Applicant Charged with Incest and Rape Applies for Bail
Re SC [2021] VSC 770 (22 November 2021)
Charges of incest, rape, sexual penetration of a child under 16, indecent act with a child under 16, and indecent assault were filed against the applicant. The applicant applied for, and was refused, bail in the Mildura Magistrates’ Court. The Court, in determining whether or not the applicant should be granted bail, assessed whether or not he poses unacceptable risk.
Facts:
SC, the applicant, is a 34 year old Indigenous man who is in custody for the first time. He has been on remand since 8 October 2021, when he was arrested by Senior Constable Kristopher Blackmore and charged incest, rape, sexual penetration of a child under 16, indecent act with a child under 16, and indecent assault. Sometime between January and December 2000, the applicant was present at a house in Swan Hill where KS was sleeping in one of the bedrooms. He entered the bedroom, got into her bed and groped her breasts over her clothing for several minutes.
The applicant was 12 or 13 at the time and KS was eight or nine. This happened again sometime between January and December 2001. Between 1 and 8 September 2002, KS placed his hand on KS's thigh repeatedly and eventually touched her vagina despite her removing it. In September 2005, the applicant had vaginal sex with EP and she became pregnant with JS. The applicant was 17 at the time and EP was 14.
On 20 January 2010, the applicant forced himself on top of EP and vaginally raped her, despite her crying and protesting. Sometime between 2011 and 2012, the applicant got into JS’ bed at their home in Swan Hill and lifted JS up and placed her on his crotch, rocking her back and forth. The applicant was between 23 and 25 at the time and JS was between five and seven. In September or October 2012, CN commenced living with the applicant and EP at their home in Swan Hill.
One evening after she moved in, CN was sitting on the couch with the applicant watching television. He picked up her foot and used it to rub his penis over his clothing. This was only one of the several instances wherein the applicant engaged CN in his unwanted advances.
The applicant applied for, and was refused, bail in the Mildura Magistrates’ Court on 20 October 2021 because if granted bail, he was considered to be an unacceptable risk of committing an offence, endangering the safety or welfare of any person, or interfering with a witness or otherwise obstructing the course of justice. On 7 November 2021, the applicant filed an application for bail in this Court.
Issue:
Whether or not the applicant poses an unacceptable risk.
Applicable law:
Bail Act 1977 (Vic) s 1B - maximises the safety of the community and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty.
Bail Act 1977 (Vic) s 3A - provides that the Court in determining the present application must take into account any issues arising from his Aboriginality, including cultural background (including ties to extended family or place) and any other relevant cultural issue or obligation.
Bail Act 1977 (Vic) s 4AA - provides that the ‘show compelling reason test’ applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence.
Bail Act 1977 (Vic) s 4C - provides that bail must be refused unless the applicant satisfies the Court that a ‘compelling reason’ exists that justifies the grant of bail.
Bail Act 1977 (Vic) s 4D - provides that the Court must refuse bail if satisfied by the respondent that the applicant, if granted bail, would pose an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.
Bail Act 1977 (Vic) s 4E - provides that the Court must have regard to the surrounding circumstances in determining unacceptable risk, and consider whether there are any conditions of bail that could be imposed to mitigate any risk so that it is not unacceptable.
Bail Act 1977 (Vic) s 5AAAA - provides that the Court is required to consider whether there would be a risk that, if granted bail, the applicant would commit a family violence offence, and, if such a risk exists, whether it could be mitigated by the imposition of a condition of bail or the making of a Family Violence Intervention Order (‘FVIO’).
Analysis:
The applicant argues that since the sexual offences occurred prior to the enactment of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) if the section under which the offence is charged does not appear in Schedule 2, the applicant has a prima facie entitlement to bail and is not required to show a compelling reason why bail should be granted.
There has been a significant delay in bringing this prosecution, the alleged offending occurring between 2000 and 2013 and the applicant being charged in 2021. There will also be significant delays in the matter progressing through the Courts given the ongoing backlog as a result of the COVID-19 pandemic.
The applicant has a very limited criminal history and has not previously been sentenced to a term of imprisonment. The current remand period represents his first time in custody. The applicant has been on bail once before, in relation to the trafficking charge for which he is currently serving a CCO. Initially, when he was unable to be located, a warrant was issued for his arrest. He was arrested 18 days later and granted bail. The respondent acknowledged that the applicant complied with his conditions of bail on that occasion, and otherwise has no history of bail offences.
The fact remains that the most recent of the allegations is from 2013. As Ms Holmes very fairly conceded, the fact that a period of some 8 years has elapsed without any suggestion that the applicant has engaged in further sexual offending provides strong support for the proposition that the risk of releasing him on bail is not unacceptable.
Conclusion:
The applicant is prima facie entitled to bail In all the circumstances the Court is not persuaded that the risk associated with the release of the applicant cannot be reduced to an acceptable level by the imposition of strict conditions such as:
(a) The applicant reside at [redacted] in the state of Victoria);
(b) The applicant must notify the informant Senior Constable Kristopher Blackmore or his nominee of any proposal to change to his place of residence;
(c) The applicant is to report to the Officer in Charge of Swan Hill Police Station, or his or her nominee regularly;
(d) The applicant should not contact or attempt to contact any witnesses for the prosecution, other than the informant;
(e) The applicant not commit family violence;
(f) The applicant comply with all current Family Violence Intervention Orders;
(g) The applicant not use or possess any narcotic substance;
(h) The applicant not consume alcohol;
(i) The applicant provide a sample of his breath or oral fluid for testing upon the reasonable request of the informant or his nominee;
(j) The applicant must comply with Community Corrections Order (‘CCO’) case;
(k) The applicant is to continue to engage with Mallee District Aboriginal Services;
(l) The applicant is not to possess or use more than one mobile phone;
(m) The applicant is to provide the informant or his nominee with the phone number, IMEI number and any password or PIN of the mobile phone he possesses;
(n) The applicant is to produce the mobile phone upon the reasonable request of the informant or his nominee;
(o) The applicant is to provide any password or PIN for the mobile phone he possesses or uses upon the reasonable request of the informant or his nominee;
(p) The applicant not leave the State of Victoria;
(q) The applicant not attend any points of international departure;
(r) The applicant is to appear at the Magistrates’ Court at Mildura on 2 February 2022 or such other date thereafter as directed by that Court.
