Director of Public Prosecutions (NSW) v RS

Supreme Court of NSW|2022-08-23|Before: Bellew J

INTRODUCTION

By an application dated 16 August 2022 the Director of Public Prosecutions (NSW) (the Director) sought the detention of RS (the respondent) pursuant to the provisions of the Bail Act 2013 (NSW) (the Act).
I heard the Director's application on 23 August 2022 in the course of which I was assisted by written and oral submissions from the parties. At the conclusion of the proceedings I made the following orders: 1. The detention application is granted. 2. The respondent's bail is revoked. 3. The respondent is to be taken into custody forthwith.
At the time of making those orders I indicated that my reasons would be published at a later time. Those reasons now follow. I should note that having made those orders, counsel for the respondent sought a stay and indicated that an application for release would be brought by the respondent in the Court of Criminal Appeal. In my view, there was simply no warrant for the granting of a stay and that application was refused.

THE EVIDENCE

The Director tendered the following documents: 1. the Indictments presented against the respondent in the District Court; 2. the Crown case statement; 3. the facts which are proposed to be tendered on sentence; 4. a bail report; and 5. the respondent's custodial history.
The respondent read three affidavits namely those of: 1. Toshi Weller-Wong, solicitor, of 19 August 2022; 2. Daniel O' Brien of 19 August 2022; and 3. the respondent's wife (to whom I shall refer as KS) of 19 August 2022.

FACTUAL BACKGROUND

The factual background to the application is not in dispute.
On 21 February 2022, the respondent was found guilty by a jury of a charge of assault.
On 3 June 2022 he was found guilty by a jury of: 1. two counts of aggravated sexual assault of a child under the age of 16 years; and 2. three counts of indecent assault of a child under 16 years (collectively, the child sexual offending).
The respondent is to appear before the District Court on 30 September 2022 for sentence in respect of all matters.
It is not necessary, for the purposes of this application, to recount the facts of the respondent's offending. It is sufficient to note that in the course of the hearing of the Director's application, counsel for the respondent expressly conceded that a sentence of full time imprisonment would be imposed. [1]

THE RELEVANT LEGISLATIVE PROVISIONS

Central to the Director's application is s 22B of the Act which is in the following terms: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court-- (a) on a release application made by the accused person--must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person--must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5) In this section-- "conviction" also includes a plea of guilty.
Also relevant, in light of a submission advanced on behalf of the respondent, are the provisions of s 73 of the Act which are in the following terms: 73 Discretionary grounds to refuse to hear bail application (1) A court may refuse to hear a bail application if satisfied that-- (a) the application is frivolous or vexatious, or (b) the application is without substance or otherwise has no reasonable prospect of success. (2) A court (other than the Local Court) may refuse to hear a bail application if satisfied that the application could be dealt with as a variation application by the Local Court or an authorised justice. (3) This section does not apply to a release application or a variation application made by an accused person on a first appearance in substantive proceedings for the offence.

PRELIMINARY MATTERS

Before considering the substance of the Director's application, it is necessary to address two preliminary submissions advanced by counsel for the respondent.

