Sowerby v State of Tasmania

[2024] TASFC 7

[2024] TASFC 7

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Sowerby v State of Tasmania [2024] TASFC 7
PARTIES:	SOWERBY, Stewart Colin
v
STATE OF TASMANIA
FILE NO:	2972/2024
DELIVERED ON:	14 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	13 November 2024
JUDGMENT OF:	Pearce J, Porter AJ
CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Bail – Before trial – Other cases – Family violence offences – Statute prescribing prerequisite to granting of bail.

Family Violence Act 2004 (Tas), s 12.

Aust Dig Criminal Law [2991]

REPRESENTATION:

Counsel:

Appellant:	K Ellis
Respondent:	L Ogden

Solicitors:

Appellant:	Tasmania Legal Aid
Respondent:	Director of Public Prosecutions

Judgment Number:	[2024] TASFC 7
Number of paragraphs:	19

Serial No 7/2024

File No 2972/2024

STEWART COLIN SOWERBY v STATE OF TASMANIA

REASONS FOR JUDGMENT	FULL COURT PEARCE J PORTER AJ 14 November 2024
Order of the Court:
Appeal allowed.

Serial No

File No 2972/2024

STEWART COLIN SOWERBY v STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT
PEARCE J
PORTER AJ
14 November 2024

1             This was an appeal against an order made by Marshall AJ on 30 September 2024 refusing an application for bail made by the appellant under the Bail Act 1994, s 23. The appeal to this Court was brought pursuant to s 21(3)(b)(ii). In accordance with the Supreme Court Civil Procedure Act 1932, s 14(a), the jurisdiction of the Court was exercised by two judges. The appeal was by way of rehearing: Bail Act, s 21C. At the conclusion of oral submissions the Court allowed the appeal, ordered that the appellant be admitted to bail with conditions and indicated that reasons would be published later. These are those reasons.

2             The appellant was charged with assault contrary to the Criminal Code, s 184. It was alleged that on 11 March 2024 he assaulted his former partner, Cayla Williams-Jacques. The appellant and Ms Williams-Jacques had been in a significant relationship. At the time of the alleged assault he was subject to a police family violence order under the Family Violence Act, s 14, made almost five months earlier on 30 October 2023. The order included conditions that he not threaten, abuse or assault Ms Williams-Jacques, approach her or go to or near her home. This Court was informed that the police family violence order was made as a result of circumstances of conflict in the relationship. The appellant lived in Campania but Ms Williams-Jacques lived in Glenorchy. On one occasion she was at his home and they argued. She attempted to leave but he did not want her to and kept her phone. On another occasion they argued while the appellant was driving her to her home. She claimed that he grabbed her and pulled her towards him. She escaped from the vehicle and ran off. She notified the police the next day and the order was made. No charges arose from either incident.

3             As to the circumstances leading up to the assault alleged to have been committed on 11 March 2024, the prosecution case was outlined in these terms. By that time the appellant and Ms Williams- Jacques had been in a relationship for about a year. At about 9 pm on 10 March 2024 he went to her home in Glenorchy in breach of the police family violence order. In the course of the evening they argued. At one point she called "000" but hung up. At around 6.30 am the following morning they left together in his vehicle to buy cigarettes. He was driving. During the journey, in the course of an argument, she reached across him and grabbed an item belonging to him. He struck her face and pushed her away. She attempted to remove herself from the vehicle. He grabbed her but, despite his attempts to prevent her from doing so, she managed to escape. Then, as she walked along the footpath he drove the car directly at her and on to the footpath, stopping only just before he made contact. She was frightened that she would be run over. On the following day, 12 March 2024, she went to the police and made a statement. The appellant's threat to strike her with the car is the subject of the charge of assault under the Code. The pushing, hitting and grabbing in the car is the subject of a summary charge of common assault. Both assaults, if proved, would breach the family violence order, and, of course, it was an offence to have been in her presence in contravention of the order. The summary charges have been adjourned to a date to be fixed.

