Re SC
[2021] VSC 770
•17 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0311
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by SC |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2021 |
DATE OF JUDGMENT: | 17 November 2021 |
DATE OF REVISED REASONS: | 22 November 2021 |
CASE MAY BE CITED AS: | Re SC |
MEDIUM NEUTRAL CITATION: | [2021] VSC 770 |
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CRIMINAL LAW — Bail — Application for bail — Charges of incest, rape, sexual penetration of a child under 16, indecent act with a child under 16, indecent assault — Offences charged predate Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) — Whether applicant must establish ‘compelling reason’ or prima facie entitled to bail — Offences charged not listed in Schedule 2 of the Bail Act 1977 (Vic) — Prima facie entitlement to bail — Delay between allegations occurring and bringing of prosecution — No history of breaching court orders — Applicant an Indigenous person in custody for the first time — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4AA, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr. Tim Marsh | Victoria Aboriginal Legal Service |
| For the Respondent | Ms. Francesca Holmes | Office of Public Prosecutions |
HIS HONOUR:
SC (‘the applicant’) is a [redacted] year old Indigenous man who is in custody for the first time. He has been on remand since 8 October 2021, when he was arrested by Senior Constable Kristopher Blackmore and charged with the following offences:
(a) nine charges of sexual penetration of a child under 16, alleged to have occurred between 2004 and 2013;[1]
[1]Contrary to s 45 of the Crimes Act 1958 (Vic) (as it was at the time of the alleged offending).
(b) five charges of rape, alleged to have occurred in 2010;[2]
[2]Contrary to s 38(2) of the Crimes Act 1958 (Vic) (as it was at the time of the alleged offending).
(c) eight charges of indecent act with a child under 16, alleged to have occurred between 2000 and 2012;[3]
[3]Contrary to s 47 of the Crimes Act 1958 (Vic) (as it was at the time of the alleged offending).
(d) incest, alleged to have occurred between 2012 and 2013;[4]
(e) attempted incest, alleged to have occurred between 2012 and 2013;[5] and
(f) indecent assault, alleged to have occurred in 2006.[6]
[4]Contrary to s 44 of the Crimes Act 1958 (Vic) (as it was at the time of the alleged offending).
[5]Contrary to s 321M of the Crimes Act 1958 (Vic).
[6]Contrary to s 39 of the Crimes Act 1958 (Vic) (as it was at the time of the alleged offending).
The applicant applied for, and was refused, bail in the Mildura Magistrates’ Court on 20 October 2021. This was on the basis that, if granted bail, he was considered to be an unacceptable risk of committing an offence, endangering the safety or welfare of any person, or interfering with a witness or otherwise obstructing the course of justice.
On 7 November 2021, the applicant filed an application for bail in this Court. The matter is next listed in the Mildura Magistrates’ Court for a committal mention on 2 February 2022.
The alleged offending
Background
The allegations against the applicant relate to events alleged to have occurred between 2000 and 2013, involving the following six complainants:
(a) KS, the applicant’s cousin, who was eight or nine at the time the alleged offending commenced;
(b) EP, the applicant’s former partner, who was 13 at the time the alleged offending commenced;
(c) KG, EP’s half-sister, who was seven or eight at the time the alleged offending commenced;
(d) KN, the applicant’s cousin, who was 20 at the time the alleged offending commenced;
(e) JS, the applicant’s daughter, who was five or six at the time the alleged offending commenced; and
(f) CN, the applicant’s half-sister, who was 13 at the time the alleged offending commenced.
The allegations against the applicant can be summarised as follows.
Sometime between January and December 2000, the applicant was present at a house in Swan Hill where KS was sleeping in one of the bedrooms. He entered the bedroom, got into her bed and groped her breasts over her clothing for several minutes. The applicant was [redacted] at the time and KS was eight or nine.
Sometime between January and December 2001, the applicant was at a house in Echuca where KS was present and entered her bedroom where she was seated at her desk. He stood behind her and placed one hand down her shirt on her breast, and the other over her shirt on her other breast. He then rubbed both breasts. The applicant was [redacted] at the time and KS was nine or 10.
