The Queen v Augusto Tamayo-del Solar
[2012] ACTSC 198
•19 December 2012
THE QUEEN v AUGUSTO TAMAYO-DEL SOLAR
[2012] ACTSC 198 (19 December 2012)
CRIMINAL LAW – application for bail – child sex offences – where proposed residential address near a school – where applicant had not undergone any treatment in custody – where no evidence as to community based treatment regime – risk of re-offending unacceptably high – where applicant may be required to spend further time in custody under sentence – where applicant to be sentenced in the near future – application adjourned.
Bail Act 1992 (ACT), s 22
Crimes Act 1900 (ACT), ss 61(1), 64(1), 65,
Crimes (Sentencing) Act 2005 (ACT), pt 4.2
Criminal Code Act 1995 (Cth), s 474.26(1)
Re an application for bail by Breen (2009) 172 ACTR 21
Dunstan v Director of Public Prosecutions (1999) 92 FCR 168
R v Clarke II (2001) 118 A Crim R 585
R v Cooper [2012] ACTCA 9
EX TEMPORE JUDGMENT
No. SCC 150 of 2010
No. SCC 151 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 December 2012
IN THE SUPREME COURT OF THE ) No. SCC 150 of 2010
) No. SCC 151 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
AUGUSTO TAMAYO-DEL SOLAR
ORDER
Judge: Refshauge J
Date: 19 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The application for bail be adjourned to 15 January 2013
Mr Tamayo-del Solar be remanded in custody.
On 20 and 21 June 2011, the applicant, Augusto Tamayo-del Solar, was tried by judge alone for an offence of committing an act of indecency on a young girl under the age of 16 years on 22 February 2009 in the applicant’s car.
At the end of the trial, conducted before me, I reserved my decision and, regrettably, due to the pressure of Court business, have not been able to deliver a decision to date.
On 7 and 17 December 2010, Mr Tamayo-del Solar had also pleaded guilty to two other counts of committing an act of indecency on a young person, and one count of using a carriage service to procure a person under the age of 16 years. Earlier in 2010, he pleaded guilty in the Magistrates Court to further charges of possessing child pornography and using a child under 12 to produce child pornography. Those charges were committed to this Court for sentence and he maintained his plea before me.
Committing an act of indecency on a person under the age of 10 years is an offence under s 61(1) of the Crimes Act 1900 (ACT), attracting a maximum penalty of 12 years imprisonment. Possessing child pornography is an offence against s 65 of the Crimes Act and, at the time of the offence, attracted a maximum penalty of 500 penalty units, that is a fine of $55 000, or five years imprisonment or both. Using a child under 12 for the production of child pornography is an offence under
s 64(1) of the Crimes Act and attracts a maximum penalty of 1 500 penalty units, that is a fine of $165 000, or 15 years imprisonment or both. Using a carriage service to procure a person under 16 to engage in sexual activity is an offence under s 474.26(1) of the Criminal Code Act 1995 (Cth) and attracts a maximum penalty of 15 years imprisonment.
Mr Tamayo-del Solar is yet to be sentenced for the offences to which he has pleaded guilty. That will be done when the verdict in the trial is delivered, to which I will refer below.
THE APPLICATION
Mr Tamayo-del Solar has applied for the bail. In the affidavit made by his lawyer in support of the application, it is deposed that there are no charges pending in the Magistrates Court against him and that, apart from the pleas of guilty, he has no prior criminal history. He has not previously applied for bail.
It appears that Mr Tamayo-del Solar was initially arrested on 15 December 2009. He was bailed from the Magistrates Court on 16 December 2009, before being re-arrested later that same day. He has, it appears, remained in custody since then.
Counsel for Mr Tamayo-del Solar, Ms T Warwick, proposed that bail be granted on terms that:
(a) he reside at a specified Sydney address;
(b) he report to a police station once a week;
(c) he accept supervision; and
(d) he not approach the complainants.
Ms M Jones, who appeared for the respondent, called the police officer who had originally investigated the charges to give evidence. She gave evidence as to some of the facts comprising the charges. I do not need to rehearse them, save to say that the offences outlined were serious examples of the particular offences, in particular the offence of using a carriage service to procure a person under 16 to engage in sexual activity.
Ms Jones noted, however, that Mr Tamayo-del Solar had cooperated with the police investigation to a degree.
She submitted that there was, however, a commonality in how Mr Tamayo-del Solar came to have contact with the complainants. He befriended each of the fathers of the girls — one a neighbour, the other a member of a common social group. These friendships led to Mr Tamayo-Del-Solar gaining permission to take the girls on outings by himself, when the offences were committed.
The police officer also stated in her evidence that the specified residential address in Sydney was opposite a school, and noted that the school crossing nearly aligns with the driveway of the residence. She was unable, in the time available, to ascertain whether the school conducted a school holiday program. There was no evidence before me about that issue. She was also unable to ascertain who lived in the residence or who lived next door and, in particular, whether there were any children living in either of those places. Under cross-examination, she accepted that
Mr Tamayo-Del Solar’s brother lived in the proposed residence and that he lived alone.