The discretionary refusal to hear the present application

Counsel for the respondent submitted that I should exercise the discretion in s 73 of the Act and refuse to hear the Director's application. The bases of that submission, which centred upon the provisions of ss 73(1)(a) and (b), were that: 1. the Director had not, since the enactment of s 22B(2) of the Act, made an application in the District Court for the respondent's detention application, despite that Court being seized of the substantive criminal proceedings; 2. the Director's failure to bring such application before the District Court undermined the proper hierarchy of decision making envisaged by s 66(2) of the Act; 3. the respondent had been on bail following the finding of guilt for the offence of assault since 21 February 2022, and following the finding of guilt for the child sexual offending since 3 June 2022, and these factors rendered it obvious that special and exceptional circumstances existed justifying the grant of bail, to the point that no hearing was necessary to further explore the issue; 4. the respondent was entitled to order and arrange his affairs on the basis of the law as it existed at the time of his convictions, such that a proper and reasonable exercise of the discretion in s 73 would take into account the status quo; 5. no bail concerns were established on the evidence; 6. only a short period remained until sentence would be imposed, which was a small percentage of the time over which the respondent had been at large since being found guilty; 7. the application gave rise to complex legal and factual issues which were "unwarranted to decide in the above circumstances"; and 8. there had been an "obvious lack of executive restraint" on the part of the Director in bringing the application, to the point where the application was frivolous, unmeritorious and without substance.
In Director of Public Prosecutions (NSW) v AP [2] , matters of this general nature were relied upon in support of a similar submission. For the reasons I expressed in that judgment, [3] I am unpersuaded that I should decline to hear the present application pursuant to s 73.
Although not specifically relied upon in this context, I should make note of the fact that in circumstances where the respondent was found guilty of the child sexual offending on 3 June 2022, it was not until 16 August 2022 that the present application was filed. No explanation was advanced for that delay which is, to say the least, significant. Such delay, and the absence of any explanation for it, falls short of what is expected from the Director of Public Prosecutions. However, in view of the conclusions I have reached, I am not persuaded that such matters justify exercise of the discretion in s 73 of the Act, or that they otherwise justify the application being dismissed.

The application of s 22B of the Act to the present application

Counsel for the respondent submitted that in circumstances where s 22B came into force after the respondent's release on bail in the District Court, it had no application in light of the common law presumption against retrospectivity, and the provisions of s 30 of the Interpretation Act 1987 (NSW). Submissions to the same effect were made by senior counsel for the respondent in Director of Public Prosecutions (NSW) v Duncan. [4] For the reasons I expressed in that judgment [5] I am satisfied that s 22B does not apply to the present application.

THE ISSUES ON THE PRESENT APPLICATION

In light of the concession by counsel for the respondent that a sentence of full time custody will be imposed, the issue for determination is whether special or exceptional circumstances exist that justify a decision to grant bail. In Director of Public Prosecutions (NSW) v Van Gestel [6] the Court of Criminal Appeal endorsed an approach whereby the determination of such an issue is one to be made on a case-by-case basis.
In the present case, three principal matters were relied upon by the respondent to establish circumstances which were special or exceptional, namely: 1. the arrangements which have been made for him to be psychologically assessed for the purposes of obtaining a report to be tendered in his sentence hearing; 2. his need to be at liberty in order to continue working; and 3. his health issues.

The respondent's upcoming psychological assessment

In his affidavit of 19 August 2022, the respondent's solicitor said the following: [7] 10. After [the respondent] was found guilty of the offences before the court, [the respondent's] previous solicitor made arrangements for him to see forensic psychologist Patrick Sheehan for assessment. 11. Mr Sheehan is a Forensic Psychologist who specialises in assessment and treatment of sexual offenders and accepts matters at rates affordable to Legal Aid. 12. On 19 August 2022 I called Mr Sheehan and he conveyed to me the following information: a. [The respondent] has an appointment with him on 6 September 2022 for two hours via AVL from the Legal Aid Office in Dubbo. If [the respondent] is remanded in custody this appointment will need to be via AVL to whichever correctional centre he is remanded in. b. If [the respondent] cannot attend his 6 September appointment the next available appointment with Mr Sheehan is in December 2022. By 23 August 2022 the next available appointment will likely be next year. c. Mr Sheehan has had at least 10 appointments with inmates cancelled this year due to unforeseen complications resulting from Covid 19 policies implemented by Corrective Services NSW. These appointments are usually cancelled the day of the appointment with no prior warning allowing the parties to reschedule. 13. From my experience as a solicitor since July 2016, and in particular since the beginning of the Covid 19 pandemic, it is often very difficult to obtain appointments at short notice with clients, particularly for lengthy appointments. 14. When appointments are obtained, they are often cancelled due to unforeseen covid lockdowns, isolation, movement of clients without notice, and other issues. 15. Given Mr Sheehan's availabilities, it seems inevitable that this will delay the sentence proceeding until early next year. I also contacted a number of other suitable Forensic Psychologists; none of whom were able to undertake to have a report available by 30 September 2022.
The respondent's solicitor went on to say: [8] 17. In the event that we are not able to obtain a psychological report for [the respondent] before 30 September 2022, I would advise him to make an application to vacate the sentence hearing and adjourn it to a time early in the new year to allow Mr Sheehan to prepare the report, thereby further delaying a proceeding that has been on foot since February 2020.
The impacts of the Covid-19 pandemic on the operation of Correctional Centres in NSW are well known. They include, but are certainly not limited to, inmates being placed in isolation for extended periods, and the imposition of lockdowns, often with little notice. There is a possibility, in the event that the respondent is taken into custody, that the arrangements which have been made for his psychological assessment will be interrupted. It cannot be put any higher than that. To assert that such interruption is inevitable, and that there will be a consequent delay in the sentence proceedings, is more than a little speculative and, on the present evidence, has a clear tendency to overstate the true position.

