The Queen v Christian
[2018] NFSC 2
•2 March 2018
SUPREME COURT OF NORFOLK ISLAND
The Queen v Christian [2018] NFSC 2
File number: SC 1 of 2018 Judge: WIGNEY J Date of judgment: 2 March 2018 Catchwords: CRIMINAL LAW – review of grant of bail pursuant to s 36 of the Bail Act 2005 (NI) – where accused committed further offences while on bail – where accused breached bail conditions – whether bail should be refused or revoked – consideration of criteria in s 25 of the Bail Act 2005 (NI) – bail granted or continued subject to conditions
CRIMINAL LAW – sexual intercourse with a young person contrary to s 113(3) of the Criminal Code 2007 (NI) – supplying liquor to a minor contrary to s 66(a) of the Liquor Act 2005 (NI) – maintaining a sexual relationship with a young person pursuant to s 114 of the Criminal Code 2007 (NI)
Legislation: Bail Act 2005 (NI) ss 9, 25, 36
Criminal Code 2007 (NI) ss 113, 114
Liquor Act 2005 (NI) s 66
Sentencing Act 2007 (NI) s 119
Date of hearing: 2 March 2018 Registry: Norfolk Island Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Ms DA Holliday Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Counsel for the Respondent: Ms LD Reece Solicitor for the Respondent: McIntyres Lawyers ORDERS
SC1 of 2018 BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND: TIAAN LINLEY CHRISTIAN
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
2 MARCH 2018
THE COURT ORDERS THAT:
1.The matter be listed for trial on Norfolk Island commencing on 4 June 2018 at 10:15am.
2.The matter be listed for case management on 8 May 2018 at 9:00am (AEDT) via audio-visual link between Sydney-Brisbane-Norfolk Island.
3.The Application by the Commonwealth DPP to revoke the Defendant’s Bail is dismissed.
4.The Defendant’s bail be continued on the following conditions:
(i)To reside at [redacted for privacy reasons] and not leave that address between 7:00pm and 6:00am, and that either Trent Linley Raymond Christian, Sally Anne McLeod, David Raymond Porter or Jo-Anne Svensson-Porter be with him at all times when he is at home or away from home. The prior approval in writing of the Commonwealth Director of Public Prosecutions must be obtained before any other person is approved to supervise the accused person pursuant to these bail conditions.
(ii)Not to obtain or use a mobile phone, or use any other telephone, except as provided in condition 8.
(iii)Not to use any computer or electronic communication device except for the purposes required by a recognised course of vocational study at a TAFE college or equivalent educational institution or as provided for in condition 5, and to give his father and any State or Commonwealth Police Officer access to the computer on request.
(iv)Not to apply for a passport or any other travel document relating to international travel.
(v)To consult with Dr Kate Lemerle or a psychologist nominated by her at least once per week, and if by electronic means, the connection is to be made and disconnected by a parent or authorised person, and to authorise such psychologist to confirm to the Commonwealth Director of Public Prosecutions or Police that consultation has occurred.
(vi)To report daily between the hours of 8:00am and 4:00pm to the Officer in Charge, Bundaberg Police Station, in the company of his father or step mother unless otherwise approved by the Commonwealth Director of Public Prosecutions in order to travel to Brisbane to confer with his legal representatives.
(vii)Not to leave Bundaberg except to attend the Federal Court, or to confer with his legal representatives, in Brisbane or the Supreme Court of Norfolk Island in the company of Trent Linley Raymond Christian and/or Sally Anne McLeod.
(viii)The accused may communicate by landline telephone with his legal advisers in the presence of his father.
(ix)Not to contact or attempt to contact the complainant or any other witnesses in any way, directly or indirectly.
(x)That the accused advise the Commonwealth Director of Public Prosecutions in writing 7 days prior to the commencement of any course of study or vocational training of his details of enrolment and attendance times.
5.The Defendant is excused from reporting to the Officer in Charge of Bundaberg Police Station today, and excused from the curfew requirements identified in Order 4(i) to the extent that he is travelling back to Bundaberg from Brisbane in the company of his father and step mother.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
This is an application by the Commonwealth Director of Public Prosecutions (CDPP), who is responsible for the prosecution of indictable offences on Norfolk Island, for a review of bail granted to the accused, Tiaan Linley Christian, on 16 February 2018 by the Chief Magistrate of Norfolk Island. The bail review is pursuant to s 36 of the Bail Act 2005 (NI).
