[2014] ACTSC 372

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - Presumption of bail - Accessory after the fact not an offence of actual or threatened violence - Applicant breached previously imposed bail conditions - Applicant breached court orders - Whether totality of factors amounts to "special or exceptional circumstances"

Bail Act 1992 (ACT), ss 9A, 9B, 9D, 22, 23A, 43

Human Rights Act 2004 (ACT)

Burton v The Queen (1974) 3 ACTR 77

In the matter of an application for bail by Massey [2008] ACTSC 145

Re an Application for Bail by Allen [2009] ACTSC 64

R v Smith [2012] ACTSC 146; (2012) 269 FLR 233

1. Following a trial by jury, Todd William Elphick was acquitted of one count of causing damage to a building by fire, namely arson, and one count of threatening to damage a building by fire, which building belonged to another person, namely a threat of arson.

2. He had, however, earlier pleaded guilty to other charges which broadly arose out of the same circumstances. These charges were two counts of contravening a protection order to which he was subject, stalking and attempted arson. He is to be sentenced for these offences on 12 February 2015.

3. Mr Elphick was arrested for the arson offence and also for one of the counts of contravening protection order on 10 July 2013 and has remained in custody since then.

4. Following the findings of the jury acquitting him of the two charges to which I have referred, he has now applied for bail.

5. It is necessary, briefly, to set out the statutory circumstances in which this bail application is to be made.

6. At the time of Mr Elphick's arrest on 10 July, 2013 for the charge of arson and one of the counts of contravening a protection order he was on bail for a serious offence. Ultimately, that serious offence did not proceed, but he was convicted and sentenced for being an accessory after the fact of a more serious offence when he assisted Kai Yuen, of leaving the scene of a murder for which Mr Yuen was later convicted, Mr Elphick believing that Mr Yuen had committed a related offence of intentionally and unlawfully using an offensive weapon against another person likely to endanger human life and with the intention of allowing Mr Yuen to escape apprehension or prosecution.

7. On 30 July 2013, Mr Elphick was sentenced to seven months and sixteen days' imprisonment, backdated to 15 December 2012, which appears to have represented all the pre-sentence custody, although it included some twenty days during which Mr Elphick was in custody also for the current offences.

8. As a result, Mr Elphick, is subject to s 9D of the Bail Act 1992 (ACT), which provides that he may not be granted bail unless I am satisfied that special or exceptional circumstances exist favouring the grant of bail. I shall deal with that shortly.

9. The question was also raised as to whether there was a presumption in favour of bail (s 9A of the Bail Act), or whether there was no presumption for bail (s 9B of the Bail Act. This is because, under s 9B of the Bail Act, the presumption in favour of bail does not apply where a person charged with contravening a protection order has, in the previous ten years, been found guilty of an offence involving violence or threat of violence.

10. The only relevant offence on Mr Elphick's record is the offence of being an accessory after the fact. The question arises as to whether that is an offence of violence or threatened violence.

11. In R v Smith [2012] ACTSC 146; (2012) 269 FLR 233 at 241-4; [45]- [61], I considered the meaning of "an offence involving actual or threatened violence". The question here is whether the assistance to a person who has already committed an act of violence or threatened violence is, itself, an act "involving" violence or threatened violence.

12. The point is not an easy one to resolve and I have not, given the time available for the application, been favoured with detailed submissions on the issue. Not without some hesitation, I am not satisfied that the offence of accessory after the fact, even where the principal offence involved significant violence, is an offence "involving violence or the threat of violence", it seems to me that in this context "involving" must mean some direct relationship between the actual offence and the violence or threatened violence.

13. This would be a consistent interpretation with a value placed by the Human Rights Act 2004 (ACT) on the liberty of persons. Accordingly, it seems to me that there is, under s 9A of the Bail Act, an entitlement to bail for Mr Elphick, unless I am satisfied that refusal is justified considering the matters mention in s 22 of the Bail Act.

14. Evidence was given by Mr Elphick and by his step-father. His step-father was currently living at Banora Point in Northern New South Wales and proposed that Mr Elphick should travel with him to his home there and reside with him during the remand period. He said he had spoken to Mr Elphick a number of times about that proposal and Mr Elphick was keen to do so.

15. Relevantly, but understandably, Mr Elphick's step-father was supportive of Mr Elphick and keen to do whatever he could to help. He had, in fact, arranged an airline ticket for Mr Elphick to fly to the nearest airport for the purposes of taking him home should bail be granted.