The respondent's employment

Mr O'Brien's affidavit establishes that for the past 11 years, the respondent has managed a property owned by Mr O'Brien's father who suffers from dementia. The respondent's responsibilities include the day-to-day management of all stock including 140 breeding cows, 4 bulls, 100 calves and 500 ewes. The respondent is also responsible for general maintenance of the property, as well as maintenance of machinery. [9]
In his affidavit, Mr O'Brien explained that, acting under a Power of Attorney from his father, he is in the process of transferring the property to his sister. Contracts have been exchanged, but at present no settlement date has been set. Mr O'Brien explained that when settlement of the transfer does occur, the respondent's employment will cease.
Mr O'Brien also said the following: [10] 9. At present my father is entirely reliant on [the respondent] being present to attend to the abovementioned tasks. 10. If [the respondent] does not return after Court on 23 August 2022, we would try to find someone to fulfil his duties. I do not have any experience in hiring in the agricultural industry however, I believe it would be difficult to find (at such short notice) someone able to undertake his duties without the significant impost of having to find, supervise, and train that person. I also think it would be highly unlikely that someone would wish to take up such a role just for the period remaining before settlement. 11. The livestock are spread across two properties. There is different water infrastructure on both properties, some requiring regular maintenance and understanding due to its age. Due to [the respondent's ]long affiliation with the property, he has an intimate knowledge of the enterprise that could not be reproduced. 12. I live at Koonorigan in the Northern Rivers and am not local in order to train and supervise any potential future employees, particularly for someone who would be employed for such a short time.
In my view, two matters arise from Mr O'Brien's evidence.
First, it is evident that no actual attempt has been made to employ someone to assume the respondent's duties. Secondly, the absence of any such attempt must be viewed in circumstances where the respondent was convicted of the principal offences more than 2 months ago, and where it has been expressly conceded that a sentence of full time custody will be imposed.

