HIS HONOUR: Peter Tsallas applies for bail. He has been in custody since the date of his arrest on 21 December 2016 charged with the following offences:
1. Sexual intercourse with a child under the age of 16 years.
2. Groom child for unlawful sexual activity >14 years 14 years 14 years < 18 years to participate in an act of prostitution.
These offences are alleged to have been committed between 14 and 15 April 2016 in the following circumstances.
Towards the end of 2015 the victim posted a number of online profiles on various sexual meeting sites. The main site that she used was www.seeking arrangement.com. This website suggested that what it characterised as "Sugar Babies" could enjoy a life of luxury being pampered with fine dinners, exotic trips and allowances by what the site referred to as "Sugar Daddies". In order to be able to post her profile on this site, the victim gave her age as 18 years old.
On 14 April 2016 the victim was staying with a friend in Thornleigh. The applicant and the victim made contact with each other at this time. The victim sent three photographs of her buttocks whilst wearing underwear in seductive poses to the applicant. He then requested her to send him naked photographs, which she did. After receiving these photographs the applicant asked the victim, "You 16 or 15?" The victim replied. "16". Thereafter the conversation continued with the applicant trying to arrange a meeting with the victim for sex in exchange for $500. During one such conversation the applicant indicated that he had a friend who liked 15 year olds. At this point the victim informed the applicant that she was 15 and offered to send him a copy of her student ID to confirm this.
Notwithstanding that the applicant had been told that the victim was 15, he continued to arrange to meet her for sex in exchange for money. At one point the applicant sent a message saying, "It's a little risky for me as your [sic, you're] 15 not 16 but I want to do it. Will just have to be indoors."
The applicant then requested the victim to send him a photograph of herself with her top down showing her face and her breasts. She did so. The applicant replied saying, "It's amazing. Your fucking tits wow. I'd fuck you even if you were 13. Just need to be safe. I so love teen sluts. OK. We're [sic, where] do we meet!" The applicant and the victim thereafter continued to make arrangements to meet with the applicant at one point asking the victim if she had any 14 year old friends who would want to join in. They agreed on a price of $500.
Shortly after midnight on 15 April 2016, the applicant and the victim met at Thornleigh Railway Station. They drove north in his car. The applicant asked the victim to play with his penis. The victim did so.
The applicant stopped his vehicle in a secluded location believed to be at Berowra. The applicant and the victim got into the back seat of the car where they started kissing. They undressed. The victim performed oral sex upon the applicant while he digitally penetrated the victim's vagina. They proceeded to have sexual intercourse.
The applicant then drove the victim back to a street in Thornleigh. He gave her $120. She reminded him that the arrangement was for her to receive $500. The applicant said to the victim that he was doing her a favour as she really needed to earn her money and he did not want to spoil her. The applicant then drove away.
In May 2016, the victim's phone came into the possession of the police and explicit photographs and messages exchanged with the applicant were revealed. In December 2016, the victim provided the police with a signed statement. Cell tower records relating to the applicant's phone and E-Tag data relating to his motor vehicle geographically correspond to the version of events provided by the victim.
Following his arrest, the applicant participated in an electronically recorded interview with the police. He admitted exchanging text messages with the victim and meeting her at Thornleigh. The applicant denied engaging in sexual intercourse with her. He told police that they simply went for a drive.
The applicant is charged with a show cause offence for the purposes of s 16B (b)(i) of the Bail Act 2013 and is accordingly required on this application to demonstrate why his continued detention is not justified.
[2]
Crown submissions
The Crown contended that the case against the applicant is strong. His responses over the Internet were knowingly conducted with a girl under the age of 16 years because she had clearly told him her age. The applicant continued to engage with the victim notwithstanding and continued to attempt to arrange a meeting with her for paid sex. It is clear from objective material that the applicant met up with the victim and drove her to the Berowra area. The Crown contends that in light of the preceding arrangements it would not be accepted that sexual activity between them did not occur as the applicant maintains.
The Crown submitted that there is a substantial risk that the applicant might fail to appear. The grooming offence carries a maximum penalty of 12 years with a standard non-parole period of 4 years. A substantial custodial sentence is said by the Crown to be certain following any conviction for this offence. The applicant resides alone and has no criminal record. He operates his own business and has community ties. The prospect of his first custodial sentence and the nature of the offences was said by the Crown to support an inference that the applicant would not appear if released on bail.