Between 1 and 8 September 2002, the applicant was in the back of a car with KS being driven by family members to McDonalds. During the trip, he repeatedly placed his hand on KS’s thigh, which she moved away. He eventually inched higher up her leg until he was touching her vagina over her clothes. The applicant was [redacted] at the time and KS was 11.
Between July and August 2004, the applicant and EP commenced a relationship. Two or three weeks later, the applicant had vaginal sex with EP. The applicant was [redacted] at the time and EP was 13.
Sometime in 2005, the applicant was seated on a couch with KG at a house in Swan Hill. The applicant told KG that his penis was itchy and placed her hand on it, which KG removed. The applicant was [redacted] at the time and KG was seven or eight.
In September 2005, the applicant had vaginal sex with EP and she became pregnant with JS. The applicant was [redacted] at the time and EP was 14.
Between September and October 2006, KN was asleep in a bedroom at her grandmother’s house in Swan Hill. KN awoke to the applicant kneeling beside her bed rubbing her vagina over her pants. She said “don’t”, but he continued and attempted to undo the button on her pants. KN started crying and the applicant left the room.
On 20 January 2010, the applicant and EP were at a house in Swan Hill. EP had earlier indicated that she would have sex with the applicant, but at the time was feeling nauseous and declined. The applicant became angry, forced himself on top of EP and vaginally raped her, despite her crying and protesting.
On 22 May 2010, the applicant and EP returned home from a party. EP was 35 weeks pregnant at the time. The applicant was drunk and verbally abusive. He grabbed EP by the hair and forced her head into the bed, repeatedly telling her to “shut up” as he vaginally raped her. After raping her, the applicant kicked EP to the back, causing her to hit the wall approximately 60 centimetres from the bed. Two days later, EP was hospitalised with early contractions and gave birth to her baby.
On 31 December 2010, the applicant and EP were in a spa at EP’s parents’ house in Ultima. The applicant demanded that EP perform oral sex on him, which she refused. He forced EP’s head underwater and pushed it into his crotch area for 10 to 15 seconds, before releasing it and telling her to meet him in the bathroom. Once in the bathroom, the applicant directed EP into the shower and forced her to perform oral sex on him. Afterwards, the applicant pushed EP against a wall and vaginally raped her for three or four minutes, before stopping and stating, “I’m going to stick it in your arse.” The applicant pushed EP onto her hands and knees and anally raped her, despite her cries and protests. After hearing EP’s parents arrive home, the applicant directed EP to the bedroom, where he pushed her onto the bed and vaginally raped her for 10 to 15 minutes whilst calling her a “whore”.
Sometime between 2011 and 2012, the applicant got into JS’ bed at their home in Swan Hill and laid beside her. He then lifted JS up and placed her on his crotch, rocking her back and forth. The applicant was between [redacted] at the time and JS was between five and seven.
In September or October 2012, CN commenced living with the applicant and EP at their home in Swan Hill. One evening after she moved in, CN was sitting on the couch with the applicant watching television. He picked up her foot and used it to rub his penis over his clothing. When CN questioned what he was doing, the applicant told her to be quiet because she would wake her nephews and nieces. The applicant was [redacted] at the time and CN was 13.
One evening between October and November 2012, CN was asleep in a room at one of the applicant’s friend’s houses when she awoke to the applicant in bed beside her and touching her. He pushed her head into the bed and ripped her pants off, before vaginally penetrating her with his penis. The applicant was [redacted] at the time and CN was 13.
One day between October and November 2012, the applicant approached CN in the lounge room of his home and put one of his hands down her pants, touching her vagina, and put the other over her shirt in an attempt to touch her breasts. When CN pushed the applicant away, he told her she should be grateful to be allowed to live at his house and that “no-one believed [KG] and no-one would believe [her]”. The applicant was [redacted] at the time and CN was 13.
One evening between October and November 2012, CN was asleep in bed when she awoke to the applicant attempting to put his hand down her pants. He touched her vagina and anus, before moving his finger back to her vagina, thrusting it in and out. He told her to “shut up” during the incident, due to JS being asleep in the same room, and quickly left when JS became restless. The applicant was [redacted] at the time and CN was 13.
