Rodgers v The Queen
[2019] VSCA 214
•26 September 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0174
| CHRISTOPHER RODGERS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, KAYE and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 September 2019 |
| DATE OF JUDGMENT: | 26 September 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 214 |
| JUDGMENT APPEALED FROM: | [2019] VSC 553 (Tinney J) |
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CRIMINAL LAW – Bail – Appeal – Schedule 2 offences – Appellant required to show compelling reason justifying grant of bail – Judge concluded no compelling reason established – Judge satisfied unacceptable risk established by prosecution – Whether judge’s decision open – Whether judge erred – No error established – Decision open – Appeal dismissed.
CRIMINAL LAW – Bail – Compelling reason – Unacceptable risk – Surrounding circumstances – Nature and seriousness of alleged offending – Length of time accused likely to spend in custody – Likely sentence to be imposed – Bail Act 1977, ss 3AAA, 4AA, 4C, 4D and 4E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D P Sheales | Tait Lawyers |
| For the Respondent | Ms H Spowart | Legal and Prosecutions Specialists Branch, Victoria Police |
BEACH JA
KAYE JA
ASHLEY JA:
On 24 May 2019, the appellant was arrested and taken into custody. The following day, he was charged with 32 offences arising out of incidents alleged to have occurred on 7, 12 and 24 May. Charges 1–18 are alleged to have occurred on 24 May, charges 19–22 on 7 May, and charges 23–32 on 12 May. The appellant has been in custody since his arrest.
The offences with which the appellant was charged were intentionally causing injury (two charges), recklessly causing injury (two charges), unlawful assault (five charges), reckless conduct endangering life (three charges), reckless conduct endangering serious injury, criminal damage, contravening a family violence intervention order (13 charges), persistent contravention of a family violence order, possessing a drug of dependence (methylamphetamine), using a drug of dependence (methylamphetamine), making a threat to kill and recklessly causing serious injury. The complainants in respect of these charges are the appellant’s wife and his two stepchildren.
On 27 June 2019, the appellant was charged with contravening an undertaking given to the Ballarat Magistrates’ Court on 3 July 2018 pursuant to s 83AC of the Sentencing Act 1991. The contravention of the undertaking is alleged to have occurred on 3 December 2018.
On 28 June 2019, the appellant applied for bail in the Ballarat Magistrates’ Court. Bail was refused.
On 15 August 2019, the appellant applied for bail before a judge of the Trial Division. On 20 August 2019, the judge refused that application.[1]
[1]Re Rodgers [2019] VSC 553 (‘Reasons’).
The appellant now appeals against the judge’s refusal to grant him bail. The appellant’s grounds of appeal are as follows:
(1)[T]he judge erred in finding that there were no compelling reasons to justify granting [the appellant] bail.
(2)[T]he judge erred when he failed to take into account, when considering whether the appellant had established a compelling reason, a surrounding circumstance that he was required to take into account: namely the length of time the appellant was likely to spend in custody if bail was refused.
(3)[Ground 3 was abandoned by the appellant during oral argument]
(4)[On the issue of compelling reason], the judge erred [in] rejecting the submissions advanced on behalf of the appellant as to the likely sentence that was open to be lawfully imposed upon the appellant in the event of him being found guilty of the more serious charges laid against him.
(5)The judge erred when he determined that the risk that the appellant, if released on bail, would endanger the safety or welfare of the complainant and the children was:
(a)at first instance unacceptable; and
(b)after consideration as to whether there were any conditions of bail that may be imposed to mitigate the risk, remained [sic] unacceptable.
Appellant’s background
The appellant is 34 years of age and has lived in Ballarat all of his life. His parents, who also live in Ballarat, run a trucking business. He has two brothers who work in his parents’ business and a sister who works as a dental nurse. His family is supportive of him and none of them have ever been in trouble with the police.
The appellant left school in Year 10 and began working for a sand and soil supplier, before working in his parents’ trucking business. At the age of 23, the appellant bought a truck and started his own trucking business, Easy Tippas Pty Ltd. He is the sole director of that company. During the 18 months prior to his arrest and remand, the appellant expanded his business to three trucks, and as a result became indebted to finance companies in an amount of approximately $1 million. His repayments to the finance companies are approximately $18,000 per month. In his business, the appellant employs one fulltime driver. He used to employ an additional part-time driver, but since he has been in custody he has had to put off that driver. The appellant’s parents are currently doing what they can to keep the appellant’s business operating. There is, however, an issue as to how long that situation is capable of continuing.
