Re Thompson
[2023] VSC 274
•17 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0066
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an Application for Bail by DIRK FRANCIS THOMPSON | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2023 |
DATE OF JUDGMENT: | 17 May 2023 |
CASE MAY BE CITED AS: | Re Thompson |
MEDIUM NEUTRAL CITATION: | [2023] VSC 274 |
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CRIMINAL LAW — Application for bail — Stalking — Rape — Assault, sexual assault, criminal damage, false imprisonment — Serious alleged offending — Surveillance of complainant, ex‑partner — Applicant must demonstrate a compelling reason exists to justify granting bail — No prior criminal history — Compelling reason satisfied — Unacceptable risk established — Bail denied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Matthew Page | Leanne Warren & Associates |
| For the Respondent | Nadia Deltondo | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Dirk Thompson [‘the applicant’] seeks bail in the following matters:
Informant Senior Constable Samuel Gale[1]
[1]See affidavit in support filed 11 April 2023, exhibit LW‑1 for a copy of the charge sheets in the informant Gale matter.
Alleged offending between 19 March 2021 and 31 August 2022[2]
[2]Charges 1–19 were filed on 31 August 2022; charges 20–36 were filed on 25 October 2022.
(a) rape (seven charges);
(b) rape by compelling sexual penetration;
(c) attempted rape (two charges);
(d) assault (six charges);
(e) sexual assault (three charges);
(f) assault with intention to commit sexual offence (two charges);
(g) recklessly causing injury;
(h) false imprisonment (six charges);
(i) criminal damage (four charges);
(j) stalking;
(k) installation, use and maintenance of optical surveillance devices;
(l) threatening to distribute intimate image; and
(m) theft.
On 31 August 2022, the applicant presented himself to Bendigo Police Station and was arrested. He has remained in custody since, and as at the date of the bail application on 1 May 2023, has spent approximately eight months in custody. This is his first time in custody.
On 14 March 2023, a bail application was heard and refused at the Bendigo Magistrates’ Court. The application was refused on the basis that:
(a) the applicant failed to show a compelling reason justifying bail; and
(b) there was an unacceptable risk that the applicant would commit an offence while on bail, endanger the safety or welfare of any person, and interfere with a witness or otherwise obstruct the course of justice.
On the same day, a final family violence intervention order [‘FVIO’] was made in the Bendigo Magistrates’ Court protecting the complainant, being the ex‑partner of the applicant. The FVIO will not expire until 2033.
Informant Senior Constable Steven Mazziol[3]
Alleged offending 10 July 2022, charged 5 September 2022
[3]See supplementary affidavit in support filed 17 April 2023, exhibit LW‑2A, for a copy of the informant Mazziol charge sheets.
The applicant is also subject to summons in the matter of Informant Mazziol for three unrelated charges pertaining to driving while under the influence of alcohol. These charges are for:
(a) driving a motor vehicle while more than the prescribed concentration of alcohol was present in his breath;
(b) within 3 hours of driving a motor vehicle, furnishing a sample of breath for analysis which indicated more than the prescribed concentration of alcohol was present in his breath; and
(c) driving a motor vehicle whilst under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the motor vehicle.
The applicant’s matters are next listed on:
(a) 22 May 2023 in the Kyneton Magistrates’ Court for mention (the informant Mazziol matters); and
(b) 7 and 8 June 2023 in the Bendigo Magistrates’ Court for contested committal (the informant Gale matters).
It appears in these circumstances that a trial of the applicant’s indictable matters is unlikely to occur until well into 2024.
The alleged offending
Informant Gale matters
Background
The applicant and the complainant, aged 39 and 30 at the time of offending, have known each other for approximately eight years. They met in 2015 through a dating app and commenced a relationship shortly after.
In 2019, after living in Castlemaine together for four or five years, the pair purchased a block of land in Lockwood South and built a home. However, following fertility issues and unsuccessful rounds of IVF, the couple’s relationship deteriorated. It is alleged that this was when the applicant’s violence towards the complainant began.
In December 2021, the couple ended their relationship, and the applicant commenced living in the shed on their shared property in Lockwood South. Despite their separation, the pair maintained a sexual relationship. The complainant also began dating other people.
In mid‑2022, the applicant moved to Melbourne. The applicant and complainant agreed the applicant could continue storing his belongings in the shed, and stay in the shed when he returned to Lockwood South.
The following is a brief summary of the offending alleged against the applicant.
19 March 2021 (recklessly causing injury, false imprisonment, assault, and criminal damage)
On 19 March 2021, the applicant and complainant had a verbal argument inside their home in Lockwood South. The complainant attempted to exit the room but was blocked by the applicant, who grabbed a hold of the complainant’s arm and pushed her back numerous times. This continued for a few minutes until the applicant left and punched a door in anger. The complainant photographed the bruising and filmed some of the incident. The court was provided with mobile phone footage of this incident following the bail application, which has been viewed. The applicant appears to have engaged in very aggressive verbal conduct, including screaming at the complainant and repeatedly calling her a coward. He was at the time physically threatening, and advanced towards the complainant. The complainant appeared to be extremely frightened by his conduct and pleaded for the applicant to stop his behaviour towards her.