BACKGROUND AND CHARGES
The accused is charged with five offences of a sexual nature against the same complainant. The accused was at the time of the offences, and still is, 19 years of age. His date of birth is 21 July 1998. The complainant was aged 13 and 14 years at the relevant time.
The first offence in time is that of sexual intercourse with a young person (contrary to s 113(3) of the Criminal Code 2007 (NI)) committed on 26 August 2017 (first offence). The applicable maximum penalty is 14 years imprisonment. The accused is also charged with two charges of supplying liquor to a minor (contrary to s 66(a) of the Liquor Act 2005 (NI)), being both the complainant and her friend, prior to the act of sexual intercourse occurring.
The accused was charged with the first offence and the two offences of supplying liquor to a minor on 14 December 2017. On 19 December 2017, following a review by the Chief Magistrate of the granting of police bail, the accused was granted bail on conditions. Two of those conditions were that he:
(i)Have no contact directly or indirectly with any prosecution witnesses, including the complainant and two female child witnesses; and
(ii)Not approach within 100 metres of the complainant and the two female child witnesses.
The accused breached the above bail conditions. He not only had direct and indirect contact with the complainant, but also committed further sexual offences on her within four weeks of being granted bail.
On 10 February 2018, the accused was charged with four further sexual offences as follows:
(i)Sexual intercourse with a young person committed on a date unknown between 13 January 2018 and 8 February 2018 (second offence);
(ii)Sexual intercourse with a young person committed on a date unknown between 13 January 2018 and 8 February 2018 (third offence);
(iii)Sexual intercourse with a young person committed on 8 February 2018 (fourth offence); and
(iv)Maintaining a sexual relationship with a young person between 26 August 2017 and 10 February 2018 (fifth offence).
The fifth offence is a charge pursuant to s 114 of the Code and carries a maximum penalty of life imprisonment. The second, third and fourth offences are charged under the same provision as the first offence.
The accused was initially refused bail by the Chief Magistrate in relation to the five charges. At the initial hearing on 12 February 2018, references and a report of Dr Kate Lemerle dated 9 January 2018 were relied upon by the accused. The Chief Magistrate indicated that bail would be refused but adjourned the matter until 15 February 2018 to allow the accused further time to obtain additional material to put before the court.
On 15 February 2018, a further report of Dr Lemerle dated 14 February 2018 was relied upon by the accused. The Chief Magistrate refused bail and the accused was remanded in custody. He was due to be transported to a remand centre located off Norfolk Island the following day, 16 February 2018.
On 16 February 2018, the matter came back before the court as a committal mention. The accused entered pleas of guilty to each of the offences of sexual intercourse with a young person. The accused pleaded not guilty to the fifth offence. The legal representative for the accused then indicated that he wanted the issue of bail revisited. Submissions were made that if bail was granted, the accused and his family would reside in Bundaberg, Queensland. The Crown maintained its objection to bail. No affidavit evidence, or other evidence, was put before the court concerning the proposed living arrangements for the accused in Bundaberg if he was granted bail. I note, however, that affidavit evidence is not ordinarily required for bail hearings in the Magistrates Court on Norfolk Island. Nor, in my experience, is it the usual practice for affidavits to be required for bail hearings in most Magistrates Courts throughout Australia.
THE BAIL ORDER OF 16 FEBRUARY 2018
On 16 February 2018, the Chief Magistrate granted the accused bail, subject to the following conditions (as drafted):
1. To remain in custody of Norfolk Island Police until he boards a flight from Norfolk Island to Brisbane Queensland in the company of his parents, on or before Saturday 24th February 2018.
2. To reside at 3/12 Mulgrave Street, Bundaberg, Queensland and not leave that address between 7:00pm and 6:00am, and that either his father, step mother or a person approved in writing by the Commonwealth Director of Public Prosecutions be with him at all times when he is at home or away from home.
3. Not to obtain or use a mobile phone, or use any other telephone, except as provided in condition 9.
4. Not to use any computer or electronic communication device except for purposes required by a recognized course of vocational study at a TAFE college or equivalent educational institution, and to give his father and any State or Commonwealth Police Officer access to the computer on request.
5. To surrender his passport, which will be provided to him by the Norfolk Island Police Force solely for the purpose of travel from Norfolk Island to Queensland, to the Officer in Charge, Bundaberg Police within 24 hours of arriving in Bundaberg.
6. To consult with Dr. Kate Lemerle or a psychologist nominated by her at least once per week, and if by electronic means, the connection is to be made and disconnected by a parent or authorized person, and to authorize such psychologist to confirm to Commonwealth Director of Public Prosecutions or Police that such consultation has occurred.