The appellant met his wife in 2007, and married in 2016. They have two children together, aged six and eight. The appellant’s wife has two other children (the appellant’s stepchildren), aged 12 and 14.
In 2017, the appellant and his wife separated. Issues between them culminated in the making of a full no-contact family violence intervention order in the Ballarat Magistrates’ Court on 21 November 2017. That order identified the appellant’s wife and the four children as the protected persons in respect of whom the order operated.
Subsequent to the making of the intervention order, there was a reconciliation between the appellant and his wife and, on 3 April 2019, the family violence intervention order was varied to allow contact between the appellant, his wife and their children, and also to permit the appellant to live in the family home.
The appellant has a limited prior criminal history, arising from two court appearances.
In September 2014, without conviction, the appellant was fined $1000 for possessing and using methylamphetamine.
On 3 July 2018, the appellant was the subject of a finding of guilt on a charge of unlawfully assaulting his wife. The matter was dealt with by way of a non-conviction bond upon the appellant undertaking to donate $1500 to the White Ribbon Foundation, provide a receipt to the court on or before 3 December 2018, continue counselling he was then undergoing and provide a letter evidencing the continuation of that counselling by 3 December 2018. It is the failure to comply with this undertaking which forms the basis of the charge laid on 27 June 2019 — a charge to which the appellant intends to plead guilty.[2]
[2]See the affidavit of the appellant’s solicitor, Mr Ronald Tait, affirmed 16 July 2019, paragraph 10(g)(v).
Circumstances of the alleged offending
While the events alleged to have occurred on 7, 12 and 24 May 2019 have given rise to 32 charges, it is sufficient for present purposes to adopt the judge’s description of the allegations as follows:
It is alleged that on 7 May 2019, [the appellant] and [his wife] had a verbal argument at home. [The appellant] then allegedly assaulted [his wife] by head-butting and punching her. [The appellant’s wife] sustained a black left eye, a sore cheek bone, and bruising to her right arm and shoulder as a result of the assault, which was witnessed by [the appellant’s] step-daughter.
Five days later on 12 May 2019, [the appellant] and [his wife] planned to attend [the appellant’s] mother’s house, together with their children. An argument ensued when [the appellant] allegedly told [his wife] to cover her bruises with makeup. He then allegedly pinned [his wife] against a towel rack, grabbing her throat and pushing her head through the wall, while threatening her that he would drain their bank account and take their daughters to America.
It is further alleged that when [the appellant’s wife] went to use the computer, [the appellant] wrapped a phone charger cord around [his wife’s] neck and pulled it tight. This was witnessed by [the appellant’s] step-daughter who screamed for him to stop. When [the appellant’s wife] tried to leave, [the appellant] picked up [his wife] and threw her onto the bed, causing her to fall off the bed onto her back. The alleged offending continued as [the appellant] pushed [his wife] against the shower door causing the door to fall and strike [his wife’s] foot, injuring [her] foot and left shoulder. He then pushed her which caused her to fall to the ground, hitting her head.
During the same incident, at a point when [the appellant] had his hands around the throat of [his wife] and was choking her, her son grabbed [the appellant] from behind to get him to stop. [The appellant] allegedly grabbed his step-son by the throat, and then a little later, broke into his bedroom and yelled at him. This incident was also witnessed by [the appellant’s] step-daughter.
On the afternoon of 24 May 2019, [the appellant’s wife] returned home to [the appellant] and her four children. It is alleged that [the appellant] verbally abused [his wife] in front of the children when she refused to eat dinner with him. Following dinner, [the appellant’s wife] tried to leave with her two eldest children, but was unable to do so as [the appellant] had taken her keys and phone, in order to prevent her from calling the police. During this incident, [the appellant] smashed [his wife’s] mobile phone breaking the screen, at which point the confrontation became physical. It is alleged that [the appellant] then grabbed [his wife] around the neck and dragged her back inside, where she was thrown to the ground, causing her to momentarily lose consciousness or the ability to move. Soon after, [the appellant], whilst on top of [his wife], placed his hands around her neck and applied pressure to her neck. [The appellant’s wife] managed to escape this attack by kicking him backwards into the study wall, causing damage to the wall. [The appellant’s wife] told her eldest daughter to contact police. [The appellant] threatened his step-daughter in response to this request. She was able to contact her mother’s friend who contacted police.