16. In cross-examination, he agreed that it would not be realistic for him to prevent Mr Elphick from having access to telephones or making contact with the victims of the outstanding offences. He believed, however, that Mr Elphick had no intention of making such contact. He also agreed that, should bail be granted on conditions, he would make contact with the relevant authorities should Mr Elphick breach any of these conditions.

17. Mr Elphick said that, if he was granted bail, he intended to live with his mother and step-father, thus affirming the evidence of his step-father. He intended to obtain employment and recognised that he would have some difficulty because he had no driver license. He indicated, however, that employment in his industry as a roofing contractor usually commences at about 7:00 am and his mother and step-father commence work at 8:00 am, so they would be able to transport him to work. He had already arranged for his tools of trade to be transferred to the home of his mother and step-father.

18. He said that he had given careful thought to the attitude and behaviour he showed to the victims and he recognised that he should only make contact with them through the proper channels. He certainly intended to continue with the proceedings in the Federal Circuit Court to obtain access to, and care of, his daughter, but he had no intention of making direct contact with the victims.

19. In cross-examination, he acknowledged that he had breached his bail and that prior to his arrest he had, despite the court issued protection order, contacted the victims in excess of fifty times. He also agreed that the proceedings over access to his daughter had been heated. He expressed the wish not to return to gaol and he acknowledged that he would respect any bail conditions.

20. First Constable Allan Moore also gave evidence. He produced a detailed list of breaches of bail committed by Mr Elphick. He also produced his criminal record. First Constable Moore reported, as required, under s 23A of the Bail Act, the concerns of the victims should be Mr Elphick be granted bail.

21. He indicated that they were very concerned that they would be subject to more offending and harassment, particularly as their place of residence was known to Mr Elphick. He reported that the protection orders were no longer in place and, although the victims might attempt to obtain further protection orders, he recognised that given that Mr Elphick had been in custody for about seventeen months with no direct contact between him and the victims, that may prove difficult.

22. In In the matter of an application for bail by Massey [2008] ACTSC 145, I considered the meaning of "special or exceptional circumstances" and said (at [8])

... the applicant has, in my view, to establish that there is some unusual or uncommon circumstances which justify the granting of bail ...

23. I also held (at [28]) that even if the factors relied upon by the applicant do not, in themselves, amount to special and exceptional circumstances, it is also clear that such circumstances may exist as a result of the interaction of a variety of factors, each of which might not be regarded as special or exceptional, thus a court has to consider the totality of the factors. See also Re an Application for Bail by Allen [2009] ACTSC 64.

24. Mr R Livingston, who appeared for Mr Elphick, submitted that the following combination of circumstances amounted to special or exceptional circumstances favouring the grant of bail:

(a) As the facts relating to the further offences were all agitated in the trial, I have the full facts and can assess the seriousness of the offences.

This I accept. I also accept that so far as the counts of breaching the protection orders are concerned they were constituted by harassing telephone calls, and while I do not minimise the effect that these would have had on the victims, they do not involve direct physical contact or threats of violence.

(b) Mr Elphick has served now seventeen months in custody and it was submitted that this would approach the length of the minimum term that Mr Elphick is likely to be required to serve following the sentencing for the remaining offences to which he has pleaded guilty.

I accept that he has been in custody for a significant period of time, although it is difficult to say that he has served the minimum period that it is likely to be imposed. Having regard to the seriousness of the threatened arson offence, and the seriousness with which stalking offences are usually considered, as well as breaches of protection order, it is not possible with certainty to say that seventeen months would be the period, or more than the period, for which he would have to spend time in custody. But I accept that, in all the circumstances, it may well be unlikely that he would be required to spend a minimum period of much more than eighteen months in custody. Without minimising the seriousness of the offences, I recognise the particular circumstances of them as briefly summarised earlier.

(c) There is a totality issue, since Mr Elphick was dealt with in the ACT Magistrates Court for offences associated with the circumstances of the totality of offending that needs to be considered. These offences, driving offences, resulted in a total term of imprisonment of ten months. It was suggested that, had Mr Elphick been sentenced for all the offences at the same time, the question of totality would moderate the whole of the sentencing in the circumstances.

While that is true, it must also be recognised that there was some, albeit relatively short period at the beginning of his custodial term, which related to a completely different offence and there has been a complete concurrency with the sentence imposed in the Magistrates Court and the period of his custody.