4             The appellant was arrested on 21 March 2024. He was remanded in custody until granted bail by a magistrate on 27 March 2024 on conditions which included that he live at his father's address in Campania, that he not approach Ms Williams-Jacques or go to or near her home in Glenorchy, and that his father, Kevin Sowerby, enter into a promissory recognizance to forfeit the sum of $5,000 if the appellant failed to comply with a condition of bail. The appellant appeared in the Magistrates

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Court in accordance with his bail on 23 April, 7 May, 13 May, 7 June and 21 June 2024 when he was committed to the Supreme Court on bail to appear on 3 September 2024. On 13 May 2024 the appellant's bail address was varied to a different address in Campania, the home of Paul Churchill. Kevin Sowerby remained a surety following the change although the appellant was no longer living with him.

5             On 3 September 2024 the appellant failed to appear in the Supreme Court. On application being made, his father was released from the recognizance. Marshall AJ issued a warrant for the appellant's arrest. He was arrested on 24 September 2024 at his bail address in Campania. On the following day he appeared in the Supreme Court. His bail was revoked and he was remanded in custody. An oral application for bail was made but adjourned.

6             The appellant's application for bail came before Marshall AJ on 30 September 2024. The application sought reinstatement of the previous bail conditions, which included that he live with Paul Churchill in Campania, but that Mr Churchill enter into a recognizance in equivalent terms in place of the appellant's father. The application for bail was refused. The appeal to this Court was lodged on 21 October 2024.

7             Because Ms Williams-Jacques and the appellant had been in a significant relationship, the indictable assault with which the appellant was charged is a family violence offence within the meaning of that term in the Family Violence Act 2004 ("the Act"). Thus, s 12 of the Act has application, and the respondent was not to be granted bail unless this Court was satisfied that his release on bail would not be likely to adversely affect the safety, wellbeing and interests of Ms Williams-Jacques. The Act creates a presumption against bail: Re S (2005) 157 A Crim R 451. The onus was on the respondent to displace the presumption: Olsen v State of Tasmania [2005] TASSC 40. A detailed discussion of the grant of bail in family violence matters may be found in Director of Public Prosecutions (Acting) v JCN [2015] TASFC 13. We would accept the submission of counsel for the respondent that it was not to the point that the appellant had previously been granted bail. It was for the appellant to satisfy this Court, on the material presented on the hearing of the appeal, that the grant of bail should be made.

8             The appellant is aged 33. His record is mostly for driving offences which include, however, instances of driving with alcohol in excess of the prescribed concentration or driving with a drug in his oral fluid or blood, driving while suspended, driving while disqualified and evading police. There is only one prior conviction for assault, a common assault in 2010 for which he was fined. In 2017 a charge of aiding the commission of a breach of a family violence order was dismissed under the Sentencing Act, s 7H.

9            It is alleged that the appellant committed other offences before the alleged assault on 11 March 2024, some of which are family violence offences and some of which are not:

• driving with an illicit drug in blood on 19 October 2023;

• breaching the police family violence order on 12 January 2024 by going to Ms Williams-Jacques home and being within 50 metres of her;

• breaching the police family violence order on 28 January 2024 by being within 50 metres of Ms Williams-Jacques;

• stealing an electric bike and a mountain bike on 30 January 2024; and

• attempted stealing from Kmart, possessing amphetamine and resisting a police officer on 1 March 2024. On that day, he was arrested and bailed by the police.

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10           A breach of a condition of bail to which the appellant was already subject is alleged to have occurred on 18 March 2024, three days prior to his arrest on 21 March 2024, when he failed to report to the police in Bridgewater.

11   The only offending alleged against him since his release on bail on 27 March 2024 is that he:

• drove while suspended and with THC present in his oral fluid on 10 June 2024;

• he was unlawfully in possession of property on 12 June 2024;

• driving without a licence on 8 August 2024.

