Re TD
[2019] VSC 669
•2 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0195
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| - and - | |
| IN THE MATTER of an application for bail by TD | |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 October 2019 |
DATE OF JUDGMENT: | 2 October 2019 |
CASE MAY BE CITED AS: | Re TD |
MEDIUM NEUTRAL CITATION: | [2019] VSC 669 |
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CRIMINAL LAW — Bail — Sexual offences against biological children and step-child — Whether compelling reason shown — Meaning of compelling circumstances considered —Alleged offending serious and violent — Crown case not weak — Compelling reason not shown — Bail refused — Bail Act 1977 ss 1B, 3AAAA, 4, 4AA, 4C, 4D, 4E, and 5AAAA — Christopher Rodgers v The Queen [2019] VSCA 214.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Casement | Stary Norton Halphen |
| For the Respondent | Mr J D Singh | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by TD (the ‘applicant’). He faces five charges of rape and three charges of committing an indecent act with a child under the age of 16. The charges relate to two sets of allegations made by three complainants over a span of some 13 years.
The first set of charges relate to events alleged to have occurred between 1 May 2001 and 7 March 2003, involving the applicant's step-daughter, PS.
The second set relates to events alleged to have occurred between 13 November 2010 and 13 November 2014 involving the applicant's two biological daughters, TJ and TB.
It is common ground between the parties that, under the Bail Act 1977 (Vic) (the ‘Act’), bail must be refused unless the applicant can satisfy the Court that a compelling reason exists that justifies the grant of bail.[1] That is because he is charged with rape, which is a Schedule 2 offence under the Act.
[1]See Bail Act 1977 (Vic) ss 4AA(3), 4C(1A) and sch 2, item 9 (‘Bail Act’).
Procedural history
The applicant was arrested and charged with the current offences on 8 August 2019. He has been in custody since his arrest. He has been twice refused bail in relation to the present charges: first on 8 August 2019 at the Seymour Magistrates' Court and then on 19 August 2019 in the Shepparton Magistrates' Court. On each occasion bail was refused on the basis that the applicant had failed to demonstrate a compelling reason and was an unacceptable risk within the meaning of s 4E of the Act.
This matter is next listed for committal mention on 22 October 2019 at the Shepparton Magistrates' Court.
On 8 August 2019, the day of the applicant's arrest, two final family violence orders (‘FVIO’) were made against the applicant at the Seymour Magistrates' Court. The first of those names PS as the affected family member and the second of them names the applicant's former wife, TE, and TJ and TB as affected family members. Both orders operate until 8 August 2023.
On 19 September 2019, four interim FVIOs were made against the applicant at the Seymour Magistrates' Court. Those orders name TE’s parents, SA and SB, and two of the applicant's former domestic partners, MA and DL, as affected family members. Those matters are listed next for a hearing on 22 October 2019.
The alleged offending
The applicant had been in a relationship with TE between December 1996 and November 2007. TE is the mother of all three complainants in this matter. Following their separation, the applicant and TE shared custody of two biological daughters, TJ and TB.
The case to be brought against the applicant by the prosecution in relation to the offences he is charged with is, in summary, as follows.
Charges 2 to 5 – the first complainant
On a date between 1 May 2001 and 31 December 2001, the applicant was present in the family home at Epping with PS. She was then 12 years of age.
It is the prosecution case that the applicant punched the first complainant to the face and body after she was too scared to light a gas stove. The blows caused her to fall to the floor.
It is alleged that the applicant then dragged her to her bedroom and threw her onto the bed before punching her to the face again. The applicant is alleged to have then pulled down the complainant's pants and underwear and removed his own pants. He then held PS down with both of her arms next to her head and forced his penis into her vagina.
PS screamed and attempted to bite the applicant. In response, the applicant is alleged to have held her arms above her head and covered her face with a pillow.