6 July 2022 (stalking)[4]
[4]Charge 2 relates to all incidents of stalking alleged to have occurred between 1 June 2022 and 31 August 2022.
At 1:00am on 6 July 2022, the complainant and SG, a man she was dating, were asleep in bed at her Lockwood South home. SG realised someone else was in the room and woke the complainant, who found the applicant standing on her side of the bed watching them. The applicant then fled the house. The complainant called the applicant, who stated he was there as he “wanted proof” and “to see it with [his] own eyes”.
17 July 2022 (stalking,[5] criminal damage)
[5]Ibid.
At 11:15pm on 17 July 2022, the complainant was having sexual intercourse in the lounge room of her Lockwood South home with KM, a man she was then dating. Unknown to the complainant, the applicant entered the house whilst they were having intercourse and watched them through an inspection camera for approximately two minutes. Inspection cameras are apparently digital cameras used by trades people to inspect areas that are too cramped, too far away, or out of reach.
The applicant then returned to his van, waited for KM to leave, and then followed KM as he left the complainant’s address.
The following day, KM discovered he had a flat tyre and screws in his tyres.
24 July 2022 (stalking,[6] threatening to distribute intimate image, knowingly installing and maintaining an optical surveillance devices)
[6]Ibid.
On 24 July 2022, the complainant went for a walk with KM in Kangaroo Flat. As they walked, the complainant observed the applicant’s van drive past. She observed the applicant drive past again after KM had left in his own vehicle, at which point she returned to her car and tried to call KM. The applicant then parked behind her vehicle, preventing her from leaving, exited his car, and started banging on her windows. The complainant got out of the car and the applicant allegedly begged the complainant to get back with him and admitted he had previously snuck into her house, hidden under her bed, and saw her sleeping with another man. The applicant then allegedly threatened to distribute a video of the applicant having intercourse with another man to her work colleagues and friends.
29 July 2022 (two charges of false imprisonment, two charges of assault)
On 29 July 2022 while at her home in Lockwood South, the complainant spoke to the applicant about the boundaries of their relationship and stated she wanted her space back. The applicant became immediately aggressive. As the complainant tried to walk away, the applicant dragged her to the bedroom and sat on top of her. The applicant then yelled at her to tell him the truth, as he punched the bed beside her head.
The complainant offered the applicant dinner, and then grabbed her keys and ran through the back door as soon as he stood up. The applicant followed and grabbed the complainant, dragged her back inside and threw her back on the bed whilst yelling in her face. The complainant ran to the toilet, shutting the door behind her. The applicant ripped the toilet door off its hinges, pinned her against the wall and continued to yell at her. The complainant told the applicant she was scared and he was hurting her, and he then let her go.
16 August 2022 (stalking)[7]
[7]Ibid.
On 16 August 2022, the complainant was driving to Kangaroo Flat when the applicant began to follow her in a white utility motor car. Shortly after, she checked the CCTV footage outside her home from her mobile phone and observed the same utility pull up to her home and park in her driveway. She called the applicant, who denied he was in the area and became verbally abusive towards her. He asked the complainant to prove that he was there, at which time she attempted to retrieve the CCTV footage, and realised it had been deleted.
The complainant then attended her parents’ house and made disclosures to them about the alleged offending, including the applicant’s threat to distribute the video of her having intercourse.
17 August 2022 (stalking,[8] criminal damage)
[8]Ibid.
On 17 August 2022, the complainant stayed at her friend DM’s address.
On 18 August 2022, DM reviewed CCTV footage at his address from the night before, and observed two men tampering with the complainant’s car. DM showed the complainant, and she identified that the applicant and his friend Robert Bellis as the men in the footage.
18 to 19 August 2021 (stalking,[9] seven charges of rape, three charges of sexual assault, rape by compelling sexual penetration, attempted rape, unlawful imprisonment, assault)
[9]Ibid.
At 1:00am on 19 August 2022, the complainant arrived home and found the applicant hiding under the bed. The applicant became aggressive, dragged the complainant to the bedroom and pushed her onto the bed. The applicant pulled the complainant’s jumper up and tried to remove her bra, as the complainant cried hysterically and said “I don’t want to do this”. When the applicant continued trying to rip the complainant’s bra off, the complainant asked him to stop and removed the bra herself. The applicant grabbed her breasts roughly, and the complainant begged him to stop.
A series of events is then alleged to have occurred over a period of time essentially constituting multiple instances of rape. The allegations include instances of digital rape, oral rape, rape with an instrument, than a delay in activity, followed by an allegation of attempted rape, oral rape, and instances of violence being carried out.