12           Counsel for the respondent drew one other matter to this Court's attention. On 7 September 2024, only a few days after the appellant failed to appear, a family violence order was made to protect a different former partner and three children of their relationship. The order arose from an allegation of assault by punching and kicking in August 2024. No other details of that allegation were provided and no charges have yet arisen from it. Counsel also submitted that the fact that the appellant's father withdrew from his surety was suggestive of some other underlying problem with the appellant's behaviour. It was submitted by the appellant's counsel that the appellant failed to appear on 3 September 2024 partly because of distress and disruption arising at the time from the involvement of child safety services in the care of his children. That seems to coincide with the making of the further family violence order on 7 September 2024. It was also submitted that there was some misunderstanding about in which court the appellant was to appear.

13 It follows from the foregoing that the principal matter which brought the appellant back into custody was not a family violence offence, or any other offence except his failure to appear in the Supreme Court on the day on which he was remanded to appear. Leaving the operation of s 12 aside for a moment, the principal consideration when granting bail is ordinarily whether, if bail is granted, the person will appear in court to answer the charge. The appellant did not seem to us to present a flight risk. When he failed to appear he was found and arrested at the home in which he was bailed to reside. He had appeared in the Court of Petty Sessions in answer to his bail on five occasions prior to his committal. Another factor often referred to is the possibility that, if released, a person will present an unreasonable risk of committing further offences, thereby making a grant of bail contrary to the public interest. The offences alleged to have been committed by the appellant in June and August were not such as to justify his remand in custody. We were not considering whether he should be granted bail for those offences, which were to be proceeded with on summons. In this case the risk of re-offending is largely subsumed by a consideration of the operation of the Family Violence Act, s 12. There was no new matter which suggested a material change to the level of risk posed by the appellant, if on bail, to the safety, wellbeing and interests of Ms Williams-Jacques. There had been no further breach of the police family violence order in the six months or so which had elapsed since the date of the alleged assaults. Apart from an immaterial chance encounter, there had been no contact between them during that period. On 11 October 2024, after bail was refused, an interim family violence order was made by a magistrate in terms substantially equivalent to the police family violence order it replaced, including an order prohibiting any contact between the appellant and Ms Williams-Jacques. On bail the appellant will remain subject to that order. According to counsel for the respondent, Ms Williams-Jacques had not expressed any ongoing fear of the appellant or opposition to the grant of bail. She regarded their relationship as at an end. Of course, as was pointed out in Director of Public Prosecutions (Acting) v JCN (above) at [20], independently of the attitude of an affected person, the Court has a duty to consider the interests of persons who may be affected by family violence and, if necessary, act to protect them.

14 The Act, s 12(2)(e), permits the Court to have regard to any matters it considers relevant, but regard must be had to three particular matters:

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• s 12(2)(a) – any available risk screening or rehabilitation program assessment. The Court was not made aware of any rehabilitation program assessment. A risk screening assessment was undertaken by a police officer after having spoken to the complainant on 14 March 2024. It gave a score of 17 but did not explain what that meant. No fresh assessment was undertaken. We gave the assessment little weight.

• s 12(2)(b) – the appellant's demeanour. The appellant was present during the hearing of the appeal but there was nothing about his demeanour which strengthened or weakened the application for bail.

• s 12(2)(d) – the availability of suitable accommodation for the person and any affected person or affected child. Here there was no affected child. The complainant had suitable accommodation in Glenorchy. A bail condition that the appellant live at Campania created a significant geographical separation between them. His driver licence was suspended. Recently he had driven without a licence on two separate occasions. He may have access to a vehicle. As a result, if he were determined to travel to the complainant's home in breach of the order he could still do so with relative ease. There was no order in place which required him to submit to electronic monitoring and monitoring his movements and conduct would therefore be difficult. We took that into account.