It is the prosecution case that the applicant ejaculated inside the PS's vagina and called her a ‘dirty slut’ before dragging and throwing her into a shower with cold water running, stating, ‘Clean yourself’.
Afterwards, PS called her mother and asked her to come home; telling her that the applicant had hit her. It is PS's evidence that she did not tell her mother she had been raped as she did not think her mother would believe her.
On another occasion between 1 June 2001 and 21 February 2002, whilst at their Epping home, PS alleges that the applicant grabbed her by her hair and dragged her from an exercise bike that she was riding in the garage. The applicant then punched PS to the face, causing her to fall to the floor.
It is alleged the applicant then held her arms down and removed her track pants, leaving her underwear on. PS screamed and tried to bite the applicant. The applicant then penetrated her vagina with his penis and eventually ejaculated inside her vagina. The applicant then called PS a ‘dirty lying slut’ and left the garage.
Between 1 March 2002 and 31 December 2002, following an argument between the applicant and PS's mother at their new home in Broadford, the applicant allegedly entered PS's bedroom. The first complainant was sitting on her bed and screamed 'Fuck off' as the applicant walked towards her. It is alleged that the applicant pushed a pillow over her head and pulled her down onto the bed before pulling her shorts off and moving her underwear aside. PS screamed and punched the applicant; however, he held her hands above her head with one hand and again covered her face with a pillow.
The applicant allegedly penetrated her vagina with his penis while she tried to kick him. It is alleged the applicant ejaculated into PS's vagina and then quickly left the room, where her mother was heard walking on the veranda towards the front door.
On 7 March 2003, the applicant is alleged to have again entered PS's bedroom while her mother was outside their Broadford home. She was 13 years old at this time and was lying on her bed with only underwear on. The applicant is alleged to have pulled the doona back and held her hands above her head. It is alleged that the applicant then moved her underwear aside and penetrated her vagina with his penis until he ejaculated inside her vagina. PS did not struggle during this incident and showered once the applicant left.
Charges 1, 6 to 8 – the second and third complainants
On date between 13 November 2010 and 13 November 2014, the applicant was present in Wandong with his two daughters, TJ and TB. TJ was between seven and 10 years old, and TB was between six and 10 years old at this time. The applicant is alleged to have said to both complainants, ‘Let’s have a shower together to save water’.
It is alleged that the applicant then removed their clothing and his own, and then took them into the shower. During the shower, the applicant is alleged to have rubbed the TB's vagina with his fingers and also with a scrubber. The applicant then proceeded to wash his penis and testicles in front of the complainants, telling them, ‘This is what the boys clean’. It is alleged the applicant then masturbated his penis for approximately four minutes and, despite the complainants wanting to leave the shower, made them wait until he was finished.
On another occasion between 21 February 2012 and 31 December 2012, TJ, then aged nine, was laying on the couch watching television with the applicant laying behind her. The applicant is alleged to have taken her hand and placed it over his jeans on top of his erect penis. TJ pulled her hand away and went to her bedroom, at which time the applicant left the house.
Also between 21 February 2012 and 31 December 2012, it is alleged the applicant was again present at his home at Wandong with TJ, helping her with stretches in the lounge room. It is alleged that the applicant pulled TJ into her bedroom and threw her face down onto her bed and with her legs still touching the floor. The applicant then held her arms behind her back, removed her clothing and kicked open her legs. It is alleged that the applicant then inserted his penis into TJ's vagina.
She screamed and attempted to fight back, however, the applicant put his hand over her mouth and pulled her hair, causing her to become anxious and to have trouble breathing. TJ stopped moving. The applicant finished the assault and left the room.
Later that night, it is alleged that the applicant entered TJ's bedroom and told her, ‘If you tell anyone, I'll hurt your mum, your nan and your pop’.
During his record of interview on 8 August 2019, the applicant denied all allegations relating to each complainant. Mr Casement, who appears on the applicant's behalf, has emphasised the fervour of that denial.