Later the same morning the complainant went to her friend JC’s house and disclosed some of the issues she had been having with the applicant. She did not disclose allegations of rape on this occasion.
The complainant returned to her home later that day and spoke to the applicant. She told him that he had scared her, and that she had thought he was going to kill her. He allegedly said that if he was ever going to kill her, it would have been the night he saw her with another man. The complainant also confronted the applicant about the footage of him tampering with her tyre the day before, and he said that he had put chalk on her tyre in order to know if her car was moving.
20 August 2022 (criminal damage)
On 20 August 2022, the complainant noticed a warning light flashing on her dashboard, and accordingly arranged to drive her sister’s car to work the following day. When she went to leave for work, she realised one of the tyres of her sister’s car (which had been parked outside her parents’ address) had been slashed. She later realised that the tyre for her own car was flat, and that the valve had been damaged.
On 21 August 2022, the complainant met with the applicant and said that she could not live in fear any longer and that things had to change. The following day, she installed a camera in the kitchen and dining area of her home.
26 August 2022 (stalking)[10]
[10]Ibid.
On 26 August 2022, footage from the complainant’s security camera depicted the applicant entering her bedroom at 6:00am while she slept, and then leaving 10 minutes later. Screentime data on the complainant’s phone also showed that multiple social media applications had been opened on her phone at this time, which she believes was the applicant monitoring her communications.
27 August 2022 (stalking)[11]
[11]Ibid.
On 27 August 2022, the complainant went home to pack a bag and feed her pets, having decided that she would stay with her parents. The applicant was already at the address when she arrived, and became aggressive after she informed him that she was going to live elsewhere. Fearful, the applicant grabbed her keys and fled the house.
After the complainant left, the applicant sent her an image of a cut on his arm. The complainant advised the applicant to go to hospital. In response, the applicant made comments insinuating he was going to end his life. The complainant called police and requested they perform a welfare check on the applicant.
On 28 August 2022, the complainant showed her grandmother a video she had taken of the incident on 19 March 2021, as well as the security footage showing the applicant in her home on 26 August 2022.
31 August 2022 (two charges of assault with intent to commit a sexual offence, attempted rape, theft, two charges of false imprisonment, two charges of assault)
On 31 August 2022, the complainant returned home, as she had made arrangements for a locksmith to attend and change the locks. Not long after her arrival at 8:00am, the applicant entered her house. He then cornered the complainant as she attempted to walk away from him, dragged her into the bedroom and threw her onto the bed. The applicant removed his clothes and began masturbating over the complainant.
The complainant pleaded with the applicant to stop and asked if she could get a glass of water. As the applicant went into the kitchen, the complainant ran out the front door. Still naked, the applicant chased the complainant, catching her by the front gate and attempting to drag her back into the house. The applicant inserted his fingers into her mouth as he tried to drag her, then grabbed her by her hair and attempted to insert his fingers into her anus.
The complainant screamed for help. The complainant’s neighbour KB heard this and exited her house, at which time she saw the applicant standing naked over the victim, pushing her towards the house. KB recognised the applicant and yelled out at him to stop. The applicant eventually let go of the complainant, who ran inside KB’s house and disclosed that the applicant had tried to rape her.
KB called police. Police attended the scene that morning and took swabs of blood located on and around the bedding and photographs of the complainant’s injuries, which included scratches to her right shoulder, inner mouth, and left foot. Police also seized the applicant’s torn shirt from the complainant’s bedroom, as well as clothing the complainant had been wearing that day.
The applicant left the complainant’s address in a white utility prior to police arrival. He is alleged to have taken the complainant’s phone with him, resulting in the charge of theft.
That afternoon, police attended the address of the applicant’s friend Robert Bellis, and stated that they needed to speak with the applicant.
Arrest and police interview
At 8:00pm on 31 August 2022, the applicant attended Bendigo Police Station and was arrested. Police commenced a formal interview with the applicant, which was suspended shortly after due to his level of intoxication and lack of sleep.
On 1 September 2022, a formal interview recommenced. During this interview, the applicant made admissions to several allegations of stalking, however denied having sexually offended against the complainant.
Following the interview, the applicant was charged with charges 1–19 and remanded into custody.
On 2 September 2022, a search warrant was executed at the applicant’s home in Essendon. Multiple cameras were found and seized, including a concealed camera containing footage of the applicant and the complainant having intercourse inside the complainant’s home between 22 and 26 July 2022.
On 6 September 2022, police searched the complainant’s home and shed with her consent. Inside the shed, police located multiple concealed cameras.
On 25 October 2022, charges 20–36 were laid against the applicant.
Informant Mazziol matter (summons)
At 4:50pm on 10 July 2022, police were notified of an erratic driver in a white utility on the Calder Freeway, who was observed by an independent witness to be swerving across the left‑hand side of the road and almost hitting safety barriers, and swerving to and from the right hand lane. The witness followed the utility and observed it almost collide with three vehicles in the right‑hand lane. Police attended and by then observed the white utility parked on the side of the road. The applicant was asleep in the driver’s seat.