Police attended and [the appellant’s wife] handed them a box containing photographs of her injuries sustained as a result of previous incidents of family violence by [the appellant]. [The appellant’s wife] was conveyed to hospital where she was treated for a broken hyoid bone in her throat and substantial bruising on her upper chest, arms and legs.
[The appellant] was arrested by police and a small quantity of methamphetamine (‘ice’) was located. Police also identified a hole in the wall of the study as well as numerous other repaired holes throughout the house.
Upon interview with police, [the appellant] stated that he uses illicit substances on weekends and had used ice at lunchtime on 24 May 2019. He stated that he had used physical force as a means of calming [his wife] but denied strangling her, stating that her bruising was caused during consensual sexual intercourse between the pair.[3]
[3]Reasons [9]–[16].
As is customary in bail applications, the judge had to act on the basis of allegations. With respect to the events of 24 May 2019, which were the source of many of the charges, his Honour was at a disadvantage by having access to a police summary, but not any primary material.[4]
[4]See [30], [58] and [63] below.
The application before the judge
In his application for bail before the judge, the appellant relied upon an affidavit affirmed by his solicitor, Ronald Tait, and an affidavit affirmed by his mother, Anne-Maree Rodgers.
In his affidavit, Mr Tait deposed to the following matters:
(1)The appellant will plead guilty to the charge of failing to comply with his undertaking given on 3 July 2018, and it ‘is likely that guilty pleas would be made to the appropriate charges after discussions with the prosecution are conducted’.
(2)Prior to the bail hearing at the Ballarat Magistrates’ Court on 28 June 2019, the appellant was assessed by CISP Remand Outreach Program, who prepared a support plan for the appellant in the event that he was granted bail.
(3)The length of time the appellant was likely to spend in custody, if bail was refused, would depend on whether negotiations with the prosecution led to a resolution of the charges and a plea of guilty.
(4)In the event of matters not being resolved then the issue would be the length of time it would take to proceed through the court processes to a contested hearing. Negotiations with the prosecution ‘could take a number of weeks’. His estimate (as at 16 July 2019) was that the appellant would be in custody ‘for at least another three months’.
(5)Having regard to the appellant’s personal circumstances, it was ‘likely’ that the appellant would be given a community correction order.
(6)If granted bail, the appellant would reside by himself in a property owned by his parents in Ocean Grove. The appellant would be able to operate his business from this location.
(7)The appellant’s parents were in a position to provide any reasonable amount by way of surety if the court so required.
Mrs Rodgers gave evidence, both in her affidavit and orally in the application to the judge, about the background of the appellant’s trucking business and the business that she and her husband operated, Chrisbev Pty Ltd. The judge summarised Mrs Rodgers’ evidence as follows:
Mrs Rodgers is familiar with and can speak to the financial situation of Easy Tippas, having for years prepared the books of account of the company.
In her affidavit she set out the assets and liabilities of Easy Tippas. The company has a number of outstanding loans which have been serviced by the income of the company. Since the incarceration of the applicant, the loans have only been able to be serviced with the assistance of Chrisbev. The measures instituted by Chrisbev to keep Easy Tippas afloat were short term ones and are not sustainable. When the assistance ceases, Easy Tippas will be in default on its loans and would face liquidation. The applicant would himself face the prospect of his personal guarantees being called upon.
Mrs Rodgers was called to give evidence during the bail application. She indicated in evidence-in-chief that if released on bail, the applicant could reside in her apartment in Ocean Grove and keep a truck or trucks on some land owned by other members of the family in Moolap. It is not necessary to set out a summary of the cross examination.[5]
[5]Reasons [27]–[29].
In submitting to the judge that the appellant had shown a compelling reason for the grant of bail, the appellant relied upon:
·his personal circumstances;
·his financial circumstances;
·the ‘strength of the charge(s) against him’;
·the ‘lawful sentencing range open to any sentencing court upon conviction of the [appellant] of charge(s) laid against the [appellant]’; and
·the likely delay until the charges are determined.