The applicant
The applicant is aged 52. Prior to being on remand, he resided with his fiancée, LV, and her two teenage boys in Wallan. He ran his own business as an electrician under the business name [redacted]. That business provided electrical services to the Western and Northern suburbs of Melbourne. As I understand it, the business is essentially comprised by the applicant only. It is accepted that the applicant does not have a prior criminal history.
The applicable legislation
Section 4 of the Act makes it plain that the applicant is entitled to bail unless the Act requires the Court to refuse bail. Having been charged with a Schedule 2 offence, namely rape, s 4AA(3) dictates that the 'compelling reason test' applies to a decision whether to grant bail. That is, pursuant to s 4C(1A) of the Act, the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The burden of satisfying the Court that a compelling reason exists rests with the applicant.[2]
[2]Bail Act s 4C(2).
In considering whether a compelling reason exists, s 4C(3) of the Act requires the Court to take into account the ‘surrounding circumstances’ in s 3AAA of the Act. I will refer shortly to those considerations.
The meaning of ‘compelling reason’ has been considered on a number of occasions, and most recently by the Court of Appeal in Christopher Rodgers v The Queen [2019] VSCA 214 (‘Rodgers’), where the Court said:
'There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.[3]'[4]
[3]Re Alsulayhim [2018] VSC 570 [27]–[28]. See also, Re Ceylan [2018] VSC 361.
[4]Christopher Rodgers v The Queen [2019] VSCA 214 (citations in original).
If the Court is satisfied that a compelling reason exists that justifies the grant of bail, the Court must then apply the ‘unacceptable risk test’ pursuant to s 4D(1)(b) of the Act. Bail must be refused if the prosecutor satisfies the Court that there is an unacceptable risk that, if released on bail, the applicant would:
(i)endanger the safety and 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.[5]
[5]Bail Act s 4E(1)(a).
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court again to have regard to the ‘surrounding circumstances’ within s 3AAA of the Act, and to 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 s 5AAA(1) of the Act, the Court must make enquiries of the prosecutor as to whether there is a FVIO or other family violence safety notice or domestic violence orders in force against the applicant. The Court must then 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.[6] This Court has been made aware that there are several such orders in place, to which I have earlier referred. Indeed, the applicant relies on the existence of those FVIOs on the basis that they were made recently and consented to by him.
[6]Ibid s 5AAAA(2).
Finally, when interpreting the Act, the Court is required by s 1B of the Act to take into account the following:
(1)The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extend 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.
The applicant’s submissions
On behalf of the applicant, Mr Casement of counsel, has raised a number of matters and suggests that these matters, in combination, demonstrate a compelling reason that justifies the grant of bail.
Firstly, prior to being on remand, the applicant resided at an address in Wallan with is fiancée and her two teenage son, which the applicant submits is suitable and appropriate accommodation for him to return to. LV is supportive of the applicant's bail application.
Secondly, it is put that the applicant has stable work available to him. The applicant has worked throughout his life as an electrician and currently is self-employed with his own electrical services business. If granted bail, the applicant would intend to resume running his business.
Thirdly, counsel for the applicant at least implied some weaknesses in the prosecution case. The applicant strenuously denies the alleged offending, as is demonstrated by the record of interview, and it was submitted that the credibility and reliability of the complainants will be in issue. That, of course, will always be so in a case of this kind.
Finally, Mr Casement raised the issue of the length of time the applicant would spend on remand if denied bail. As stated earlier, the applicant has been in custody since his arrest on 8 August 2019 and the matter is next listed for committal mention on 22 October 2019. Inquiries made on behalf of the applicant with the Shepparton Magistrates' Court indicate that the next available date for a contested committal is anywhere from four to 12 weeks from the date of committal mention. The estimated timeframe for a trial, should the applicant be committed for trial in December 2019 or January 2020, is approximately 10 months. As I understand it, sex offences have priority in the County Court list. If bail is refused and a trial were to commence within this timeframe, the applicant would be on remand for over a year.