One evening between October and November 2012, the applicant approached CN in the lounge room of his home and pushed her up against a wall, pulled her pants down, and vaginally penetrated her, despite her pleading with him to stop. The applicant then heard EP get out of bed, and quickly pushed CN back on the couch. The applicant was [redacted] at the time and CN was 13.
One evening between October and November 2012, CN was alone at a house in Swan Hill. The applicant attended and demanded sex from CN, to which she responded by begging him not to have sex with her and stating that she had her period. Despite this, the applicant forced himself on top of CN and anally penetrated her. After realising that she did not have her period, he then vaginally penetrated her. He vaginally and anally penetrated her several more times over the hours that ensued. The applicant was [redacted] at the time and CN was 13.
One evening between November 2012 and June 2013, JS was asleep at a house in Nyah West when she awoke following a nightmare. The applicant attended to comfort her and, after a little while, pulled her pants down and licked and inserted his tongue into her vagina, asking, “Does that feel nice?”. The applicant was [redacted] at the time and JS was six or seven.
One day between November 2012 and June 2013, JS injured her finger. The applicant laid on his back and positioned JS over his crotch, telling her, “this will help”, as he rocked her back and forth in a sexual manner. The applicant was [redacted] at the time and JS was six or seven.
One day between November 2012 and June 2013, the applicant took JS into the laundry at a house in Nyah West and removed his penis from his pants. He asked JS to put it in her mouth, which she refused, causing him to become angry. Later, whilst sitting on a couch in the lounge room, the applicant again removed his penis from his pants and asked JS to put it in her mouth. The applicant was [redacted] at the time and JS was six or seven.
On 8 January 2013, CN was discharged from Swan Hill Hospital after having attempted to take her own life. The applicant picked her up and, on the way home, asked her about what she had disclosed to hospital staff. He then stopped his car between Swan Hill and Nyah West. CN attempted to flee but the applicant stopped her, grabbed her by the arm and forced her into the back of his car, where he vaginally penetrated her. The applicant was [redacted] at the time and CN was 13.
Lastly, between 1 November 2012 and 5 April 2013, whilst living with the applicant, CN was vaginally penetrated by him on an approximate daily basis. The applicant was [redacted] at the time and CN was 13.
Arrest and remand
On 8 October 2021, the applicant was arrested in relation to these complaints and remanded in custody.
The applicable legislation
Guiding principles
This application is governed by the Bail Act 1977 (Vic) (‘the Act’). In interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B(1).[7] This includes maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty.[8]
[7]Bail Act 1977 (Vic), s 1B(2).
[8]Above n 7, s 1B(1)(a)-(b).
Determination in relation to an Aboriginal person
Because the applicant is an Aboriginal man, the Court in determining the present application must take into account any issues arising from his Aboriginality, including cultural background (including ties to extended family or place) and any other relevant cultural issue or obligation.[9]
[9]Ibid, s 3A.
Threshold test
A person accused of an offence is entitled to be granted bail unless the Court is required by the Act to refuse it.[10]
[10]Ibid, s 4.
The ‘show compelling reason test’ applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence.[11] The following offences are contained within Schedule 2 of the Act:
[11]Ibid, s 4AA(3).
9. An offence against section 38(1) of the Crimes Act 1958 (rape).
14. An offence against section 49B(1) of the Crimes Act 1958 (sexual penetration of a child under the age of 16) in circumstances other than where at the time of the alleged offence the child was 12 years of age or more and the accused was not more than 2 years older than the child.
17.An offence against any of the following provisions of Subdivision (8C) of Division 1 of Part I of the Crimes Act 1958 (incest) in circumstances other than where both people are aged 18 or older—
(a) section 50C(1) (sexual penetration of a child or lineal descendant)…
Relevantly, the applicant is charged with the following offences:
An offence against s 38(2) of the Crimes Act 1958 (‘Crimes Act’) (rape);
An offence against s 45 of the Crimes Act (sexual penetration of a child under 16); and
An offence against s 44 of the Crimes Act (incest).