As to the appellant’s personal circumstances, it was submitted to the judge that the appellant was a 34 year old Australian citizen who has a residence owned by his parents available to him. He has gainful employment open to him immediately upon his release from custody and he ‘instructs he is both desirous and willing to undertake treatment and counselling regarding his illicit drug use … [and] he will comply with any condition [the court] sees fit to impose upon him in the event that bail is granted’.
In relation to the appellant’s financial circumstances, it was submitted that if bail were to be refused then the appellant would ‘effectively be financially ruined’: the inevitable outcome of bail being refused being default by the appellant on his business loans, a consequential liquidation of the appellant’s company and an inability on the part of the appellant to provide himself with employment when ultimately released.
In relation to the strength of the prosecution case, in a written submission relied upon before the judge, the appellant contended:
It is not conceded that the prosecution case with regard to all charges is ‘very strong’. As to the allegations generally, the VARE recordings of the children have not been able to be viewed by the defence and accordingly cannot be commented on. It is observed that there does not appear to be an issue between the parties that the complainant [the appellant's wife] is also a habitual user of illicit substances.
Counsel for the appellant made various observations on different issues about the strength (or otherwise) of some of charges to the judge. These observations were said not to be advanced so as to suggest that the prosecution allegations are ‘generically weak, simply that there are serious issues to be tried’.
In oral argument to the judge, the appellant’s counsel said in respect of the fracture to the hyoid bone that:
There was a possible innocent explanation for the injury to be found in the sexual practices of [the appellant] and the complainant and it may not be possible for a tribunal of fact to find that it was necessarily caused by an assault upon the complainant.[6]
[6]Reasons [35].
A number of submissions were made by the appellant’s counsel to the judge on the issue of delay. At one point in his submission to the judge, counsel for the appellant said that delay should be considered in the context of a matter which would go for trial. But in the end he invited the judge to ‘view as the minimum timeframe for completion of the case the period of time it would take to progress through the summary stream, which would be until about January 2020’.[7]
[7]Ibid [36].
With respect to the likely sentence that would be imposed upon the appellant were he to be found guilty of the charges he currently faced, the appellant’s counsel told the judge that:
The only real sentencing option would be a community correction order, or a combined community correction order and term of imprisonment.[8]
[8]Ibid [37].
The respondent opposed the appellant’s application for bail on the grounds that a compelling reason had not been established justifying the grant of bail and that, in any event, there was an unacceptable risk of the appellant engaging in further offending in relation to his family if bail were to be granted.
The judge’s reasons
The judge commenced his analysis by saying that the allegations made against the appellant were ‘exceedingly serious’.[9] As the judge put it:
For a person, in anger, to grab another around the throat and deliberately apply pressure in doing so is an inherently dangerous and serious thing to do. It is alleged that the applicant did this to the complainant on multiple separate occasions on two different days in May 2019. On one occasion, he is alleged to have taken the even more serious course of wrapping a cord around her neck and pulling it tight. This offending is quite disturbing, with a significant and worrying risk of causing serious injury or death.
That is so whether or not it can be established that the fracture to the hyoid bone was caused by an assault perpetrated by the applicant. In this regard, it will be a matter of what the overall evidence is capable of establishing. There is some material which may raise as a prospect that the injury to the hyoid was caused by consensual activity between the applicant and the complainant. That is not to say, however, that the prosecution will be unable to prove that it was the applicant who inflicted this injury in the course of one of his assaults upon the complainant.
…
The choking events and some of the other alleged violence took place in the presence of one or more of the children of the complainant, and in each case, occurred in the family home. In addition, the applicant is alleged to have assaulted his step-son, again by applying force to his throat. In my view, the seriousness of the offending of the applicant is an important matter for the Court to consider.[10]
[9]Ibid [51].
[10]Ibid [51]–[54].
The judge then turned to the strength of the prosecution case, saying:
As for the strength of the prosecution case, it is somewhat difficult for me to definitively assess this as I have not had the opportunity of viewing the DREIC[11] of the complainant or the VAREs of the children. As far as I can tell, however, the case could by no means be described as weak. Indeed, as much of the offending occurred in the presence of one or more of the children, there may end up being substantial support for the account of the complainant. In addition, there are photographs and other evidence confirming bruising and other injuries sustained by the complainant. I think that the case against the applicant can be realistically considered to be quite strong.[12]
[11]Digitally recorded evidence in chief (see ss 387C to 387G of the Criminal Procedure Act 2009).