7. To report daily between the hours of 8:00am and 4:00pm to Officer in Charge Bundaberg Police Station in the company of a parent, commencing the day after he departs from Norfolk Island.
8. Not to leave Bundaberg except to attend the Federal Court in Brisbane or the Supreme Court of Norfolk Island in the company of his father.
9. The accused may communicate by landline telephone with his legal advisers in the presence of his father.
10. Not to contact the complainant or any witnesses directly or indirectly.
THE FACTS RELATING TO THE OFFENCES AND OUTSTANDING CHARGE
Affidavit evidence has been filed which details the facts of the charges. The affidavit of Colin Sims relates to the first offence and the affidavit of Sarah Jason relates to the remaining sexual offences committed whilst the accused was on bail for the first offence. Written submissions were also filed in the previous bail hearings which detail the facts.
The clearest and simplest recitation of all of the relevant facts are the two Statement of Facts documents attached to the affidavit of Megan Cooper. The affidavits of Colin Sims and Sarah Jason then assist in attaching transcripts or summaries of transcripts of the evidence of witnesses and the accused.
Circumstances of first offence
The accused and the complainant had known each other for a number of years. A short time prior to the offence they had been communicating through social media. It will be alleged by the Crown that the accused “groomed” the complainant by communicating with her about whether she was interested in him sexually. The complainant states that she had told the accused that she was 13 years old.
An arrangement was made on the evening of the offence for the accused to meet the complainant a short distance from her house and to go for a drive in his vehicle, which they called a “cruise”. The accused had asked the complainant if she was willing to “do things” on the “cruise” and the complainant said “let’s go on a cruise and see what happens”. A friend of the complainant, [redacted], accompanied her.
The complainant and her friend consumed alcohol that was in the back seat of the accused’s vehicle. After a period of time, the accused stopped the car and he and the complainant went into a reserve. It is there that the accused had penetrative sexual intercourse with the complainant. The complainant began to feel stressed and told the accused to stop, which he did. The accused drove the complainant and her friend home. The complainant had not had sexual intercourse prior to the alleged offending.
The complainant told her friend, [redacted], aged 13 years, about the sexual offending the next day. Police were notified. [redacted] provided a police statement which supported the complainant’s account.
The accused took part in an electronically recorded interview with the police, in the presence of his solicitor, Mr John Brown. He made full admissions to the offence. He admitted that he told the complainant not to tell anyone about the offence. It would appear to be fairly clear from some questions and answers that the accused knew that the age of consent was 16 years and that the complainant was underage.
The accused was charged and bailed with the conditions as detailed earlier.
Circumstances of offences committed whilst on bail: Offences two to five
On 10 February 2018, the complainant in respect of the first offence provided additional information to the police which indicated that:
(i)The accused communicated with the complainant via text messages between 13 January 2018 and 8 February 2018. These text messages from the accused, amongst other things, requested that the complainant come for a drive;
(ii)The complainant ultimately snuck out of her bedroom at night and met the accused at his vehicle;
(iii)The accused drove the complainant around for a short time, parked his car, then had sexual intercourse with the complainant in the back of his car;
(iv)The defendant then drove the complainant back to her home; and
(v)This conduct occurred on three occasions (offences two to four).
The defendant was arrested on the evening of 10 February 2018. He participated in a further interview with the police on 11 February 2018, during which he admitted to having contacted the complainant by text message and having sexual intercourse with her on the three further occasions.
Whilst constituting serious offending of itself, a clearly aggravating circumstance is that the further offending constituted clear breaches of the accused’s bail in that he was prohibited from contacting the complainant directly or indirectly. There is evidence in the affidavit of Sarah Jason of the extent of the communication between the accused and the complainant. The accused sent 762 text messages to the complainant between 13 January 2018 and 8 February 2018. I will note in this context, however, that there is no evidence at this stage concerning the content of the text messages, nor any evidence of how many text messages emanated from the complainant.