Because the applicant is charged with the offences of rape, sexual penetration of a child under 16 and incest, it was the parties’ initial position that the compelling reason test applies to this case, and, on that basis, that bail must be refused unless the applicant satisfies the Court that a ‘compelling reason’ exists that justifies the grant of bail.[12]
[12]Above n 7, ss 4AA(3), 4C(1)-(2).
Contrary to the united view of the parties however, this applicant finds himself in the same position as the applicant in Ming-Rui Hua [2019] VSC 637. In that case the applicant was similarly charged was historic sexual offences which allegedly occurred prior to the enactment of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic). In granting that applicant bail, I concluded:[13]
[13][2019] VSC 637 [31]-[36].
31The applicant is appropriately charged with an offence contrary to the law as it was at the time the offence is alleged to have been committed. Whether he has a prima facie entitlement to bail or is required to show a compelling reason is to be determined by an examination of Schedule 2.
32 Schedule 2, at the items relevant to this application, contains the following:
...
9. An offence against section 38(1) of the Crimes Act 1958 (rape).
10. An offence against section 39(1) of the Crimes Act 1958 (rape by compelling sexual penetration).
...
33As I observed to counsel in the course of submissions, this issue concerns the liberty of the subject. In my view, it is encapsulated in the common law presumption that Parliament does not interfere with fundamental rights without a clear expression of an unmistakable and unambiguous intention to that effect. Accordingly, it seems to me appropriate that Schedule 2 be construed strictly.
34 I must reject counsel’s submissions, to the extent they do so, that the offence with which the applicant is charged — namely, s 38(3) of the Crimes Act in force on 5 June 2015 — is, in fact or in effect, an offence against the former s 38(1).
35 This is a case where the offence charged is plainly one against s 38(3). So much is apparent from the charge-sheet. There is no reference in Schedule 2 to either, in general terms, a s 38(3) or, specifically, to what was s 38(3) as at the time that this offence is alleged to have been committed.
36 Accordingly, as the section under which the offence is charged does not appear in Schedule 2, the applicant has a prima facie entitlement to bail and is not required to show a compelling reason why bail should be granted.
The same reasoning applies in this case which after consideration both counsel accepted. Ms Holmes, for the respondent, did not seek to argue the correctness of my original analysis and conceded that the applicant in this case is in fact now prima facie entitled to bail under the Act. Unsurprisingly, Mr Marsh of counsel who appears for the applicant, agrees.
Unacceptable risk
In any case, the Court must refuse bail if satisfied by the respondent that the applicant, if granted bail, would pose an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.[14] The Court must have regard to the surrounding circumstances in determining unacceptable risk, and consider whether there are any conditions of bail that could be imposed to mitigate any risk so that it is not unacceptable.[15]
[14]Above n 7, s 4D(1)(a).
[15]Ibid, s 4E(3).
Family violence risks
Because the applicant is charged with family violence offences, the Court is required to consider whether there would be a risk that, if granted bail, the applicant would commit a family violence offence, and, if such a risk exists, whether it could be mitigated by the imposition of a condition of bail or the making of a Family Violence Intervention Order (‘FVIO’).[16] The applicant is currently subject to four FVIOs naming each of the complainants (with the exception of KN) as protected persons. The particulars of these FVIOs are detailed below.
[16]Ibid, s 5AAAA(2).
The applicant’s personal circumstances
The applicant is a [redacted] year old man. He was born in South Australia and lived there until his parents separated, when he was two, at which time he moved to Swan Hill with his mother. His childhood was marked by instability, including homelessness and exposure to family violence, and from the age of 12 he was often responsible for the care of his younger siblings.
Prior to his remand, the applicant was living in Swan Hill. He was engaged with the Mallee District Aboriginal Services and prior to the pandemic had been involved in church communities in the Bendigo and Cockatoo areas. He had also recently commenced employment at [redacted].
Criminal history
The applicant’s criminal history is confined to one offence of trafficking in a drug of dependence, for which he was convicted in the Mildura Magistrates’ Court on 16 June 2021. He was sentenced to a two-year Community Correction Order (‘CCO’) with conditions that he undertake 150 hours unpaid community work; be supervised by the Secretary; and undertake treatment and rehabilitation as directed, including assessment and treatment in relation to his mental health and drug dependency, and participation in offending behaviour programs.