Police woke the applicant and required him to undergo a preliminary breath test. The results indicated alcohol was present in the applicant’s breath. The applicant attended Kyneton Police Station to undergo an evidentiary breath test. On being interviewed the applicant said he had no idea he was over the limit, and had taken no notice of how much he had to drink.
The analysis of the evidentiary breath test concluded the applicant had a breath alcohol concentration of 0.133, in excess of the 0.05 limit. The applicant was interviewed and released pending summons, with his vehicle impounded for 30 days. Three charges were filed at Kyneton Magistrates’ Court on 5 September 2023 in relation to this alleged offending.
The applicable legislation
Guiding principles
In determining an application for bail, the court is required to have regard to the guiding principles as set out in section 1B(1) of the Bail Act 1977 [‘the Act’].[12]
[12]The Act s 1B(2).
First step — compelling reason
To succeed in this application the applicant is required to demonstrate that a compelling reason exists that justifies the grant of bail, under section 4AA(3) of the Act. This is because he is accused of Schedule 2 offending, but not in circumstances where the exceptional circumstances test would instead apply.[13]
[13]Namely, rape, rape by compelling sexual penetration and assault with intent to commit a sexual offence. See the Act, sch 2, items 9–11.
Bail must therefore be refused unless the court is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[14] The onus is on the applicant to demonstrate this. In considering whether compelling reasons exist, the court must take into account the surrounding circumstances, including, but not limited to, those in section 3AAA(1) of the Act.[15]
[14]The Act ss 4C(1A) and (2).
[15]The Act s 4C(3).
The applicant relies on a combination of circumstances to satisfy the compelling reason test, as he is entitled to do.
Second step — unacceptable risk
If satisfied that a compelling reason exists that justifies the grant of bail, the court is required to then consider the unacceptable risk test.[16] Bail must be refused if the court is satisfied by the respondent there is a risk that the applicant would engage in any of the conduct outlined in section 4E(1)(a) of the Act, and that such a risk is an unacceptable one.[17]
[16]The Act s 4D(1)(b).
[17]The Act s 4E.
In applying this test, the court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[18]
[18]The Act s 4E(3).
Family violence risks
In considering whether to grant bail, the court is also required to make inquiries of the prosecutor as to whether there is in force against the applicant any family violence intervention orders, family violence safety notices or recognised domestic violence orders.[19]
[19]The Act s 5AAAA(1).
The applicant’s personal circumstances
The applicant is 40 years of age.
When the applicant was four years old, his mother died of leukaemia. Following this, he mostly lived with his aunt and uncle and his grandparents. The applicant left school after Year 11 and completed an apprenticeship as an electrician. He then joined the army, serving in East Timor and Afghanistan. He has performed duties as a medic and a rifleman. After his discharge from the army he returned to Castlemaine in 2014. Prior to being remanded in custody, the applicant worked as an electrical subcontractor.
Family violence intervention order in force
The applicant is the respondent to a final FVIO with a full no‑contact condition protecting the complainant. The order was made on 14 March 2023 and remains in effect until 13 March 2033.[20]
[20]Supplementary affidavit in support filed 17 April 2023, exhibit LW‑3A. There is a limited exception which allows the applicant to go to the complainant’s home in the company of a police officer to collect personal property.
Criminal history
The applicant does not have a criminal history. It is his first time in custody.
The applicant’s contentions
The applicant relies on the following matters, in combination, to show a compelling reason that justifies the grant of bail.
Nature and seriousness of the alleged offending
The applicant concedes the alleged offending is serious. It was acknowledged that, if proven, the applicant will be liable to a substantial term of imprisonment.
Strength of the prosecution case
The applicant submits it is premature to make an assessment of the prosecution case, as the matter is yet to proceed to a committal. Notwithstanding this, the applicant disputes the factual basis of the charges, having denied having non‑consensual sex with the complainant in his police interview.
It was conceded that in his interview, certain admissions were made by the applicant, such that there will be a threshold case made out in relation to the stalking charges.
In relation to the charges of sexual assault and rape, it was submitted that consent will be a significant issue, and as often in such cases, the credibility and reliability of the complainant will be a central issue.
Criminal history and bail compliance history
The applicant highlights he does not have a criminal history. He also notes he has not previously been on bail, and that there is no evidence to suggest he would not abide by any bail conditions or orders of the court.
Family support and stable accommodation
If granted bail, the applicant proposes to reside with his aunt and uncle, Lyn and Philip Purdy, at their home in Malvern East, in Melbourne. The applicant submits the accommodation is stable and two hours away from Lockwood South.
The applicant highlights the support of his family, namely: his father, his maternal aunt and uncle (who are offering accommodation), and his paternal uncle and aunt Gary and Susan Thompson (who are offering a surety).