She stated that Mr Tamayo-del Solar had been unable to access counselling whilst in custody and that until sentenced he was not eligible for the ACT Corrective Services Adult Sex Offenders Program. She expressed concerns that, were he to be granted bail, he would be likely to reoffend.
SUBMISSIONS ON THE APPLICATION
Ms Warwick submitted that by applying the criteria for bail under s 22 of the Bail Act 1992 (ACT), Mr Tamayo-Del Solar should be admitted to bail. In summary, these criteria are:
(a) the likelihood of Mr Tamayo-del Solar appearing, in this case for sentence;
(b) whether he is likely to commit further offences, harass or endanger the safety or welfare of anyone or interfere with evidence or witnesses; and
(c) his interests.
As to the first criterion, Ms Warwick submitted that, with no previous criminal history, Mr Tamayo-del Solar was not a flight risk. She submitted that while, ideally, there should be a proper treatment plan for Mr Tamayo-del Solar, he had now spent three years in custody which was the equivalent to a significant deterrent sentence which I should accept would have that effect. She submitted that people do learn from their mistakes and from the deprivation of their liberty and that I should rely on his incarceration to accept that he would not reoffend. She also submitted that, if released on bail, his attendance at and participation in treatment could be made a condition of his bail.
Ms Warwick also handed up a table of sentences for the relevant offences which had been imposed in this Territory and some elsewhere. Unsurprisingly, it showed a range of sentences because, of course, the circumstances in each case would be quite different. It showed, though, that for committing an act of indecency, sentencing in the range of six months to three years and six months had been imposed. For possession of child pornography sentences of six months to one year and nine months imprisonment had been imposed. For the offence of using a child to make pornography, sentences from six months to two years and two months imprisonment had been imposed. There was one sentence of using a carriage service to procure a young person to engage in sexual activity, for which a sentence of 12 months imprisonment was imposed. As to the similar offence of using a carriage service to groom a young person, for which the maximum penalty was little less, namely,
12 years imprisonment, sentences from one year and six months to three years and six months had been imposed.
It is clear, given that there would have to be a degree of accumulation in the sentences to be imposed and having regard to the number of sentences and the occasions involved, that Mr Tamayo-del Solar would be likely to be sentenced to a lengthy period of imprisonment. It could not be said that a three year non-parole period would necessarily be too long.
Ms Jones submitted that these were really matters relating to sentence and that the application should be adjourned to the sentencing proceedings. This was particularly so as there was no sex offender assessment to ascertain whether Mr Tamayo-del Solar was a continuing risk to the community. To release him without such an assessment and without treatment posed an unacceptable risk to the community. She also submitted that the offence of using a carriage service to procure a young girl to engage in sexual activity was a serious version of the offence and would receive a condign prison sentence. She further submitted that the absence of a criminal record was of less consideration in such offences as they were frequently committed by persons with good character which, indeed, was a factor that often facilitated such activities: see R v Cooper [2012] ACTCA 9.
Ms Warwick submitted that a refusal of bail should not be used as preventative detention. She referred to my decision in Re an application for bail byBreen (2009)
172 ACTR 21 and my adoption of what Gyles J had said in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at 184 in this regard, especially that, because of the characteristic of bail, a finding that there is a likelihood of reoffending should not be based on suspicion or speculation.
Ms Warwick also drew my attention to R v Clarke II (2001) 118 A Crim R 585, although I note that after the Full Court granted Mr Clarke bail he did flee the jurisdiction and was not re-arrested for some 10 years.
CONSIDERATION
It is clear that Mr Tamayo-del Solar should be sentenced as soon as can reasonably and fairly be done. In order to facilitate that, I have already ordered a Pre-Sentence Report under pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT), and an assessment for the Adult Sex Offender Program.
I am very troubled at the location of the residence where it is proposed that Mr Tamayo-del Solar is to live while on bail. There is some value in him residing in Sydney, but it is entirely undesirable that he reside so close to a school unless it can be shown unequivocally that there are no holiday programs or other activities involving young girls at the school during the period where he will be residing there.
It also seems to me that while further treatment, if necessary considering the period of Mr Tamayo-del Solar’s period of incarceration, can be provided in the community, that would meet much of the concern. I do not, however, have any details of the desirability or availability of such treatment or his possible participation in it. That will, of course, come from the assessment I have ordered.
I am also aware of the need to take into account s 22(2) of the Bail Act, which seems to me to apply so far as the offences for which Mr Tamayo-del Solar has pleaded guilty.
In my view, the risk is currently unacceptably high. Without more information, I am not convinced that a proper exercise of the sentencing discretion will not require him to serve more time in custody but I am, of course, making no finding on that.
CONCLUSION
In order to balance these considerations, I am of the opinion that bail should not be granted today but I will not dismiss the application. I will adjourn it to 15 January 2013 when I will hand down my decision on the trial, and it may be that sentencing can then take place or shortly after that date.
If it cannot then take place, I will further consider this bail application when it is hoped that I will have at least the assessment report for the Adult Sex Offender Program and other material on which a proper assessment can be made.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013
Counsel for the Crown: Ms M Jones
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Ms T Warwick
Solicitor for the accused: S & T Lawyers
Date of hearing: 11, 13 December 2012
Date of judgment: 19 December 2012
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