[12]Reasons [55].
Next, the judge noted that the appellant’s criminal history was ‘brief’. He said, however, that it was significant that the appellant had been found guilty of assaulting his wife in the recent past; and that it was of note that the appellant was on an adjourned bond for that assault at the time of the offending now alleged against him.[13] The judge also said that it was ‘highly relevant’ that the appellant was subject to a family violence intervention order at the time of the alleged offending — noting that this had not been sufficient to control or moderate the appellant’s behaviour.[14]
[13]Ibid [56].
[14]Ibid [57].
In relation to the appellant’s personal circumstances, the judge said:
There is no doubt that many aspects of the personal circumstances of the applicant are much to his credit. He has a supportive family behind him, and is the operator of a transport company which, in his absence, is struggling to stay afloat. It would clearly be a very regrettable thing were that company to go into liquidation. I am confident that the family of the applicant will do its best to avoid that outcome, but I accept that their assistance cannot last indefinitely.
One aspect of the personal circumstances of the applicant is his long-term drug use which has obviously been a serious problem for him and would no doubt have had a substantial input into his alleged offending. I am conscious of the existence of the CISP report which holds out hope of treatment. As things stand at the moment, however, the applicant’s drug addiction is an unresolved concern which would increase the risk of his failing to comply with conditions of bail.[15]
[15]Ibid [58]–[59].
The judge then recorded the appellant’s wife’s attitude to bail being granted, noting that she was afraid of the appellant and did not want him released on bail.[16]
[16]Ibid [60].
The judge then turned to the issues of the length of time the appellant would be likely to be in custody were bail refused and the likely sentence if there were findings of guilt in relation to the charges laid against him. The judge said:
As to the length of time the applicant would be likely to be in custody were bail refused, it is difficult to assess. If I act upon the submission of Mr Sheales that I should consider that the matters would not be resolved summarily until about January 2020, that would involve a significant period of additional custody before the charges are finalised. At this time at least, however, the delay is not of the order frequently contemplated by this Court where a trial on indictment is the inevitable future prospect.
As for the likely sentence to be imposed should the applicant be found guilty of the offences he faces, that would depend on a number of matters, including the sentencing facts, the jurisdiction in which sentence was to be imposed, and whether the applicant had pleaded guilty or not guilty. I do not accept the submission of Mr Sheales in this regard that a CCO alone or in conjunction with a term of imprisonment of one year would be the worst possible outcome for the applicant. In my view, the seriousness of the offences alleged would speak strongly against that contention. If the applicant is found guilty of the charges he faces, which include charges of reckless conduct endangering life and recklessly causing serious injury in respect of an event in which it is alleged the applicant fractured the hyoid bone of the complainant by applying strong force to her neck, it is apparent that he might receive a term of imprisonment significantly exceeding that which could be imposed in conjunction with a CCO.[17]
[17]Ibid [61]–[62].
The judge then concluded his analysis of the question of whether a compelling reason had been shown that would justify a grant of bail by saying that, when he considered the combination of all of the circumstances of the case, he was not satisfied that there was a compelling reason justifying a grant of bail to the appellant.[18]
[18]Ibid [63].
Finally, the judge said that even if he had been satisfied that there was a compelling reason that would justify a grant of bail to the appellant, there were a number of matters that would have caused him ‘to have real concerns about the risks inherent in the release of [the appellant]’.[19] The judge explained his concerns as follows:
It is alleged that he repeatedly and violently assaulted his wife, with a particular disturbing focus on the application of pressure to her neck. The offending alleged took place in the context of ongoing drug use by both the applicant and the complainant. The offending took place in spite of the fact that there was an intervention order in place which was meant to prevent him from assaulting her, and in spite of the fact that he was subject to an adjourned bond for a previous assault upon her. In future, whatever may be the disincentives for contact with the complainant, the urge may be very strong in the applicant to see her and the children. The fact that he would be required by conditions of bail to live far away from his home in Miners Rest, and, when carrying out his employment, to skirt around the area where he has lived for some years, would not reduce the risks to a level where they would be acceptable.[20]
[19]Ibid [64].