The respondent's health

The evidence of KS is that she attended an appointment with the respondent and his General Practitioner on 8 April 2022. KS stated that such appointment was made as a consequence of the respondent experiencing episodes of shortness of breath as well as "coughing and collapsing" which had been occurring semi-regularly, and which had increased since the jury's finding of guilt for the child sexual offending in June of this year. [11] At that consultation, the respondent was referred for tests. [12]
The clinical note of that consultation [13] and reads (inter alia) as follows: Under a huge amount of stress over a legal issue and collapsed in court in the recent session. All were concerned about an Ml. Needs stress test but has significant OA in knees so sestamibi scan.
The abbreviation "MI" refers to Myocardial Infarction or in other words, a heart attack. The reference to "OA" is a reference to Osteoarthritis.
The clinical note records that on examination, the respondent's blood pressure was 150/80 and that he was prescribed Tramadol, Efexor, Irbesartan and Rosuvastatin. In terms of the referral, the clinical note reads: Imaging request printed to Prp Dubbo: Nuclear medicine - Sestamibi Stress test. (Recent episode of chest pain, high chol and hypertension).
In a report prepared following a Myocardial Perfusion Scan conducted on the respondent at PRP Diagnostic Imaging in Dubbo on 14 April 2022, [14] Dr Marcin Roman expressed the following conclusions in light of the results of the scan: 1. Good exercise tolerance. Appropriate haemodynamic response. No chest pain. No stress induced diagnostic ECG changes. 2. No ischaemia. Normal LV systolic function. Coronary artery calcification is present. Fortunately, this is not causing prognostically significant ischaemia at this stage. Risk factor modification+/- medical therapy should be sufficient for now.
KS attended another consultation with the respondent and his General Practitioner on 21 June 2022, which was almost three weeks after the jury's verdict of 3 June. In respect of that consultation, KS said: [15] I think this is when she told us the results of the tests. She told us that he had calcification of coronary arteries in heart and referred to a specialist, Dr Triveti [sic] at Dubbo Allied Health.
The clinical note of that consultation [16] reads (in part) as follows: Discussion with his wife first. The court case went against him but he is appealing. The judge was concerned about potential underlying cardiac porblem [sic] and has let him out on bail to address these issues. [The respondent] did not mention any of this. Bloods and cardiology review.
The clinical note goes on to record that a referral to Professor Siddharth Trivedi was provided to the respondent [17] in (inter alia) the following terms: Thank you for seeing [the respondent] for an opinion and management. He has been under huge stress lately with some accusations being made which he has strongly denied but ended up in court. On one of the occasions in court he collapsed and witnesses thought he had had an MI. He recovered and came to see me in clinic. He has significant OA in his knees so he went for a mibi scan. The scan was partly reassuring but I remain concerned. The court case did not go in his favour. He is appealing but if this fails he will be incarcerated. I am concerned that that could be a trigger for a major cardiac event. He is updating his bloods before he sees you.
KS said the following in relation to this referral: [18] 5. When we received the referral, I tried to make an appointment with Dr Triveti [sic] however, I was told by Dubbo Allied Health that he was currently overseas for two years so I could not make an appointment with him. 6. I then rang Ochre Health in Coonamble to obtain a new referral. They told me they would send a new referral to Dubbo Allied Health for [the respondent] to see Dr Rao. I planned to make an appointment for [the respondent] with Dr Rao when I took my mother to Dubbo Allied Health to the eye specialist in mid-July.
The referral to Dr Rao [19] is also dated 21 June 2022 and is in terms which are identical to those of the referral to Professor Trivedi.
I accept that KS attempted to make an appointment with Professor Trivedi on or about 21 June 2022 but was unable to do so. However, why a period of approximately three weeks elapsed before any attempt was made to make an appointment with Dr Rao in mid-July is unexplained. Absent some explanation, that delay is, in my view, somewhat inconsistent with the asserted seriousness of the respondent's medical conditions.
KS stated [20] that she was unable to obtain an appointment with Dr Rao when she attempted to do so in mid-July because his surgery had not received the referral. In circumstances where the evidence is silent on the issue, I infer that no steps were taken by the respondent, or by anyone on his behalf, between mid-July and 18 August to obtain the referral and make an appointment with Dr Rao. I am fortified in that conclusion by the fact that, having stated that she was informed of the present detention application on 18 August, KS said the following: [21] This caused me to call Ochre Health to further enquire about about [sic] the referral to Dr Rao. The receptionist told me that for unknown reasons the referral hadn't been sent to Allied Health yet. She arranged to send it yesterday (18/8/22).