At the hearing of the application, Lyn Purdy and Gary Thompson gave evidence.
Lyn Purdy, the applicant’s aunt, gave evidence that the applicant would have his own space in the home if bailed. She stated she had always had a good relationship with the applicant and been in consistent contact with him. She stated that she was aware he had been arrested and charged with serious criminal offences against his ex‑partner, including rape, stalking and false imprisonment. Ms Purdy undertook to the court that were she to become aware that the applicant was breaching any conditions that may be imposed on him if bailed, she would contact the informant. Ms Purdy also noted that she and her husband intend to travel between 22 June 2023 and 6 September 2023. During this period, it was proposed that the applicant’s uncle, Gary Thompson, would move into the house with him.
Gary Thompson, the applicant’s uncle, gave similar evidence, to the effect that he was aware of the charges against the applicant broadly, and had consistent contact with the applicant, including during his remand. He indicated he was willing to provide a $100,000 surety to the court against his home, in order to support the applicant’s bail.
Employment
The applicant has been offered employment at ‘Eldarin Services Metro’, a company that maintains and renews electrical, road, rail and local government infrastructure. The position would be on a casual basis, with the potential to become full time, dependent on performance. The locations of the projects vary but the applicant’s work would be primarily in central Melbourne and surrounding suburbs.[21]
[21]Supplementary affidavit in support filed 17 April 2023, exhibit LW‑5A.
At the hearing, Mr Bill Pearce, the director of Eldarin Services Metro, gave evidence. He stated that the company does electrical work with for Yarra Tram network and councils within Melbourne. Mr Pearce stated that the applicant had appropriate and desirable skills for employment with his company. However, as it was nearing the end of the financial year, Mr Pearce clarified there had been a ‘freeze’ on new projects and that as such, work for the applicant could not be guaranteed until after the start of the new financial year. Mr Pearce stated that he anticipated that the work available for the applicant would be part‑time, and range from probably 12 to 20 hours a week.
In cross‑examination, it emerged that Mr Pearce was not aware that the applicant’s charges involved rape and stalking against the applicant’s domestic partner at the time, nor the length of time over which it allegedly occurred. Mr Pearce stated that he could not categorically guarantee the applicant a job. He provided an undertaking that he would contact the informant if the applicant was to attend work intoxicated.
Availability of treatment or bail support services
The applicant has ongoing weekly treatment for anger management and conflict resolution available to him with clinical and forensic psychologist Jeffrey Cummins.[22] Mr Cummins provided a report dated 20 February 2023 as part of the supplementary affidavit in support of the bail application. He does not diagnose the applicant with any mental disorders, nor issues with alcohol or other substances.
[22]Ibid.
The applicant has also started accessing support with John Raike, a Senior Chaplain at Victoria Barracks.[23] This will continue to be available to the applicant if granted bail.
[23]Affidavit, [17(d)].
Mr Raike gave evidence that he has spoken to the applicant on a weekly basis by way of phone calls during his remand. He has provided the applicant with pastoral care, talking through personal and family issues and service issues that he encountered whilst in the army, which he regularly does with service people. He was broadly aware of the charges against the applicant.
Surety
The applicant’s paternal uncle and aunt, Gary and Susan Thompson, offered a $100,000 surety, by way of available equity in real property,[24] as I have already discussed.
[24]The necessary surety documents were provided to the court via email correspondence on 27 April 2023. These documents confirm that the value of the property is $1,000,000.
Unacceptable risk
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of the conditions of bail, including:
(a) to reside at the Malvern East address;
(b) a curfew;
(c) a surety;
(d) to comply with the directions of Mr Cummins, a clinical and forensic psychologist, or a nominee in relation to the provision of treatment;
(e) not to associate with witnesses for prosecution other than the informant; and
(f) any other condition the court considered appropriate.
The applicant relies upon the availability of stable accommodation, the active intervention order protecting the complainant, and his lack of criminal or bail history.
Furthermore, the applicant states he is aware the substantial surety available would be forfeited if he reoffended or failed to comply with any condition of bail, as are his family members offering the surety.
The applicant also relies on the report of Jeffrey Cummins dated 23 February 2023, which states at [34] and [38]:
In my opinion [the applicant] displays none of the usual indicators that would be of relevance in terms of assessing a person’s risk of committing an offence of violence or a sexual offence … it is my opinion Mr Thompson has been charged with offending which would be best described as situationally motivated.
…
On the basis of my assessment of him, I would expect him to co‑operate with any conditions of bail which are imposed upon him. Further, I would expect him to actively involve himself in mental health treatment with a focus on treatment pertinent to the current allegations.
Mr Cummins also gave evidence at the bail application. He stated that he had concluded that the applicant took the allegations very seriously and that the applicant had reported some mental health symptoms including negative ruminative thinking, worry and disturbed sleep. Further, Mr Cummins opined that at the time of the alleged offending, the applicant was experiencing significant turbulence in his mental health characterised by acute symptoms of depression and grief, but that those symptoms were no longer present.