Family violence intervention orders
The applicant is currently the named respondent to four interim FVIOs made in the Swan Hill Magistrates’ Court on 7 October 2021. Each order contains full non-contact conditions, save for limited exceptions, and names the following persons as protected:
(a) KS;
(b) EP and JS, together with other named persons (OS, MS and HS) who are presumably the applicant’s and EP’s children;
(c) KG; and
(d) CN.
All orders remain in effect until final order, or unless varied, revoked or withdrawn, and are next listed on 1 December 2021. As I earlier mentioned, of the six complainants, KN is the only one is not the protected person in a FVIO.
The applicant’s contentions
The applicant relies on the following matters in relation to the issue of unacceptable risk.
Delay
There has been a significant delay in bringing this prosecution, the alleged offending occurring between 2000 and 2013 and the applicant being charged in 2021. There will also be significant delays in the matter progressing through the Courts given the ongoing backlog as a result of the COVID-19 pandemic.
Criminal history
The applicant has a very limited criminal history and has not previously been sentenced to a term of imprisonment. The current remand period represents his first time in custody.
Compliance with court orders
The applicant was subject to a CCO at the time of his arrest on the present allegations. He had been compliant with that order, having commenced community work, and engaged with treatment and supervision conditions as required.
Stable accommodation
The applicant proposes to reside with his partner at [redacted] if bail is granted.
Employment
In an undated letter, [redacted] of [redacted] states the applicant commended working for [redacted] in early September 2021. The applicant is said to have readily grasped the work, was always punctual, and worked well with supervisors and colleagues. [Redacted] considers the applicant to be an integral part of the team.
Section 3A matters
The applicant is of Wiradjuri heritage and is said to have ties to the Murray / Darling region.
Availability of treatment and support services
It was submitted that the applicant, if granted bail, could continue to take advantage of the treatment options available to him through his CCO, including engaging with Mallee District Aboriginal Services. The applicant would also continue to abide by the conditions of his CCO, including supervision and community work.
In an undated letter filed with the Court on the applicant’s behalf, Mr. Aaron Best, an alcohol and other drugs support worker at Mallee District Aboriginal Services, states that he started working with the applicant in July 2021. Mr. Best describes the applicant as a ‘standout individual’ in terms of his attendance, punctuality, communication and engagement with that service, particularly in the context of a cliental who can at times be difficult to engage. He states that:
From the outset [the applicant] has determined to use his time to work on himself, [the applicant] has not held back or been afraid to tackle the hard questions and do the work. [The applicant] has abstained from all drug use throughout his engagement and worked consistently on his personal development. During this time [the applicant] has also gained employment and started to achieve some goals [and] make real ground building a life for himself.
Mr. Best states that he will continue to support the applicant if granted bail, and is confident that the applicant will comply with any conditions imposed and engage with all required treatments and supports.
Mitigation of risk with appropriate conditions of bail
It was submitted that the applicant has no history of breaching court orders, committing bail offences or interfering with witnesses or otherwise obstructing the course of justice. Further, he has not had contact with any of the complainants in a number of years. It was submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of appropriate conditions of bail, including as to residence, twice-weekly reporting, non-contact with witnesses, compliance with intervention orders, compliance with the CCO, engagement with Mallee District Aboriginal Services, not leaving Victoria and not consuming non-prescribed drugs or alcohol.
The respondent’s contentions
The respondent opposed the application for bail. Ms Holmes, on behalf of the respondent, accepted that the offending alleged against the applicant is historical and, since it ceased in 2013, there have been no further allegations of sexual offending. Ms Holmes accepted the significance of that context when assessing the question of risk.
Notwithstanding this, the respondent relied on the following matters in arguing that the applicant posed an unacceptable risk.