[20]Ibid.
The judge concluded that, in the circumstances he identified, there would be an unacceptable risk that, if released on bail, the appellant would endanger the safety and welfare of his wife and children, or commit an offence or offences while on bail.[21]
[21]Ibid [65].
Consideration
Having been accused of a number of Schedule 2 offences within the meaning of s 3 of the Bail Act 1977 (‘the Act’),[22] the judge was required to refuse the appellant bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.[23] The appellant bore the burden of satisfying the judge as to the existence of a compelling reason.[24] In considering whether a compelling reason existed, the judge was required to take into account the ‘surrounding circumstances’ — being, amongst other things, the matters set out in s 3AAA of the Act.[25]
[22]See items 7, 18 and 19 of Schedule 2 of the Act.
[23]See s 4C(1A) of the Act.
[24]See s 4C(2) of the Act.
[25]See s 4C(3) of the Act.
Additionally, s 4E of the Act required the judge to refuse the appellant bail if he was satisfied that there was an unacceptable risk (the burden of satisfaction on this issue being on the respondent)[26] that the appellant would, if released on bail:
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
[26]See s 4E(2) of the Act.
Sections 4AA, 4C and 4D of the Act required the judge, as step one, to consider the compelling reason test; and then (if the compelling reason test was satisfied) to move, as step two, to the unacceptable risk test.[27] At each stage of the analysis (both step one and step two), the judge was required to take into account the ‘surrounding circumstances’ identified in s 3AAA of the Act.[28]
[27]See s 4C(4) of the Act.
[28]See ss 4C(3) and 4E(3)(a) of the Act.
Grounds 1, 2 and 4 take issue with the judge’s conclusion that the appellant had not established a compelling reason that would justify a grant of bail. Ground 5 takes issue with the judge’s conclusion that the respondent had established that there would be an unacceptable risk that, if released on bail, the appellant would endanger the safety and welfare of the complainant and her children, or commit an offence or offences while on bail.
In argument, counsel for the appellant accepted that in order for the appellant to succeed on appeal he had to succeed on one of grounds 1, 2 and 4, and also on ground 5. Counsel also accepted that the appeal was governed by the principles in House v The King.[29]
[29](1936) 55 CLR 499, 505 (‘House’). See further, Robinson v The Queen (2015) 47 VR 226, 253 [86].
Compelling reason: grounds 1, 2 and 4
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’.[30]
[30]Re Alsulayhim [2018] VSC 570 [27]–[28] (Beach JA). See also, Re Ceylan [2018] VSC 361 (Beach JA).
Counsel for the appellant commenced his oral submissions by asserting that the judge erred in not properly giving separate consideration to, or ‘differentiating’, the issues of compelling reason and unacceptable risk. While this submission was not tied to any of his grounds of appeal, we should say at the outset that the submission was not well founded. It is plain from his Honour’s reasons that his Honour gave separate consideration to the compelling reason test,[31] before dealing with the issue of unacceptable risk.[32]
[31]Reasons [50]–[63].
[32]Ibid [64]–[65].
Further, and to the extent that it was suggested in argument by the appellant that the judge failed to take into account the surrounding circumstances at both the compelling reasons stage and the unacceptable risk stage, we reject that submission. In his reasons for judgment, the judge specifically identified the statutory provisions requiring him to take the surrounding circumstances into account at each stage of the analysis.[33] Moreover, in holding that a compelling reason was not established by the appellant, and that the respondent had established the existence of an unacceptable risk, the judge specifically made reference to the relevant surrounding circumstances that he took into account in coming to each of his conclusions.
[33]Ibid [21], [22].
Turning now to the terms of the appellant’s specific grounds of appeal, ground 1 was directed to the fifth type of error identified in House: namely, a decision which, on the facts, is ‘unreasonable or plainly unjust’.[34] This complaint must be rejected.
[34]House (1936) 55 CLR 499, 505.