Mr Cummins did not test the applicant in relation to the ‘Static‑99R’ (being a psychological testing tool used to measure the risk of sexual reoffending) on the basis that it is only to be used if a person has prior matters of a relevant nature. Instead, he relied solely upon the ‘RSVP’ (‘Risk for Sexual Violence Protocol’), being a set of structured professional guidelines. Based on this assessment Mr Cummins concluded that the applicant’s risk of further sexual offending was low.
In terms of the applicant’s alleged violent offending, Mr Cummins stated he was not able to complete a full assessment of the applicant’s risk profile due to limitations associated with distinguishing allegations from established facts in relation to the alleged offending.
In his report, whilst acknowledging that the applicant has been charged with very serious offending, Mr Cummins expressed the opinion that:
Mr Thompson displayed none of the markers which are commonly observed in persons who commit the sorts of offences which he has been alleged to commit. In my opinion his level of risk can be adequately managed with him being on bail in the community and with one of the conditions being that he attended my rooms and/or those of a similarly qualified mental health practitioner on a very regular basis – with a focus on his general mental health and on assisting him to discuss the nuances of the current allegations.
Mr Cummins concluded that this alleged offending arose in the context of the breakdown of an intimate relationship which became complicated. The complications were said to have arisen because the couple agreed to see other partners, which the applicant allegedly viewed as “very provocative” and struggled to deal with. Mr Cummins therefore proposed treatment in the form of supportive psycho‑therapy to encourage the applicant to develop more insight into the matters that he is dealing with.
The respondent’s contentions
The respondent concedes that it is open to the court to find that a compelling reason exists justifying the grant of bail. However, the application is opposed on the basis that the applicant is an unacceptable risk of endangering the safety and welfare of the complainant.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following matters.
Nature and seriousness of the alleged offending
The respondent submits that the alleged offending is extremely serious, highlighting that the applicant is alleged to have raped, stalked, falsely imprisoned and sexually assaulted the complainant. The respondent further describes the alleged offending as pre‑planned and protracted.
Strength of the prosecution case
The respondent contends that the case against the applicant is strong, particularly in relation to the stalking charges. It disputes the applicant’s submission that it is premature to assess the strength of the prosecution case before committal. At the hearing, the respondent submitted that, in relation to the violent and sexual offending, there is surveillance footage and testimony from a neighbour and the complainant’s boyfriend, which backs up the complainant’s account.
Criminal history
The respondent acknowledges that the applicant has no prior criminal history.
Availability of treatment or bail support services
In relation to weekly psychologist sessions proposed by the applicant, the respondent highlights that the applicant has not been diagnosed with any psychological disorder or illness.
Employment
The respondent submitted that, based on Mr Pearce’s evidence, the applicant’s employment is not guaranteed, nor likely to commence until the new financial year at the earliest.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent disagrees with Mr Cummins’ assessment of the alleged offending as being “situationally motivated”.
The respondent highlights that the majority of the offending occurred after the applicant and complainant had separated, during which time the applicant was predominately residing in Melbourne. The respondent highlights that the applicant is alleged to have travelled from Melbourne to Lockwood South on multiple occasions for the purpose of committing offences against the complainant.
The respondent submits that the applicant’s behaviour towards the complainant has been violent, coercive, manipulative, and controlling, and has escalated over time.
In relation to Mr Cummins’ finding that there is a low risk the applicant will engage in further sexual offending, the respondent notes his assessment was based largely on the fact that the applicant does not have a criminal history, given Mr Cummins focused on established facts and disregarded the present allegations. The respondent also highlighted that Mr Cummins had noted that he could only complete two thirds of the ‘HCR‑20’ test in relation to violent offending, given there had not been a contested committal in this matter. Much of what Mr Cummins was able to complete related to the ‘historical scale’ domains of this test, which led him to score the applicant a zero, as there was no history to indicate violent offending in the applicant’s teenage or adolescent years.
Mr Cummins stated that, in his view, the applicant has no desire or wish to make any further contact with the complainant.
Discussion
The compelling reason test
As above, the applicant puts forward a combination of factors which he argues establishes a compelling reason why he should receive a grant of bail. These factors include the following.
Strength of the prosecution case
It is to be acknowledged that there are triable issues in relation to the alleged offending and it is proposed there will be a contested trial. Specifically, it was noted that the sexual allegations will be defended on the basis of consent. However, it should also be noted that matters of a sexual nature are not the only matters before the court, as there are also allegations of physical assault and stalking.
The matter has not yet proceeded to a committal hearing, so it is largely premature to comment on the strength of these allegations, other than to remark that there exists independent evidence which the prosecution will argue supports at least some of the allegations put forward by the complainant.