15 The appellant intends to defend the indictable assault charge. He is entitled to the presumption of innocence although in assessing the risk he may pose to Ms Williams-Jacques it was proper to take into account the possibility that the allegation may be true. There is likely to be a very substantial delay before the charge is brought to trial. Every instance of violence committed within a relationship or former relationship is to be regarded seriously. However, on the limited information available to this Court, the objective gravity of the crime alleged against the appellant and the absence of a serious record for violent offending meant that there was a real risk of injustice if he were remanded in custody, even if found guilty. Assuming conviction, it is reasonably possible that without bail he would remain in custody awaiting trial for a period well beyond any sentence of imprisonment reasonably proportionate to his crimes. Sometimes that is not an answer to the matters which s 12 requires be addressed. The provision, and the presumption against bail it contains, must be given effect according to its terms. There are very frequently occasions where protection of the safety, wellbeing and interests of an affected person or affected child requires remand of an accused person in custody for a period, sometimes a very lengthy period, even at the risk of injustice. However, in our view, this was not such a case.

16           We concluded that, with the imposition of appropriate bail conditions, release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of Ms Williams- Jacques. Whilst on bail between 27 March 2024 and 24 September 2024 the appellant did not breach the terms of his bail or the police family violence order. Nor had he done any other act which suggested a substantial risk to the complainant. The appellant spent six days in custody following his arrest on 21 March 2024 and has been in custody since his arrest on 24 September 2024. Having spent more than seven weeks in custody he must be acutely aware of the likely consequences of future breach and has a strong incentive to comply. Mr Churchill impressed us as a person who will, as a surety, act conscientiously. He has the means to meet the recognizance if called upon and will be in a good position to monitor and supervise the appellant. The appellant will have an additional incentive to comply by reason of his awareness that any breach may mean that Mr Churchill, through no fault of his own, may forfeit a substantial sum.

17           For those reasons, we ordered that there be a grant of bail to the appellant on condition that Mr Churchill execute a promissory recognizance in the usual form in the sum of $5,000, that during the period of remand the appellant live with Mr Churchill at his address in Campania, and be present at that address between 9 pm and 6 am each day, that he comply with the terms of the interim family

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violence order made 11 October 2024 and any order made in substitution for that order, that he comply with any other police family violence order, interim family violence or family violence order made under the Family Violence Act or interim restraint order or restraint order made under the Justices Act, that the appellant not enter the City of Glenorchy and appear next on the remand day in the first sittings of 2025.

18 As will be apparent from these reasons, because this Court is rehearing the application the appellant need not demonstrate error on the part of the learned primary judge. It is not necessary to consider the reasons his Honour gave for refusing the application. However it is appropriate to do so in one respect for the guidance of judges hearing future applications subject to s 12. In the course of the hearing the learned primary judge asked counsel for the applicant "what's the compelling circumstance or the carefully structured plan to secure the safety, wellbeing and interests of the complainant?" Then, after referring to some circumstances relevant to the application, his Honour concluded:

"On balance, I'm not satisfied that there are compelling circumstances or a carefully structured plan to secure the safety, wellbeing and interest of the affected person, so bail is refused."

19 It is not clear where the reference to "compelling circumstances" or "a carefully structured plan" came from or precisely what his Honour meant by use of those terms. The terms do not derive from the legislation. If all his Honour was intending to convey was that the appellant had not satisfied him that his release on bail would not be likely to adversely affect the safety, wellbeing and interests of Ms Williams-Jacques, then no error is disclosed. However his Honour's specific question and his concluding statement referring to those particular terms suggest that he may have imputed an additional requirement for either "compelling circumstances" or "a carefully structured plan" or both to be demonstrated before a grant of bail was to be made. To have done so would add a gloss on the language of the legislation not justified by its terms. The essential question is whether, in all of the circumstances and in light of bail conditions that may be available, the required state of satisfaction is reached and the presumption displaced. It may be that a "compelling circumstance" or a "carefully structured plan" may assist a court to be so satisfied, but neither is required by the terms of the Act.