KS has stated [22] that on 19 August she was able to make an appointment for the respondent to consult Dr Rao on 2 September, only 2 weeks later.
In addition to these matters, KS has stated that: [23] 1. the respondent was prescribed Venlafaxine for depression following his arrest in February 2020; 2. he has severe hip and knee pain from having worked in manual labouring jobs for his entire life; 3. he has been medicated for high blood pressure for approximately 10 years; and 4. she relies upon the income derived by the respondent for her living expenses.
The Director did not adduce evidence from any person in authority in Justice Health NSW in support of the proposition that Justice Health would be in a position to properly manage any of the medical issues raised by the respondent. That approach is markedly different from that taken by the Director in Van Gestel. [24] However, notwithstanding the absence of such evidence, I am not satisfied that the respondent's health issues, either of themselves or in combination with the other factors upon which he relied, amount to special or exceptional circumstances. I have come to that view for the following reasons.
To begin with, Dr Roman, who administered the Myocardial Perfusion scan, expressed the view that the respondent had: 1. good exercise tolerance; 2. an appropriate haemodynamic response; 3. no chest pain following exertion; 4. no stress induced diagnostic ECG changes. 5. no ischaemia; and 6. normal systolic function.
Whilst coronary artery calcification was found to be present, Dr Roman expressed the view that this was not causing prognostically significant ischaemia. He recommended what was, essentially, conservative treatment. On the evidence, this is clearly not a case where (for example) the respondent is facing the necessity for imminent surgery to address a life threatening condition. Rather, it is case where the only diagnostic test which has been administered has returned results which are overwhelmingly within a normal range. To the extent that any abnormality has been detected, it is one which, in the opinion of Dr Roman, is not prognostically significant, and can be managed conservatively. The chronology of the steps taken to obtain an appointment with Dr Rao are entirely consistent with the opinions of Dr Roman, and entirely inconsistent with the proposition, firstly that the respondent's health issues present an immediate threat, and secondly that the treatment of any such issues are beyond the capacity of Justice Health. On the evidence, it is apparent that steps towards securing an appointment with Dr Rao were only renewed when KS was informed of the fact of the present application on 18 August 2022. Further in my view, there is a degree of displacement between the proposition that the respondent's health issues and the need for treatment (either of themselves or in combination with other factors) constitute special and exceptional circumstances, and the proposition that he needs to be at liberty to continue undertaking heavy manual work.
Finally, to the extent that the affidavit of KS makes reference to her dependence on the respondent, it is noteworthy that it has been approximately 2½ months since the respondent was found guilty of the child sexual offending. In her affidavit, KS expressly acknowledged the likelihood that the respondent will be sentenced to full time imprisonment. In my view there has, in the past 2½ months, been ample opportunity for the respondent to arrange his own affairs, and any affairs pertaining to KS. Further, from the point of view of KS, this is not a case where, when the respondent is taken into custody, she will be without support. Her affidavit makes specific reference to the fact that she has three adult children who visit her regularly, as well as a neighbour and an uncle who are able to assist her. [25]
For these reasons I made the orders previously set out.

Endnotes

T 6.1 - T 6.3.
[2022] NSWSC 928.
At [20].
[2022] NSWSC 927.
At [25] - [36]; see also Director of Public Prosecutions (NSW) v Van Gestal [2022] NSWSC 973 at [31]-[40].
[2022] NSWCCA 171 at [52].
At [10] - [15].
At [17].
Affidavit of Mr O'Brien at [3]; [5] - [6].
At [9] - [12].
At [2].
At [3].
Annexure "A" to the affidavit of the respondent's solicitor.
Annexure "B" to the affidavit of the respondent's solicitor.
At [4].
Annexure "C" to the affidavit of the respondent's solicitor.
Annexure "D" to the affidavit of the respondent's solicitor.
At [5] - [6].
Annexure "E" to the affidavit of the respondent's solicitor.
At [7].
At [9].
At [10].
At [11] - [14]; [20] - [23].
At [55] - [62].
At [23] - [25]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2022

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Legislation Cited (2)

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