RELEVANT CRITERIA TO BE CONSIDERED IN BAIL APPLICATIONS
The criteria to be considered in bail applications are set out in s 25 of the Bail Act. Section 25 provides as follows:
Criteria to be considered in bail applications
25.(1)In making a determination as to the grant of bail to an accused person, an authorised member or a court shall take into consideration so far as they can reasonably be ascertained the following matters only:
(a)the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to –
(i)the person’s background and community ties, as indicated by the history and details of his or her residence, employment and family situations and, if known, his or her prior criminal record;
(ii)any previous failure to appear in court pursuant to a recognisance of bail entered into before the commencement of this section or pursuant to a bail undertaking;
(iii)the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty; and
(iv)any specific evidence indicating whether or not it is probable that the person will appear in court;
(b) the interests of the person, having regard only to –
(i)the period that the person may be obliged to spend in custody if bail is refused and the conditions under which he or she would be held in custody;
(ii)the needs of the person to be free to prepare for his or her appearance in court or to obtain legal advice or both;
(iii)the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii); and
(iv)whether or not the person is, in the opinion of the authorised member or court, incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection;
(c) the protection and welfare of the community, having regard only to –
(i)whether or not the person has failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition previously imposed in respect of the offence;
(ii)the likelihood of the person interfering with evidence, witnesses or jurors;
(iii)the likelihood that the person will or will not commit an offence while on bail; and
(iv)where the offence is alleged to have been committed against or in respect of a child within or a juvenile the likelihood of injury or danger being caused to the child or juvenile; and
(d)where the offence alleged against the accused person involves the contravention of, or a failure to comply with, an order under the Domestic Violence Act 1995, the likelihood of –
(i)personal injury being caused, or threats being made, to a person for whose benefit, expressly or impliedly, the order exists;
(ii)damage to property in the possession of or being used by a person referred to in subparagraph (i) occurring; or
(iii)a breach of the peace involving the accused person occurring.
(2)For the purposes of this section, the authorised member or court may take into account any evidence or information which the authorised member or court considers credible or trustworthy in the circumstances, including hearsay evidence.
CONSIDERATION
Before recording my findings in respect of each of the relevant criteria, I should note that, quite properly, the Crown conceded that there was a presumption in favour of granting the accused bail pursuant to s 9 of the Bail Act.
The first of the relevant criteria to this bail review is the criterion set out in s 25(1)(a) of the Bail Act, that is, the criterion that relates in general terms to the probability of whether or not the accused will appear in court when required.
In considering this criterion, it is plainly highly relevant that the accused has pleaded guilty to six offences, four of which carry a maximum penalty of 14 years imprisonment. They are unquestionably objectively very serious offences. It is also fairly clear from the facts that I have described earlier that, on just about any view, these are very serious offences in the particular circumstances of this case. The accused also faces a remaining charge, to which he pleaded not guilty, which is a charge that, if proved, carries a potential maximum sentence of life imprisonment. Self-evidently that is an objectively very serious offence.
Both the learned Crown and Ms Reece, on behalf of the accused, made detailed submissions concerning the prospect or likelihood of the accused being sentenced to a term of imprisonment in respect of the offences to which he has already pleaded guilty. I note in that respect that s 119(1) of the Sentencing Act 2007 (NI) provides that:
Imprisonment for sexual offences
119. (1) Where a court finds an offender guilty of a sexual offence, the court must record a conviction and must order that the offender serve –
(a) a term of actual imprisonment; or
(b) a term of imprisonment that is suspended by it partly or wholly.
I do not propose to discuss in these reasons the respective submissions of the Crown and the accused concerning the likelihood or otherwise of the accused being sentenced to an actual term of imprisonment. The sentencing exercise in relation to the offences to which the accused has pleaded guilty will no doubt be a difficult and complex exercise. Ms Reece, on behalf of the accused, has foreshadowed leading expert psychological evidence. That evidence may be contested. Plainly the sentence to be imposed will turn not only on that evidence alone, but other detailed evidence that may be led at the sentence hearing.
It is sufficient to say, in all the circumstances, that there is at least a serious prospect that a sentence involving actual custody may be imposed in relation to the offences in respect of which the accused has already pleaded guilty. Of course, if the accused is convicted of the additional offence, that likelihood or prospect would increase further. That is no doubt a very weighty consideration in assessing the probability of whether or not the accused will appear in court when his trial is listed. That is because the seriousness of the offences and the prospect of the imposition of sentences involving actual custody gives rise to the risk that the accused may abscond to avoid that prospect. Importantly, however, there is no history of the accused failing to appear in court when required. He appeared with his counsel at the review application today, despite being given very short notice of it. More particularly, I am satisfied by the evidence from the accused’s parents - to which I will return shortly – that there is a high probability that he will appear in court when required. That is because, in short, I am satisfied that the accused’s parents will do everything they can to ensure that the accused will appear in court when and as required.
