STEP-FATHER CHARGED WITH SEXUALLY PENETRATING HIS STEP-DAUGHTER APPLIES FOR BAIL
Re Fayyaz [2021] VSC 208 (28 April 2021)
The applicant applies for bail on charges of sexual penetration involving his step-daughter alleging that the prosecution’s case is not a strong one and that the circumstances surrounding the case warrant the grant for bail.
Facts:
It is the prosecution case that, in late 2019, the applicant began sexually offending the complainant at times when AU (applicant’s wife) was out of the house. It is alleged that the applicant kissed the complainant (step-daughter), touched her vagina and breasts, forced or tricked her into touching his penis and put his mouth on her vagina. Once the alleged offending commenced, it is said to have occurred regularly, approximately once a month. On the complainant’s account, the applicant made her promise not to tell AU, and told her that the behaviour was ‘normal’.
Applicant contended that the prosecution case, whilst not weak, should not be viewed as a strong one, for a combination of reasons he put forward, including the fact that the evidence of the complainant was unsupported by other evidence.
On the question of risk, it would be obvious to the applicant that should he in any way approach or contact the complainant or his wife, the consequences for him would be profound. He would not only be in breach of the FVIO, but would also be taking a step that would have the effect of strengthening the case against him. The stringent conditions proposed would be sufficient to ameliorate the risk posed by the applicant to a level where it would not be unacceptable.
The respondent, on the other hand, submitted that the onus resting on the applicant to show a compelling reason had not been discharged. The respondent took issue with the submissions of the applicant attacking the strength of the prosecution case. The case, it was submitted, was of perfectly adequate strength, and there would be a real prospect of the applicant being found guilty, in which event, condign punishment would be inevitable.
On the question of the risk posed by the applicant, Mr Stefanovic asserted that there would be an unacceptable risk of the applicant endangering the safety and welfare of the complainant and her mother, or interfering with a witness or otherwise obstructing the course of justice.
Issue: Should the bail be granted?
Law:
Analysis:
In respect of the seriousness of the offending, the court does make the observation that serious though any sexual contact with a child is, and in particular, the penetrative contact of his step-child alleged against the applicant, which would attract a maximum penalty of imprisonment for 25 years, the offending here does not have some of the aggravating features commonly seen. There is not alleged to have been any overt violence perpetrated, although the court acknowledges the undertones of violence and coercion present in any instance of sexual contact carried out by a much older parent towards a young child. There is a single instance of lingual penetration of the vagina of the complainant alleged in the context of ongoing touching and other sexual conduct over a period of time. Of course, these are serious allegations, but not towards the high end of the spectrum of the seriousness of such offending.
Turning to the strength of the case, there is no reason to suppose the case to be a weak one, but on the other hand, it does not have any of the features which would render it a particularly strong one either.
The applicant is a 41 year old man with no criminal history of any sort, and no adverse history of bail. At the time of the alleged offending, he was not subject to any grant of bail or any other court disposition. The court considers the good previous history of the applicant, in light of his age, to be a very important matter in this case.
The stringent conditions of bail proposed by the applicant, in respect of which the respondent has had some input, including a curfew and a geographical restriction prohibiting travel into the City of Wyndham, would go a long way to ameliorating the risk posed by the applicant which is essentially that he may seek to contact, coerce or harm the complainant or other family members.
Whilst it is clear enough that the applicant does pose a risk, in particular, because of the knowledge he has that the case against him for very serious offending is almost totally reliant upon the evidence of the complainant, the court is not satisfied that the risk would be an unacceptable one, so long as stringent conditions of bail are imposed to control the conduct of the applicant.
Conclusion: Having considered all of the surrounding circumstances of this case, the court reached the view that the applicant has discharged the burden resting on him of proving that a compelling reason exists that justifies the grant of bail.