In relation to the issue of unacceptable risk, Mr Casement drew the Court’s attention to the applicant’s lack of prior history and the fact that the applicant consented, without admission, to two final FVIOs, which are said to protect each of the complainants in this matter. It was also submitted that there are a number of conditions that could be imposed to mitigate any risk, including zone prohibitions. It was put by Mr Casement that the applicant would comply with all those obligations.
In the written material, the applicant also seemed to assert that there was a significant lapse between the alleged offences in May 2001 and those in December 2012 as well as a delay in reporting these matters to the police. That matter was not specifically referred to in the submissions made to me, and I am not sure in particular what follows from that except that it is true.
The respondent’s submissions
The respondent is opposed the application for bail on the grounds that a compelling reason has not been established by the applicant. Mr Singh, on behalf of the respondent, asserts that if the Court is satisfied that a compelling reason has been shown, bail should still be refused on the grounds that the applicant is an unacceptable risk of endangering the safety of witnesses and interfering with witnesses.
Mr Singh submitted that the fact that a person, such as the applicant, has accommodation, a supportive partner and employment is not, of itself, unusual. It was accepted that the applicant had no prior history. However, relevant to the suitability of his residence and the support of his partner, it was put that the applicant's relationship with LV is tumultuous. Mr Singh tendered a document, described as a LEAP Report, which became an exhibit at the hearing and contained allegations of family violence within that relationship. Those allegations are not accepted by the applicant.
In relation to both the existence of compelling reasons and the unacceptability of his risk, the respondent submitted that taking the LEAP Report together with the present charges, the applicant has an alleged history of 20 years of violence against his partners and children.
Mr Singh, on behalf of the respondent, advised the Court that the complainants have expressed fear for their safety should the applicant be granted bail, even under stringent conditions. The complainants hold these fears despite the FVIOs currently in operation.
In response to the applicant’s submission on delay, the respondent concedes that it is regrettable to wait a year for trial; however, it was submitted that it is not such a length of time that it amounts to a compelling reason.
Finally, the respondent submitted that the alleged offending involved serious sex offences against children, and advised the Court that there are other matters that may or may not result in further charges against the applicant. I will deal with this matter on the basis of the charges that have been brought.
Analysis
Beginning from the premise set out by Rodgers that a compelling reason must be must be 'forceful’ and ‘convincing’, I turn to the relevant surrounding circumstances to assess those matters raised by the applicant.
The nature of the allegations against the applicant are extremely serious. They involve acts of sexual violence against young children over a period of time in circumstances where trust was breached. The acts alleged by each of the complainants were forceful and relatively violent.
It is not easy to assess the strength of the prosecution case at this early stage. I have read the statements in the brief and, while there may be triable issues as Mr Casement said, it is not correct to say this is a weak case. Additionally, a strenuous denial made by the applicant in the course of his record of interview does not convert the prosecution case into a weak one.
Further, the strength of the applicant’s submission that suitable accommodation establishes a compelling reason is affected by the more recent allegations of family violence within that home.
Reliance was also placed on the electrical business conducted by the applicant. As I understand it, the business is comprised solely of him. It was not suggested that others would be disadvantaged if his work ceased to operate.
As to the delay, I accept that the applicant may spend a year in remand prior to the trial being heard if bail is refused. I agree with the respondent that a delay of this order is unfortunate but not unusual. It has not been suggested that that a period on remand is likely to approximate or exceed the sentence which might be imposed should the applicant be found guilty of these matters. I do not believe it is controversial that if the applicant is found guilty of these matters, then a very substantial prison sentence would follow.
Conclusion
Having considered the matters relied upon by the applicant, separately and in combination, and within the context of the surrounding circumstances, I am not persuaded there is compelling reason that would justify a grant of bail to the applicant. Having not been satisfied, I do not need to consider the risk of releasing the applicant and whether it is unacceptable.
In those circumstances, the application for bail is refused.
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