The judge was required to synthesise a myriad of competing considerations. Matters telling in favour of the establishment of a compelling reason included the evidence of the possible or likely loss of the appellant’s business, the appellant’s supportive personal circumstances and the appellant’s limited criminal history. Matters telling against the appellant on the issue of compelling reason, however, included the seriousness of some of the offending alleged, the fact that the alleged offending occurred while the appellant was the subject of a family violence intervention order and the fact that the alleged offending occurred while the appellant was the subject of a good behaviour bond in respect of an earlier assault committed on the complainant.
While reasonable minds might differ as to whether a synthesis of all of the relevant circumstances established the existence of a compelling reason justifying a grant of bail, this is not a case where the decision made at first instance was, on the facts, unreasonable or plainly unjust. It was open to the judge to conclude that the appellant had not established a compelling reason (that is, a reason that compelled, in the sense of being difficult to resist) that justified a grant of bail. Ground 1 must be rejected.
In ground 2, the appellant complained that the judge failed to take into account the length of time he was likely to spend in custody if bail was refused. The short answer to this ground is that the judge expressly referred to the length of time the appellant would be likely to be in custody in the event bail was refused. The judge addressed the issue at Reasons [61], saying:
·the length of time the appellant would be likely to spend in custody were bail to be refused was ‘difficult to assess’;
·if he (the judge) acted upon the submission of the appellant’s counsel then ‘the matters would not be resolved summarily until about January 2020’;
·detention in custody until January 2020 ‘would involve a significant period of additional custody before the charges are finalised’; and
·at the time of the hearing before the judge, the delay was ‘not of the order frequently contemplated by [the] Court where a trial on indictment is the inevitable future prospect’.
Whatever else might be said about Reasons [61], it is simply not correct to say that the judge did not take into account the length of time the appellant was likely to spend in custody if bail were to be refused. Ground 2 must be rejected.
By its terms, ground 4 contains a complaint that the judge erred in rejecting the appellant’s submission ‘as to the likely sentence that was open to be lawfully imposed upon [him] in the event of him being found guilty of the more serious charges laid against him’. In advancing submissions under this ground, counsel for the appellant concentrated on what the judge said at Reasons [62]. The appellant’s arguments under ground 4 were not confined to the complaint identified in the ground. His contentions under ground 4 included the following:
(1) The judge was wrong to say that the likely sentence would depend upon the jurisdiction in which sentence was to be imposed. The appellant contended that whatever the proper sentence to be imposed in this case was, there should be no difference in sentence merely because the case might be heard in the Magistrates’ Court or the County Court. In support of this contention, the appellant noted that the Magistrates’ Court has jurisdiction to impose sentences of up to two years’ imprisonment on any one offence and a total effective sentence of five years’ imprisonment.
(2) The judge was wrong to record, as the appellant’s submission, ‘that a CCO alone or in conjunction with a term of imprisonment of one year would be the worst possible outcome’.
(3) The judge was wrong, in any event, to refer to the ‘worst possible outcome’. That, counsel submitted, had not been the submission for the appellant. In any event, the matter which the judge was required to consider as part of the surrounding circumstances under s 3AAA(l) was ‘the likely sentence to be imposed’ if the appellant were to be found guilty.
(4) The judge was wrong to speculate that the appellant might receive a term of imprisonment ‘significantly exceeding that which could be imposed in conjunction with a CCO’, 12 months,[35] in circumstances where the respondent had accepted in argument before the judge that a combined term of imprisonment with a CCO was ‘in the ball park’.
[35]See s 44(1) of the Sentencing Act 1991.
At one stage in argument, counsel for the appellant appeared to suggest that there was an internal inconsistency between the way the judge treated the issues of likely length of time in custody and likely sentence to be imposed.[36] As we apprehended the submission, it was that the judge erred in considering the issue of likely time in custody by reference to the matter proceeding in the Magistrates’ Court, but then considered the issue of likely sentence by reference to the matter proceeding in the County Court. Asked by each member of the bench, however, if this was in fact the appellant’s submission, counsel for the appellant eschewed reliance upon any such argument.
[36]Reasons [61], [62].
While the judge’s reference to ‘jurisdiction’ in Reasons [62] may not have been entirely appropriate in the facts of the present case (including the fact that, to date, the prosecution has been prepared to permit the appellant’s charges to proceed in the summary stream of the Magistrates’ Court), we are not persuaded that this reference, or any of the appellant’s other complaints made under this ground, constitute error which might justify this Court interfering with the judge’s decision.