The Crown also contended that there are significant risks that if left to his own devices the applicant may continue to meet up with under age victims in similar circumstances.
[3]
Applicant's submissions
The applicant is 40 years of age and has no criminal record of any sort. He is a responsible member of the community with a secure job and good income. He owns his own residence which secures mortgages to a financial institution that he is undoubtedly keen to service. His computer history is available to the police. The site upon which he met the victim is restricted to users of at least 18 years of age and his use of that site is not otherwise illegal or prohibited. He denies the allegation of sexual intercourse with the victim and contends that having regard to the particular circumstances attending the balance of the offending there is no certainty that a custodial sentence would be imposed for those offences alone. He rightly conceded that a similar submission would not be available with respect to the principal charge. There was in this case no suggestion that the applicant's likely time on remand awaiting trial would be inordinately long, and indeed the suggestion was that in the case of offences of the kind in question here, a trial date may be allocated sooner than might otherwise be the case.
The applicant submitted that this combination of factors was sufficient to satisfy the statutory requirement that he show cause why his detention was not justified.
[4]
Consideration
In JM v R [2015] NSWSC 978 at [40], Garling J noted that "the inclusion of a requirement to show cause does not mean that the legislature has declared an intention that bail will not ordinarily or normally be granted where a show cause requirement exists". However, as Hamill J observed in R v Xi [2015] NSWSC 1575 at [43], "the cases that have been decided by appellate courts show that the show cause requirement establishes a significant hurdle to an applicant seeking bail when s 16A is engaged".
It is convenient to recall what was said by the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20] - [26] as follows:
"[20] Two matters may be noted and emphasised from this overview of the provisions of the Bail Act 2013. First, if the offence in question is a 'show cause' offence, there is a two-step process: cause must first be shown as to why detention is not justified under Div 1A of Pt 3 and, if it is shown, the bail authority must then consider the 'unacceptable risk' test in Div 2 of Pt 3. Secondly, there is an exhaustive list of matters in s 18 that must be considered in relation to the latter but the Bail Act 2013 does not prescribe what must or might be considered in relation to the former.
[21] The Director drew the Court's attention to the judgment of McCallum J in M v R [2015] NSWSC 138. Her Honour was dealing with a bail release application by a person charged with a number of offences, at least one of which (murder) was a show cause offence. The matter came before her Honour in the Bails List some two weeks after the amendments made by the Bail Amendment Act came into force.
[22] Her Honour noted the various provisions within Div 1A and Div 2 of Pt 3 of the Act, observing (at [7]-[8]) that the 'apparent simplicity of a two-stage approach is illusory' and that 'it is difficult to conceive how an applicant could show cause without addressing any relevant bail concerns'. She continued (at [8]):
'The issue whether an applicant has shown cause in my view must inevitably be informed by the outcome of the risk assessment, since the Act contemplates that the detention of a person who poses an unacceptable risk of the kind identified is justified. Conversely, it is difficult to conceive of a finding that an applicant had failed to show cause in circumstances where there was no unacceptable risk. The absence of any unacceptable risk would, I think, inevitably point to the conclusion that the detention was not justified, bearing in mind the common law principles to which I have referred.'
[23] McCallum J acknowledged that s 16A must be construed as having some work to do. She explained:
'[13] … In my view, the section should be understood to have the object of instructing the bail authority that, in the case of a show cause requirement, the circumstance that triggered the requirement is likely to inform the assessment of any bail concerns and the evaluative judgment as to the acceptability of any risk established. In some instances, the circumstance giving rise to the show cause requirement is in itself likely to reveal a bail concern. For example, s 16B(1)(d) specifies, as show cause offences, a series of offences relating to firearms, pistols, prohibited weapons and the like. Similarly, s 16B(1)(f) specifies as show cause offences offences under the Drug Misuse and Trafficking Act 1985 (NSW) involving the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug.