The next relevant criterion in relation to the accused’s bail is the criterion set out in s 25(1)(b) of the Bail Act. That criterion is directed at the interests of the accused, having regard to, amongst other things, the period that he may be required to spend in custody if bail is refused and his need to prepare for his trial. I propose to set this matter down for trial and potentially sentence, in respect of those offences to which the accused has already pleaded guilty, in June 2018. No earlier date is feasible. That means that if bail is refused or revoked, the accused will be required to spend at least three months in custody.
I am satisfied from inquiries made by the registrar and, perhaps more importantly, from information provided by the learned Crown, that the accused during those three months would be transported to Sydney and be held in custody at the Silverwater Correctional Facility. The accused is a young man. He has not been in jail before in New South Wales or elsewhere, let alone a jail like the Silverwater Corrections Facility. That is a very weighty consideration.
It is also clear that during the period before his trial, the accused will need to be free to prepare for his trial. I note that his counsel is based in Brisbane. If the accused is detained in the Silverwater Corrections Facility, that will no doubt create difficulties in relation to the preparation for trial. There was no direct evidence about that, but I think it is a fair inference in all the circumstances. Those are, again, very weighty considerations.
The next relevant criterion is the criterion in s 25(1)(c) of the Bail Act. That criterion relates to the protection and welfare of the community, having regard to whether the accused has failed to observe bail conditions in the past, the likelihood of the accused interfering with evidence or witnesses, and the likelihood that the accused will or will not commit an offence while on bail.
There could be little doubt whatsoever that this is a critical criterion in the circumstances of this case. That is all the more so because, as has been already explained, the accused committed serious offences while on conditional bail and in respect of the first offence. He breached those bail conditions in the most serious of ways. Not only did he commit offences of the same sort as those for which he was on bail, but he had extensive contact with the complainant.
The bail conditions imposed by the learned Chief Magistrate were plainly directed to minimise if not eliminate the risk of reoffending or interference with the evidence or witnesses. There could be little doubt that if the accused did not relocate with his family to Bundaberg, the likelihood is that the Chief Magistrate would have refused bail. The conditions imposed by the learned Chief Magistrate were detailed and created onerous obligations, not only on the accused in terms of reporting and curfews, but also on his parents, by which I mean his father, Mr Trent Christian, and his stepmother, Ms Sally Anne McLeod.
The Crown made detailed submissions as to why those conditions were effectively unviable and unenforceable. I certainly agree with the Crown that the bail conditions are unusual in the circumstances. I also agree that the grant of bail in the particular circumstances of this case, albeit subject to those stringent conditions, was in all the circumstances somewhat exceptional. That is because, amongst other things, the enforcement or viability of the bail conditions and their ability to reduce or eliminate the risk of reoffending or further contact with the complainant or other witnesses depends almost entirely on the vigilance, care and zealousness of his parents.
I should make it abundantly clear that if I had any concerns whatsoever about the genuineness and ability of the accused’s parents and their capacity to satisfactorily supervise the accused and ensure that he complied with all his bail conditions, I almost certainly would have refused or revoked bail. The accused’s parents both swore affidavits which were read without objection. Despite that, I requested that they give oral evidence so that I could assess their genuineness, qualities and capabilities.
Ms Reece, on behalf of the accused, submitted that both the accused’s father and stepmother appeared as decent, concerned, committed, forthright and honest people. I agree. They gave frank and sensible responses to the questions asked of them in cross-examination and indeed the questions asked of them by me. They were not in any sense argumentative or evasive and made frank and sensible concessions when it was plainly reasonable to do so. I have no doubt whatsoever that they are people of integrity who are deeply committed to their son and are highly responsible parents. Were it otherwise, as I have said, I would almost certainly have revoked bail. Their evidence was, indeed, the turning point in relation to this bail application.
I accept without qualification that the accused’s parents are genuine and committed and have the capacity to minimise any risk of reoffending or further contact with any witnesses and the complainant in particular, at least to the point that I am satisfied that bail, more or less on the terms ordered by the Chief Magistrate, is appropriate in all circumstances.
I reiterate that, given the seriousness of the offences, the fact that the accused previously breached bail and the fact that he committed further offences while on bail, make bail, in the circumstances, exceptional. I also accept that the conditions that have been imposed are somewhat unusual, but in all the circumstances, I consider that bail subject to those conditions is acceptable.
I will simply say one more thing and it is directed at the accused himself: sir, you are a very lucky man. If you did not have such honest and committed parents who trust you and have put themselves out for you during this period before your trial, you would be spending the next few months in the Silverwater Corrections Facility in New South Wales. Do not breach that trust that your parents have shown in you.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 4 April 2018