First, the judge was correct to say that the likely sentence to be imposed on the appellant, should he be found guilty of the charges laid against him, will depend on a number of matters, including whether the appellant pleads guilty or not guilty.
Secondly, we see no error in the judge’s summary of the appellant’s submission that the worst possible outcome for the appellant would be a CCO alone or a CCO combined with a term of imprisonment. While the appellant’s submissions to the judge were properly directed at ’likely’ sentencing outcomes, there can be little doubt that, as part of his submissions to the judge, the appellant also contended that the likely sentencing disposition would almost certainly be less than a CCO coupled with 12 months’ imprisonment. Thus a characterisation of this submission by the appellant as ‘worst case’ was fair.
Thirdly, while the judge referred at Reasons [62] to the ‘worst possible outcome’, it is plain from the commencement of that paragraph that the judge was considering (as s 3AAA(1)(l) of the Act required) the ‘likely sentence to be imposed’. Indeed, these were the precise words used by the judge at the commencement of this paragraph of his reasons.
Fourthly, we do not accept that it was wrong for the judge to refer to the possibility of a term of imprisonment that exceeded the maximum term that could be imposed in conjunction with a CCO. The judge (on more limited material than is now apparently available) described the allegations that have been made against the appellant as ‘exceedingly serious’.[37] There is no appeal against that part of his Honour’s reasoning.[38] Further, the appellant’s contention that the respondent conceded before the judge that a combined term of imprisonment with a CCO was ‘in the ball park’ is not entirely accurate. Counsel for the respondent, in the hearing before the judge, when asked whether he had submission that the appellant could do no worse than a CCO with a prison component limited to 12 months, said:
[I]t depends when and how the matter resolves and what the resolution looks like. But certainly, … it’s almost inevitable that a term of imprisonment would result, it is certainly potentially on the cards that a sentencing court could, subject to what the resolution looks like, be attracted to a combination of a term of imprisonment with a CCO and, having regard to his relative lack of priors. So I certainly would not be submitting that that’s not in the ball park. Again, the caveat being of course, what the resolution looks like,
[37]Reasons [51].
[38]A ground of appeal contending that the judge erred in concluding that the Crown case against the appellant was ‘quite strong’ (ground 3) was, as we have already noted, abandoned by the appellant during oral argument.
The issue before the judge, about the likely sentence to be imposed on the appellant should he be found guilty of the charges he faces, was an evaluative one upon which reasonable minds might differ. That issue was determined by the judge without the benefit of what is now submitted to be a significant body of evidence that was not available for evaluation at the time of the hearing before the judge. Whatever evaluation might now be made on new (and perhaps better) material, we see no error in the judge’s evaluation on the material that was presented to him — and certainly no error of the kind necessary to satisfy the principles identified in House. Ground 4 must be rejected.
Unacceptable risk: ground 5
What we have said in respect of the issue of compelling reason is sufficient to dispose of, and dismiss, this appeal. For completeness, however, we should say that we see no House type error in the judge’s analysis of the issue of unacceptable risk.
Again, this was an evaluative judgment upon which reasonable minds might differ. Moreover, the judge’s view of the surrounding circumstances which led to his conclusion on the issue of compelling risk was capable of also leading him to an unfavourable conclusion to the appellant on the issue of unacceptable risk (notwithstanding that the burden of persuasion on the compelling reason test was on the appellant, whereas on the unacceptable risk test, it was on the respondent).
For these reasons, like grounds 1, 2 and 4, ground 5 must be rejected.
Conclusion
For the reasons given above, the appeal must be dismissed.
We should say, however, during the course of argument, there appeared to us to be some matters in this case which suggest, with the effluxion of time since the application was heard by the judge, there might be a basis for the whole question of bail to be reconsidered, particularly if sufficiently strict conditions[39] can be designed to ameliorate the risks identified by the judge[40] to a point where such risks were no longer unacceptable.[41] Of course, we should not be taken as expressing any concluded view about this matter.
[39]In argument, counsel for the appellant suggested a condition requiring the respondent to stay outside a radius of 30 kilometres of Ballarat.
[40]Reasons [65].
[41]See s 4E(3)(b) of the Act.
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