The applicant has no previous criminal history in NSW. At the time of these offences, and since that time, he has been a resident of Queensland.
The applicant has had a criminal record in Queensland since October 2006. Whilst the offences with which he has been charged and which have been finalised can be regarded as relatively minor, he has been dealt with on seven occasions for failure to appear in accordance with an undertaking. I note, with respect to four of these occasions, that a conviction has been recorded. On the other occasions, no conviction was recorded by the Court before whom the applicant was brought.
However, in March 2013 the applicant was sentenced to two months' imprisonment for failure to appear, which was suspended for a period of 12 months. In December 2013, he was sentenced to a suspended term of imprisonment for the same offence.
No details of these matters have been put before this Court. The source of the information just described is limited to the document containing the applicant's criminal history in Queensland.
[2]
Failure to Appear in Answer to the CAN
As earlier noted, the applicant was served with the CAN on 2 May 2018. He had been aware since August 2016 that police were investigating the allegations made by the complainant. He became aware of the allegations when he spoke by telephone with a NSW police officer. After that contact, he heard nothing further until the CAN was served. The applicant did not attempt to flee from Queensland between August 2016 and receipt of the CAN.
The CAN was served in circumstances where, together with his partner, he was moving house to the address at which she presently lives. As he was loading the removal truck, he was approached by Detective Anderson, a NSW police officer, who handed the CAN to him. That Notice required him to attend the Tweed Heads Local Court on 25 June 2018. The applicant's evidence is that he thought he heard Detective Anderson say he was required to attend Court on 24 July 2018. The CAN was placed in one of the boxes being loaded onto the removal truck.
As is not uncommon, it took some time for all of the boxes to be unpacked when the applicant and his partner arrived at their new house. In early July, the applicant discovered the CAN and upon reading it, saw that the date he was required to attend was at the Tweed Heads Local Court was 25 June 2018, and not in July.
He telephoned Detective Anderson and sought guidance as to what he should do. She advised him to go to the nearest NSW police station, which was Tweed Heads. It was about 100km from where he was living.
The applicant remained at his home in Queensland until a warrant for his arrest was executed on 13 August 2018 at that address.
[3]
Material on this Application
In an affidavit filed on 13 March 2019, Ms Jenny Rodriguez, who is 35 years old, described the fact that she and the applicant have been in a committed relationship and living together for about 2½ years.. Ms Rodriguez notes that she, the applicant and two of her children from a previous marriage, moved to the address where she is currently living in May 2018. She works casually as a retail assistant. Her work capacity is limited by the need to care for a son who has been diagnosed with autism spectrum disorder ("ASD") and oppositional defiant disorder ("ODD").
Ms Rodriguez records in her affidavit that she is a person with no criminal history and that she is prepared to assist the applicant with complying with any bail conditions which the Court might impose. She says that she is prepared to report him to the NSW Police if the applicant fails to comply with any bail conditions. She also offers to ensure that the applicant attends Court. She notes that she has regularly attended court in these proceedings. In order to ensure the applicant's compliance with his bail conditions, Ms Rodriguez has indicated that she is prepared to forfeit the sum of $20,000 if the applicant fails to appear before the Court or if he is in breach of any bail condition in accordance with his undertaking.
Ms Rodriguez also deposes to the fact that the applicant has available to him an opportunity for employment, if released on bail, in a field in which he is experienced.
This material was not the subject of any challenge before this Court, and it is not suggested that the Court would not give the evidence full weight.
There is also before the Court material from the solicitor for the applicant which is addressed to the strength of the Crown case. That material, which consists of the entire interview between the 6 year old complainant and specialist police officers, suggests that the question of the guilt of the applicant on Charge 1 is not free from doubt. I would not describe the Crown case as a strong one. Beyond that, it is not appropriate for this Court to comment.
[4]
Discernment
I accept that the first charge of aggravated indecent assault is a serious offence carrying a maximum imprisonment of 7 years.
