers. The applicant has not been able to have any telephone contact with his two teenage daughters, and he has experienced significant difficulty in accessing the hand-up brief. In addition, the applicant does not have access to a private space and uninterrupted time to review the evidence and prepare his defence, and he does not have access to electronic devices which contain material and information that would assist him in that regard.
Finally, the applicant relies on the availability of his son Connor to act as a surety, and also on the circumstance that his continued imprisonment detrimentally affects his ability to assist Mr Agina in his current legal proceedings which will determine his right to remain in Australia.
Counsel submitted that the respondent has failed to establish that, if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence while on bail, interfere with a witness, or otherwise obstruct the course of justice. Counsel noted that the risks relied on by the respondent are based solely on the circumstances of the alleged offending of 7 June 2022. She also noted that the most significant step, which could be taken to avert any further communication between the applicant and RI, lies in the hands of the prosecution who should advise RI that she should not endeavour to make any contact with the applicant.
Counsel further noted that, if the applicant is released on bail, he would reside at premises which are close to his son, which are a three hour drive from where the complainant resided. Counsel noted that each contact between the complainant and RI and the applicant, following the date of the original charge, was constituted by the complainant contacting the applicant by telephone. There is no allegation that the applicant attempted to contact RI. In addition, counsel pointed out that RI now resides at an address which is unknown to the applicant.
In its initial response to the application, the respondent contended that the applicant has not established the requisite exceptional circumstances that would justify the grant of bail. The respondent further contended that, if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence on bail, and that he would interfere with a witness or otherwise obstruct the course of justice. However, on giving the matter further consideration, the respondent took the position that it no longer opposed the grant of bail to the applicant on appropriate conditions.
Analysis and conclusion
In my view, the prosecution is quite correct not to oppose the grant of bail in this matter.
For the reasons outlined by counsel for the applicant, I am satisfied that the applicant has established the existence of the requisite exceptional circumstances justifying the grant of bail on the conditions sought by the respondent. It is necessary and appropriate that I briefly state the reasons why I am persuaded that there are exceptional circumstances justifying the grant of bail, and why I am also satisfied that the respondent has not demonstrated that there is an unacceptable risk that, if the applicant were granted bail, he would commit an offence, interfere with a witness, or obstruct the course of justice.
The alleged offending against the complainants, which is the subject of most of the charges against the applicant, is serious. It involved a breach of trust by the applicant, and an abuse of his position of authority in his role as the boxing coach of the four complainants. The evidence, in respect of each of those charges, has not been tested at committal. However, at this preliminary stage, the prosecution case is reasonably strong. To a material degree it is supported, in respect of the charges relating to RI, by the contents of the pretext call made by RI to the applicant on 20 May 2022.
On the other hand, the applicant has no previous criminal history. He has a record of regular employment. In addition, he has a stable residence available to him in Daylesford which is well removed from where the alleged offending occurred in Warrnambool. The applicant has significant family support particularly from his son. If the applicant were granted bail, he would be able to provide Connor’s young family with assistance in caring for their 3-year-old child who has a congenital liver disease, and he would also be able to provide important support to Mr Agina in his application for permanent residence in Australia.
In addition, it is anticipated that there may be a substantial delay until the trial of the charges against the applicant. The COVID-19 pandemic has had a significant effect on the list of cases awaiting trial in the County Court. It might fairly be anticipated that there may be a number of pre-trial issues which will need to be determined before the matter proceeds to trial. In the meantime, the conditions affecting the applicant in custody are quite onerous. He has been held in protective custody since his remand. Personal visits have been suspended, he has had limited access to programs, and, most significantly, he has had restricted access to his legal advisers. It is of particular concern that the applicant has had difficulty in accessing the hand-up brief, in having appropriate facilities provided to him to enable him to prepare his defence, and in having access to electronic devices which would enable him to engage in the important task of preparing his defence to the charges against him.
Each of those factors, taken in combination, are sufficient to constitute the requisite exceptional circumstances justifying the grant of bail in this case. However, there is an additional factor which, in my view, is of particular significance in that regard. The primary offending, in respect of which the applicant had originally been released on bail, constituted offences listed under Schedule 2 of the Bail Act. As such, at that point, the applicant was only required to demonstrate compelling (and not exceptional) reasons justifying his release on bail. The factors, to which I have already adverted, would be plainly sufficient to constitute such compelling reasons, and it is not surprising that, until his arrest on 22 June, the applicant had been properly released on bail. In that context, the particular facts, which constitute the offences listed under Schedule 2, that the applicant is alleged to have committed while he was on bail — that is, the telephone contacts between RI and the applicant — are, to say the least, most unusual. As I have noted, each of the contacts, relied on by the respondent for the breach of bail, were instigated by RI herself, and not by the applicant. The persistence with which RI sought to communicate with the applicant on 7 June is demonstrated by the fact that she made multiple — eleven — attempts to contact him by telephone. Understandably, he applicant did not, at that point, appreciate that the terms of the Family Violence Intervention Order precluded him from responding to those contacts made with him by the complainant. It was those contacts, initiated and made by RI to the applicant, which converted the applicant’s position to one which required him to establish the existence of exceptional circumstances justifying his release on bail. Plainly, that consideration alone, of itself, is sufficient to constitute the requisite exceptional circumstances.
For those reasons, I am well satisfied that exceptional circumstances have been established justifying the applicant’s release on bail. Further, I would not be persuaded that, if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice. For the reasons I have just outlined, the circumstances of the communications that took place between RI and the applicant on 7 June, do not, to any material degree, support the existence of any such unacceptable risk. Further, it is clear that the applicant had properly abided by the terms of the Family Violence Intervention Order before 7 June, and that he continued to adhere to the terms of that order until his arrest on 22 June. I am satisfied that the conditions agreed between the parties would be sufficient in order to avert any such risk in the future.
Accordingly, I shall grant bail to the applicant and make the following orders:
1. The applicant be admitted to bail on his own undertaking with a surety in the amount of $5,000 by Connor Ryan and with the following conditions:
(a) the applicant reside at the nominated address in Daylesford;
(b) the applicant is to report to the officer in charge of Kyneton Police Station or their nominee every Monday, Wednesday and Friday between the hours of 7:00 am and 8:00 pm;
(c) the applicant is to comply with the Family Violence Intervention Order dated 20 May 2022 in respect of which the protected person is RI;
(d) the applicant is not to contact any witnesses for the prosecution other than the informant;
(e) the applicant is not to contact Chelsie Rose;
(f) the applicant is not to engage in any employment or training with female children under the age of 18 years.
2. The applicant is to appear at the Warrnambool Court on 25 November 2022.
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