[14] The Act guides the court that it must have regard to the common or notorious features of such offences. For example, a strong Crown case as to the commission of an indictable offence involving the unlawful possession of a pistol in a public place would guide the Court in the assessment of a bail concern as to the safety of the community. Similarly, a strong Crown case alleging an offence under the Drug Misuse and Trafficking Act of the kind to which I have referred would guide the Court as to the likelihood of an applicant re-offending, the insidiousness of an addiction to some prohibited drugs, such as Ice, being a matter of notoriety.
[15] Importantly, I would construe s 16A as imposing on an applicant the task of persuading the Court that any such obvious bail concern did not give rise to an unacceptable risk of the kind specified in the Act. In saying so, I do not mean to suggest that the Act imposes any formal onus of proof in the traditional sense. The Act makes it clear in s 32 that any matter that must be decided by the bail authority in exercising a function in relation to bail is to be decided on the balance of probabilities, but the rules of evidence do not apply in that task. Rather, the bail authority may take into account any evidence or information it considers credible or trustworthy in the circumstances: see s 31 of the Act.
[16] But the Court should not approach the show cause requirement, in my view, on the ground that an applicant must go further in order to show cause why his or her detention is not justified or bears any higher onus than to persuade the Court that there is no unacceptable risk having regard to the bail conditions that could reasonably be imposed to address any bail concerns in accordance with s 20A.'
[24] We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well.
[25] It is important, however, that the two tests not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test. The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment.
[26] The present case provides an example of why it is important to bear in mind the two-stage approach Parliament has prescribed in relation to bail applications concerned with offences of the type listed in s 16B in that here there is a matter that is relevant to the show cause test that is not available to be considered in relation to the unacceptable risk test. The jury's verdict of guilty is not within any of the matters listed in s 18; yet it is plainly germane to the question whether cause can be shown that his continuing detention is unjustified, since the presumption of innocence, which operated in his favour before the jury returned its verdict, has been rebutted by that verdict."
In Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190 the Court said this at [22];
"[22] As was submitted by the Crown, there is nothing particularly special or unusual in what the respondent has put before the Court. Age, lack of criminal antecedents, ties to the community and strong family support do not amount to showing cause. This is particularly so when one has regard to the seriousness of the offence with which the respondent has been charged [murder] and the apparent strength of the Crown case. In view of the conclusion which we have reached, it is not necessary to consider the question of unacceptable risk."
It is possible, if not on one view inevitable, that minds may differ in any particular case about how these authorities should play out in the difficult discretionary exercise with which I am presently concerned. It is regrettable that the Parliament did not see its way clear to offering some guidance as to the matters that should be taken into account in assessing the show cause requirement, or better still to circumscribing a test such as a special or exceptional circumstances test, or an inclusive test specifying factors that an applicant would have to satisfy or demonstrate applied in his or her case, in order to show cause as required. (A special or exceptional circumstances test is still to be found in s 22 of the Act but not relevantly for present purposes).
It is not unusual in a consideration of whether or not an applicant for bail has satisfied the show cause requirement that the decision depends upon a comparison between a strong Crown case on the one hand and the prospect of an unacceptably long period on remand on the other hand. In the present case I consider that the Crown case is strong and that the applicant faces the inevitability of spending a not insubstantial period in custody if convicted. I am however bound by authority to accept that "there is nothing particularly special or unusual in… lack of criminal antecedents, ties to the community and strong family support". It is not difficult to think of any number of factors that might qualify as satisfying the show cause requirement in most cases, such as impending death from disease or injury, illness that could not properly or adequately be treated in gaol, significant mental or physical disability making custody more onerous, threats of assault or established violence that could not be adequately ameliorated by Corrective Services or the need for protective custody coupled with a lengthy period of remand. Those examples are clearly not exhaustive.
Unfortunately for the present applicant, I am unable to identify anything propounded by the applicant that satisfies me on the balance of probabilities that he has shown cause why his detention is not justified. As the Court in Brooks at [23] was quick to point out, what amounts to changed circumstances "should not preclude the [applicant] making a further application for bail at a later time."
It follows in my view that bail should be refused. It is unnecessary in those circumstances to consider whether there are any bail concerns that might affect the making of a bail decision.
[5]
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Decision last updated: 13 February 2017