The applicant has no identifiable history of violence, nor does his record suggest that he has committed any serious offence whilst on bail. There are two offences on the applicant's record of assault and contravention of a Domestic Violence Order, but having regard to the fact that no convictions were recorded on either of these offences and in the absence of any statement of the facts of these offences, I am not persuaded that they constitute serious criminal conduct.
I have earlier outlined, and taken into account, the applicant's history of non‑compliance with bail undertakings.
Prior to his arrest, the applicant had been assisting his partner with the care of her son and his ASD and ODD condition. It is clear from the evidence that the applicant has established a significant and positive relationship with his partner's son, and that his provision of ongoing assistance in his upbringing is of importance to both the applicant's partner and her son.
As well, the applicant is seeking to be at liberty to progress his claim for access to, or custody of, his son from another marriage.
I have had consideration to all of the matters set out in s 18 of the Bail Act, and to the submissions which have been made.
In my opinion, the risk of non-appearance by the applicant when this matter is fixed for hearing in June 2019, can be addressed by the security condition which is proffered by the applicant's partner. Having regard to Ms Rodriguez' financial position, the relatively stable relationship between the applicant and herself and the applicant's interaction with her son, I think it quite unlikely that he will fail to appear. It is not, with the security condition proffered, an unacceptable risk.
To the extent that any bail concern remains, in my view that is adequately addressed by the imposition of all of the conditions which are set out in Annexure A, and which were imposed by the Court on the day that bail was granted.
It is for these reasons that I joined in with the order granting the applicant bail.
HIDDEN AJ: I agree with Garling J.
[5]
ANNEXURE A
1. He is to be of good behaviour.
2. He is to live at 41 Hailsham Street, Alexandra Hills Queensland 4161 with his partner Jenny Mary Rodriguez and nowhere else.
3. He is not to leave and is to remain at the address except if he is in the company of Jenny Mary Rodriguez.
4. The abovementioned condition is not applicable if the applicant is reporting to a police station, going to a medical appointment and/or directly travelling to work at 666 Welding.
5. He must not leave and must remain at his bail address regardless of company between the hours of 7.30pm and 6am.
6. He is to report to Capalaba Police Station daily between the hours of 6am and 7pm.
7. He must appear at Tweed Heads Local Court as required.
8. He is not to drink alcohol or enter any premises in which alcohol is sold.
9. The applicant must not contact and/or approach any Crown witness by any means whatsoever unless through his legal representative.
10. He is not to apply for any new passport or travel document.
11. He is not to go within 200 metres of any point of departure from the Commonwealth of Australia.
12. An acceptable person is to enter into an agreement under which he or she agrees to forfeit $20,000 if the applicant fails to appear before court in accordance with the bail acknowledgement.
[6]
Pre-release requirements
The condition numbered 12 is specified as pre-release requirement for the purposes of s 29 of the Bail Act 2013. It must be complied with before the applicant is released on bail.
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: 03 July 2019
Parties
Applicant/Plaintiff:
Kane
Respondent/Defendant:
Director of Public Prosecutions
Cases Cited (2)
Application in this Court
This Court has been asked to exercise its powers under s 67(1)(e) of the Bail Act 2013, to hear the release application. In so doing, the application is determined afresh by this Court. It is not an appeal from or a review of, the decision of the primary Judge: R v Kugor [2015] NSWCCA 14 at [4]. However, it may be appropriate, and the Court is not precluded from, having regard to the judgment and findings made in the determination of the primary Judge: Viavattene v R [2018] NSWCCA 197 at [3].
Accordingly, the application is to be dealt with by having regard to the provisions in Division 2 of Part 3 of the Bail Act.
Section 17 of the Bail Act requires that the Court assess any bail concerns. As is becoming an almost standard approach, the Crown has nominated each of the bail concerns listed in s 17(2)(a)-(d) of the Bail Act as being unacceptable risks. However, the Crown agreed before the primary Judge and does not demur on this application, that these bail concerns can be adequately addressed by conditions, with one exception: namely, the risk that the applicant would fail to appear at the Tweed Heads Local Court on 26 June 2019, when the proceedings are next listed.
In considering this bail concern, it is necessary to have regard to the matters set out in s 18 of the Bail Act.