In respect of the stalking and threatening behaviour allegations, I consider these have some strength, given the degree of independent support, and also that the applicant made certain admissions in his police interview. I note in particular:
(a) The applicant admitted entering the complainant’s home and watching her sleep on 6 July 2022. He stated that he knew SG was at the address on this occasion, because he had viewed the CCTV feed beforehand and seen his car in the driveway;
(b) The applicant admitted entering the complainant’s home and watching her have sex with KM on 17 July 2022. He stated that he had parked his car down the road, waiting for a notification on his phone that there was activity on the CCTV system at the complainant’s address. He also admitted waiting outside for KM to leave, and then following him home;
(c) The applicant admitted following the complainant and KM on 24 July 2022, stating that he was watching them because he thought they might have intercourse in the car;
(d) The applicant admitted pulling the bathroom door off on 29 July 2022, stating this was by accident. He denied other allegations put to him regarding that day;
(e) The applicant admitted attending DM’s address on 17 and 18 August 2022 in company with another male, being his friend Robert Bellis. He admitted to tampering with the complainant’s vehicle, and putting chalk on one of the wheels;
(f) The applicant admitted hiding under a bed in the complainant’s house on 19 August 2022, stating that he had been sleeping under the bed;
(g) The applicant admitted entering the complainant’s house and watching her while she slept on 26 August 2022. He denied using her phone during this time;
(h) In relation to the incident on 31 August 2022, the applicant denied all the allegations. He described the events of that day as follows: he and the complainant were having consensual sex, she asked for a drink of water, he went to get her a glass of water at which time she ran out of the house screaming, and he tried to escort her back inside the house. He said that when the neighbour called out, he realised it did not look good. He therefore left the house, told his aunt and uncle he was probably going to disappear for a while, and resigned from his job. He added that he felt that he had been “set up big‑time” and “if I was going to rape her, why would I go get her a drink?”;
(i) In relation to watching the complainant in bed with SG on 6 July 2022, the application stated “yeah, that was me”. He also admitted that he had pulled the camera feed and saw his car;
(j) In relation to the events of 17 July 2022, the applicant admitted to entering the home and watching the complainant and KM have sex;
(k) In relation to the events of 24 July 2022, the applicant admitted to following and watching the complainant;
(l) In relation to the events on 17 and 18 August 2022, the applicant admitted attending DM’s house to survey and damage the complainant’s tyre;
(m) In relation to the events of 19 August 2022, the applicant admitted to hiding under the bed without alerting the complainant; and
(n) In relation to the events of 26 August 2022, the applicant admitted to entering the complainant’s home and bedroom whilst she was asleep.
The applicant otherwise substantively denied the allegations.
I also take into account the evidence that approximately 90 hours of footage has been obtained by the police in relation to the surveillance of the complainant and the house, and there is an independent witness to the aftermath of one of the alleged assaults.
Personal factors
It is notable that the applicant has the offer of stable accommodation, and possible future employment. The applicant has a supportive family, and a substantial surety is able to be provided. He also has the opportunity for ongoing treatment with Mr Cummins for anger management and conflict resolution issues, and has the support of Mr Raike. In this application, these are significant matters weighing in favour of the satisfaction of the applicable test.
I also take into account that he has no criminal history beyond these matters and the drink driving matter that has also been brought to the court’s attention. The court has been provided information in relation to this matter, which involves events on 10 July 2022, where the applicant was apprehended by police travelling south on the Calder Freeway. The applicant was found to have a Breath Alcohol Concentration [‘BAC’] in excess of the prescribed limit and charged with offences under s 49 of the Road Safety Act 1986.
I note also that the respondent conceded at the hearing that the matters outlined above, in combination, are capable of satisfying the court that there are forceful and convincing reasons as to why the compelling reason test may be met.
Taking all these matters into account, I am somewhat reluctantly satisfied that the applicant has met the compelling reason test in this application. It is to be observed however, that these matters put forward by the applicant are to be evaluated in combination, and whilst no one factor might be, or has been, determinative, when assessing the factors in combination, I have formed the opinion that the test has been satisfied.
In reaching this conclusion I have also had regard to and considered the surrounding circumstances as the Act requires me to do.
The unacceptable risk test
Having been satisfied the compelling reason test has been satisfied, pursuant to the provisions of the Act, I am still required to consider whether the applicant poses an unacceptable risk under sections 4D and 4E of the Act. Namely, I must consider whether the applicant poses an unacceptable risk of:
(a) endangering the safety or welfare of any person; or
(b) committing an offence while on bail; or
(c) interfering with a witness or otherwise obstructing the course of justice in any matter; or
(d) failing to surrender into custody in accordance with the conditions of bail;
and, if so, if that risk is an unacceptable one.