Nature and seriousness of the alleged offending
The allegations against the applicant are described as objectively very serious. They involve penetrative and non-penetrative offending against multiple children aged between six and 13, including the applicant’s own biological daughter. The allegations represent significant breaches of trust against complainants who were, respectively, the applicant’s partner, biological daughter, sister-in-law and cousin. Further, the allegations are said to involve the applicant threatening harm to complainants if they were to report the offending.
Strength of the prosecution case
It was submitted that the case against the applicant is strong, noting:
(a) the complainants’ clear accounts of events in their statements and Video Audio Recordings of Evidence (‘VAREs’);
(b) EP having made consistent allegations during 2014 family law proceedings;
(c) CN having disclosed allegations to a witness, her former partner DA, six years prior to completing her police statement;
(d) the evidence of JS’ birth, JS allegedly having been conceived as a result of offending against EP; and
(e) tendency evidence to be relied upon at trial.
Criminal history
The surrounding circumstances of the applicant’s prior trafficking offence are said to have involved him engaging in debt collection, during which it was submitted that he showed a preparedness to use weapons and significant violence if required.
Bail compliance history
The applicant has been on bail once before, in relation to the trafficking charge for which he is currently serving a CCO. Initially, when he was unable to be located, a warrant was issued for his arrest. He was arrested 18 days later and granted bail. The respondent acknowledged that the applicant complied with his conditions of bail on that occasion, and otherwise has no history of bail offences.
Stable accommodation
It was noted that, if bail is granted, the applicant proposes to live in Swan Hill with a person who he describes as his partner. However, at the time of his arrest, the applicant said that he and this person were housemates and not in an intimate relationship.
In any event, the respondent takes issue with the appropriateness of the applicant returning to live in a small community where all of the complainants remain linked. To the extent that the applicant says he has had no contact with persons involved in the allegations against him for some years, the respondent noted that the applicant was involved in an exchange with CN’s father at a football game on 10 July 2021, leading to an intervention order being made listing the applicant as the protected person and CN’s father as the respondent. This is relied upon to show the difficulties associated with the applicant returning to the Swan Hill community, and the hostilities it is likely to invoke.
Employment
The applicant had only been working at his proposed place of employment for four weeks before his arrest. He apparently has previously worked at a lighting company, but did not stay there longer than two weeks. The respondent submitted that the applicant’s employment history has been inconsistent and transient, and therefore that the availability of employment is unlikely to be a stabilising factor.
Community linkages
The informant has been unable to verify the applicant’s connection to the church communities referred to in the affidavit filed on his behalf, and notes the affidavit is not clear on the extent to which he remained involved in those church communities after the COVID-19 pandemic commenced.
Special vulnerability
The material filed with the Court on the applicant’s behalf refers to him having a mental health condition, but does not particularise the nature of the condition or provide any documentation in support of it. The informant discussed the applicant’s supposed mental health condition with Mr. Best, who was not aware of the applicant having any formal mental health diagnosis.
Complainants’ views on bail
The complainants, who each either still reside or otherwise have strong connections to the Swan Hill area, are concerned for their safety and welfare if the applicant is granted bail. As a result of the prospect of the applicant being granted bail, some have engaged (unspecified) specialist services, undertaken security audits of their homes, and started making arrangements for alternative accommodation.
Delay and likely sentence
The applicant has been on remand since 8 October 2021, with the Hand Up Brief not due for service until December 2021 and the committal mention listed in February 2022. It is conceded that the applicant is likely to face delays in the matter progressing to trial due to the significant backlog of maters in the criminal list of the County Court as a result of the COVID-19 pandemic. It is estimated that the trial of this matter will commence in 2023. However, the respondent submitted that once jury trials resume the matter will receive some priority due to the involvement of a child complainant and the applicant being on remand.
It was submitted that, if convicted, the applicant will be facing a significant sentence that will far exceed any time he would spend on remand for the matter, noting the maximum penalties for each charge range between 10 and 25 years’ imprisonment.
Unacceptable risk
In addressing the matters in s 4E(1)(a) of the Act, the respondent submitted the following.