(d) It has also been noted that there has been some delay in finalising this matter. His trial, which originally commenced in June 2014, was aborted for reasons beyond Mr Elphick's control and, accordingly, notwithstanding that he was in custody, the trial could not be completed until December this year.

25. It seems to me that the requirement for special or exceptional circumstances under s 9D of the Bail Act is not a "jurisdictional" requirement, as for example, the preconditions under s 43 of the Bail Act are. It is a matter that needs to be taken into account with the consideration of the other bail matters under and, in particular, s 22 of the Bail Act.

26. Nevertheless, I accept that, were Mr Elphick entitled to bail by the application of the relevant criteria, these matters would amount to special or exceptional circumstances. The question then is whether Mr Elphick should be granted bail.

27. As noted above, I do not find that he has yet necessarily reached the point where the proper exercise of a sentencing discretion would not require him to serve more than the seventeen months he has now served in custody, particularly having regard to the concurrency of the Magistrates Court sentences with his period of custody.

28. Nevertheless, I recognise that that period is approaching. Had it not been possible to sentence Mr Elphick within a month or two, it may well be appropriate to hold that he is then likely to be required to spend much more, if any more time, in actual custody.

29. Given that circumstance, it does not seem to me that there is a real likelihood that Mr Elphick would not appear in Court for sentence, given that, in all the circumstances, a further period of immediate imprisonment is unlikely. The risk of him not appearing in Court must be low. Nevertheless, I do note that the proposed arrangements mean that he will not be in the ACT, and should he fail to appear it will be more complicated and, of course, more expensive to arrange for him to return for sentence.

30. The matter of most concern is whether, when released on bail, he might harass the victims. He frankly acknowledged in his evidence before me at the trial that his harassing telephone calls were the result of "stupidity and immaturity". They were, however, in the circumstances of the heated situation where there was a battle between him and his former partner over access to their child.

31. While he was in custody that is able, to some extent, to be contained, but when he is released from custody that may well become somewhat more problematic.

32. I note that the Federal Circuit Court has listed 19 March 2015 as the date for further consideration of the proceedings. Nevertheless, Mr Elphick has, he frankly told me, the capacity to apply on fourteen days' notice to have the matter relisted earlier.

33. I initially considered whether, as a condition of bail, I could require him not to make such an application but, it seems to me, that such a condition would interfere with the proper workings of another court and it would be inappropriate for me to do so. That means that there is a possibility that, over time, particularly as we are moving into the Christmas period, emotions may heighten and there is a risk that the volatile behaviour of Mr Elphick, to which independent witnesses attested at his trial, may resurface.

34. While it is unlikely that Mr Elphick has the present telephone contact details of the victim, it was pointed out that as he and his former partner were together for eight years, they would have a number of friends in common, through which Mr Elphick may well be able to access details of the relevant telephone numbers and, of course, there are other social media outlets where some contact could be made.

35. To some extent that would be stupid because the proof of such contact would not be difficult through social media and the evidence of the trial shows that there are sophisticated means of proving telephonic contact. Against this, however, I am concerned that Mr Elphick has, since 27 April 2010, ten breaches of bail on his record.

36. Indeed, six of them occurred between 21 January and 24 May 2014. This shows a very disturbing trend. If one adds the breaches of court orders constituted by the two counts of breaching a protection order to which he has pleaded guilty it demonstrates a very significant disregard to the orders of the Court.

37. I accept, too, that supervision of bail conditions is more problematic when a person subject to bail conditions is out of the jurisdiction than when living in Canberra. On the other hand, I accept that there is much to be said for Mr Elphick being out of Canberra, where direct physical contact with the victims is much less likely, though that, in itself, will create problems if care of the child of Mr Elphick and his former partner becomes shared between them. That is, perhaps, a matter for later consideration and not directly relevant to this bail application.

38. While the situation is not as immediate as in Burton v The Queen (1974) 3 ACTR 77, I note that the sentencing is now less than two months away.

39. I do not consider that any of the other matters in s 22 of the Bail Act are relevant in the circumstances.

40. Having given careful and anxious thought to the circumstances involved, and giving due weight to the often stated point that accumulated breaches of bail and court orders must lead to courts being sceptical of commitments to comply with bail conditions, past behaviour being, to some extent, a significant pointer to future contact, I am satisfied that refusal of bail is justified in the circumstances and I dismiss the application.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.