As I have already outlined, the applicant has no prior convictions, a stable bail address at which to reside, available psychological assistance, and family members who are capable and willing to provide support and supervision, and a surety, if he is released on bail. Further, he has employment available. I am satisfied that the members of the applicant’s family, as well as his prospective employer, each provided acceptable evidence. Clearly, they were credible and respectable people.
In my assessment of risk, I have considered the substantial surety that has been offered in this case by way of equity in real property owned by the applicant’s uncle. A surety of this nature is likely to represent a deterrent to the applicant re‑offending, or breaching a grant of bail.
However, while accepting a number of these matters outlined above, in my opinion there are significant factors that establish that the applicant does pose, and will remain, an unacceptable risk during any grant of bail. These include the following matters.
In my opinion there are aspects of the prosecution case that are arguably strong. It was conceded by the applicant that if all the charges are proven, a significant period of imprisonment will follow. The applicant made a number of concessions in his police interview in relation to stalking and the use of surveillance devices. In all the circumstances I consider there are good prospects of some of the charges being made out.
In the context of the above, including the degree to which the complainant was persistently and repetitively stalked by the applicant, the degree to which he conducted electronic and personal surveillance, and attempted to control and dominate the complainant, I am of the opinion that there is a risk posed to the complainant if the applicant is to be released on bail. The stalking and surveillance activities must also be evaluated in the light of the applicant’s demonstrated ability to enter the complainant’s residence at unusual times, and secrete himself in the ways that he did, at one point using a camera to view the complainant’s private and personal activities. These are particularly disturbing allegations, and in my opinion represent significant concerns in the resolution of the application. Further, the offending alleged to have been engaged in was protracted. The applicant’s alleged behaviour appears to demonstrate a degree of premeditation, the ability to utilise significant levels of technical skill in his surveillance, and on multiple occasions a willingness to travel a significant distance to carry out his alleged offending. Despite Mr Cummins’ evidence, the court holds significant concerns for the safety of the complainant should the applicant to be released on bail.
I accept that the applicant does not have any mental health diagnosis that would indicate or suggest he has what might be described as a general anger management problem. However, whilst Mr Cummins emphasised that the offending allegedly occurred in “a restricted context” such that “there's no history of offending outside of this context”, I note that Mr Cummins did not have access to any historical records relating to the applicant’s mental health. He also declined to draw any connections between the alleged offending and the applicant’s military history. Further, the limited ability of Mr Cummins to conduct a full sexual offending risk‑assessment has not assisted in ameliorating my concerns in relation to this factor.
As the respondent submitted, the complainant would likely have to move residence and take serious precautions were the applicant bailed. It goes without saying she is entitled to live in peace and privacy, and not be confronted by the applicant’s alleged violent behaviour. I note the applicant’s submission at the hearing that the risk of the applicant re‑offending, or seriously harming the complainant, is slim to almost non‑existent. The very nature and gravity of the alleged offending, in my view, does not support this submission. I note that subsequent to the hearing of the application the court was provided mobile phone footage captured by the complainant of an argument between the applicant and complainant. The applicant’s behaviour in that footage again suggests a high level of anger and controlling behaviour.
The lack of guaranteed employment is also relevant to the assessment of risk. Such employment would likely not commence until July, and is likely to be part‑time and less than 20 hours per week.
As to the support of family and friends, and stable accommodation offered by the applicant’s aunt and uncles, I accept it is genuinely offered. However, on balance, I am not persuaded that such support will contribute, along with other factors, to reduce the risk of the applicant committing further offending to an acceptable level. I note in particular that the Purdy family will be away on holiday for a substantial period of time later this year. Further, the applicant appears to have had consistent support from his family in previous years, however this still has not prevented the applicant from allegedly committing multiple serious offences. I note also in terms of the surety, that this may not be a sufficient deterrent to the applicant potentially re‑offending against the complainant.
I have also had regard to the applicant’s drink driving charge in mid‑2022. I note the Calder Freeway is on the way to Bendigo, near to where the complainant was residing. I am also concerned by the evidence of the applicant’s driving in an erratic manner on the occasions alleged.
Finally, I note that the most serious matters faced by the applicant are listed for a contested committal hearing on 7 and 8 June 2023, a few weeks from now. At the conclusion of that hearing, the evidence of the prosecution witnesses will have been assessed, and the strengths and/or weaknesses of the prosecution case will likely be capable of a more complete assessment than they are at this point. Further, at that point, a more realistic assessment can be made of when the applicant’s trial might be held. The applicant’s bail situation can be reviewed at that stage of the proceedings.
I have taken into account all the matters put forward by the applicant and respondent, and had regard to the guiding principles of the Act.
In my view, in all the circumstances, the respondent has satisfied me that the risk attaching to the grant of bail in the case of the applicant is one that is unacceptable. In my opinion there is an unacceptable risk that if the applicant is released on bail he will commit a further offence whilst on bail and that this risk cannot be ameliorated to an acceptable level by the imposition of stringent conditions.
Given the above, I will refuse the applicant’s application for bail.
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