Endangering the safety and welfare of any person
The respondent expressed concern for the safety and welfare of the complainants if bail were granted, noting that three of them still reside in and have strong ties to the Swan Hill area (where the applicant proposes to reside) and that the others still frequent the area due to having mutual extended family members there. It was submitted that the chance of incidental contact between the applicant and one of the complainants is high. Further, the applicant is said to have previously made threats to kill EP if she were to report the alleged offending, and intimated that he has a ‘list of people he wants to kill’ and ‘would defy police’.
Failing to surrender into custody in accordance with the conditions of bail
The respondent referred to the applicant’s alleged links to other jurisdictions, including extended family or friendships in New South Wales and the Northern Territory, and relies on these – combined with the serious charges he is now facing – to submit that the applicant poses an unacceptable risk of failing to answer bail.
Analysis and conclusion
The only issue I have to determine is whether the respondent has established that the applicant poses an unacceptable risk.
The allegations against the applicant are extremely serious. If they are proven, there is no doubt that the term of imprisonment to which the applicant would be sentenced will significantly exceed any period of time he would spend remanded in custody. Further, the complainants would appear to unanimously oppose the applicant being released on bail. These are matters that militate against the applicant’s release.
However, the fact remains that the most recent of the allegations is from 2013. As Ms Holmes very fairly conceded, the fact that a period of some 8 years has elapsed without any suggestion that the applicant has engaged in further sexual offending provides strong support for the proposition that the risk of releasing him on bail is not unacceptable.
The applicant has also satisfactorily complied with his CCO thus far and has no history of breaching conditions of bail or otherwise offending while on bail. FVIOs are in place listing all but one of the complainants as protected people. As Mr Marsh submitted on the applicant’s behalf, given the applicant has no history of breaching FVIOs it cannot be assumed that the existing FVIOs will be anything other than effective. Additional matters of consequence are that the applicant’s current remand represents his first time in custody, he is an Indigenous man with cultural ties to the Murray / Darling region, and he has support services and employment available to him.
In all the circumstances I am not persuaded that the risk associated with the release of the applicant cannot be reduced to an acceptable level by the imposition of strict conditions.
I will therefore grant the applicant bail and make the following orders:
1.The said SC (‘the applicant’) be admitted to bail upon his own undertaking and with the following conditions:
(a)The applicant reside at [redacted] in the state of Victoria (‘place of residence’);
(b)The applicant must notify the informant Senior Constable Kristopher Blackmore or his nominee, being an authorised member of Victoria Police, at least 14 days in advance of any proposal to change to his place of residence;
(c)The applicant is to report to the Officer in Charge of Swan Hill Police Station, or his or her nominee, every Monday, Wednesday and Friday between the hours of 12:00 a.m. and 11:59 p.m.;
(d)The applicant not contact or attempt to contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant;
(e)The applicant not commit ‘family violence’ within the meaning of that term pursuant to the Family Violence Protection Act 2008 (Vic);
(f)The applicant comply with all current Family Violence Intervention Orders in which he is the respondent;
(g)The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(h)The applicant not consume alcohol;
(i)The applicant provide a sample of his breath or oral fluid for testing upon the reasonable request of the informant or his nominee;
(j)The applicant must comply with Community Corrections Order (‘CCO’) case number M10088899 and comply with all lawful directions of Corrections Victoria staff while engaging in this CCO;
(k)The applicant is to continue to engage with Mallee District Aboriginal Services and comply with all lawful directions of Mallee District Aboriginal Services staff members while so engaging;
(l)The applicant is not to possess or use more than one mobile phone;
(m)The applicant is to provide the informant or his nominee with the phone number, IMEI number and any password or PIN of the mobile phone he possesses or uses within 24 hours of first having access to that phone and notify the informant or his nominee of any change of password or PIN of that mobile phone within 24 hours of that change;
(n)The applicant is to produce the mobile phone he possesses or uses for inspection upon the reasonable request of the informant or his nominee;
(o)The applicant is to provide any password or PIN for the mobile phone he possesses or uses upon the reasonable request of the informant or his nominee;
(p)The applicant not leave the State of Victoria;
(q)The applicant not attend any points of international departure;
(r)The applicant is to appear at the Magistrates’ Court at Mildura on 2 February 2022 or such other date thereafter as directed by that Court.
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