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[2020] VSC 578
Supreme Court of Victoria
2020-05-21
Lasry J
Original judgment source is linked above.
CRIMINAL LAW - Application for bail - Charges of Schedule 2 offences while subject to a community correction order for Schedule 2 offences - Allegations of family violence - Family violence intervention order in place - Whether exceptional circumstances established - Whether unacceptable risk - Delay caused by COVID-19 pandemic - Onerous conditions on remand - Breaches of court orders show risk unacceptable - Bail refused - Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, , , .
1 This is an application for bail by Joel Ilpola (the 'applicant'). On 12 January 2019, he was arrested and charged with attempted rape, sexual assault, persistent contravention of a family violence intervention order ('FVIO'), making a threat to inflict serious injury (three counts), false imprisonment, intentionally causing injury, and common law assault. The allegations primarily arise from an incident involving the applicant's former wife on the previous day.
2 At the time of the alleged offending, the applicant was subject to a 12-month community correction order ('CCO') imposed in the Ballarat Magistrates' Court on 11 October 2018, following conviction for recklessly causing injury, contravening an FVIO, intentionally damaging property, and failing to answer bail. The complainant in those matters is the same as in this case.
3 The applicant has been refused bail twice in this matter by his Honour Judge Lacava in the County Court, first on 30 October 2019 and again on 15 April 2020. The applicant has been committed to stand trial on 22 June 2020 in the County Court sitting at Ballarat. However, as a result of that Court's response to the COVID-19 pandemic, circuit listings are unlikely to proceed until next year, and the current trial date is to be vacated.
4 Attempted rape and persistent contravention of an FVIO are Schedule 2 offences within the meaning of the Bail Act 1977 (Vic) (the 'Act') as is any offence against the Act itself, including the offence of failing to answer bail. [1] As a result, the applicant is accused of committing Schedule 2 offences during the period of a CCO imposed in respect of another Schedule 2 offence. The Act therefore requires that I refuse bail unless satisfied by the applicant that exceptional circumstances exist and that would justify the grant of bail.[2]
5 The applicant and the complainant were previously married but are presently separated. They have a one-year-old daughter from that relationship.
6 At the time of the alleged offending, there was in place a final FVIO prohibiting the applicant from, among other things, contacting the complainant or their daughter, or approaching within 100 metres of them or 200 metres of their residence. The order was issued on 21 November 2017 and operates until 11 April 2027.
7 The complainant resided in Bacchus Marsh with the child and her three other children from a previous relationship. The applicant apparently had retained a key to that residence following the end of their relationship.
8 It is alleged that between 23 December 2018 and 11 January 2019, the applicant repeatedly contravened the FVIO by way of telephone contact with the complainant and by attending her residence on a number of occasions. The balance of the charges arise from an incident at the complainant's residence on 11 January 2019.
9 On that day, at about 11 am, the complainant was at home with her son, when she received a telephone call from the applicant. He is alleged to have said that he was coming to her residence and would 'knock out the teeth' of the complainant, her son and the complainant's former partner if they were present at the house.
10 Later that afternoon, the complainant took her son to her sister's house. When she returned to her residence around 6 pm, the applicant inside the premises, drinking beer and lying on a mattress in the lounge room. He is alleged to have told her that he was waiting there to 'smash' her former partner and the complainant's son. The complainant says that she screamed at the applicant and said that she was calling the police. She walked outside the residence, pretending the police were present in their street.
11 The applicant is alleged to have pulled her back inside and closed the front door, which trapped her in the door frame as it closed. He then grabbed her left arm and used his other hand to cover her mouth and nose to prevent her from screaming. It is further alleged that the applicant then threw the complainant to the floor and assaulted her by punching her head and face more than 10 times.
12 Following the assault, the applicant then took the complainant's vehicle to attend a bottle shop. During the time, the complainant called her sister and told her that things were 'going down' with the applicant and asked her to check on her in the morning. She then hid her telephone.
13 At about 10 pm, the applicant returned to the residence and continued to drink in the lounge room. He made sexual advances toward the complainant, which she rejected. It is alleged by the prosecution that he had then obtained a bottle of lubricant and his mobile phone, which is said to have been playing a pornographic video.
14 The applicant is alleged to have said to the complainant that she should 'watch the video and relax' and then turned her on her front and pulled up her nightie. It is alleged that he put lubricant on his penis and attempted to penetrate the complainant's anus. He was unsuccessful as the complainant was 'squirming' and telling him no. He tried a further three times before he got up and went to a rear bedroom from which he did not return. The complainant fell asleep.
15 The next morning, the complainant awoke to the applicant leaving for work. She called her sister and disclosed the events of the previous night. Her sister encouraged her to report the matter to the police.
16 The complainant apparently went to the beach on that day and returned home at 5 pm to find the applicant again present in her living room. He is alleged to have verbally abused her and made disparaging, sexual remarks about her.
17 The complainant left the residence for her sister's house and later attended the Bacchus Marsh Police Station to report the incident. While there, she was observed to have bruising on her arms and face, which were photographed. A medical examination was conducted subsequently and noted swelling, bruising and grazing on the complainant's face, back, arms, right hand and left leg. As I follow it, there was no evidence of sexual injuries.
18 At 9:38 pm. the applicant was located at the complainant's residence and was arrested. A number of items were seized or recovered from the residence. The result of forensic analysis of those items is presently outstanding and apparently will be of some significance in relation to the issues to be raised at the trial.
19 In a record of interview at the Bacchus Marsh Police Station, the applicant denied the allegations put to him, save that he agreed that he had attended the complainant's residence on three occasions in the preceding three weeks, including that day. He said he had gone to the residence to mow the lawn.
20 The applicant is 32 years old. As stated, he was previously married to the complainant and has one child from that marriage. He has a further four children from a previous relationship, aged six, eight, 10 and 12, who have been in the care of the applicant's mother since 2015.
21 A sworn statement from his mother was included in the material filed in this application. In it, she indicates that she commenced primary care duties for the applicant's children after their mother left the applicant and because the applicant's work commitments were such that he was unable to provide stability for his family on his own.
22 The applicant has worked as a furniture removalist and truck driver and is said to have held steady employment throughout his adulthood.
23 The applicant grew up in National Park, Tasmania with his parents and siblings until the age of 23, when he moved to Burnie for work. He then moved between Queensland and Tasmania before moving to Victoria in 2018.
24 The applicant's mother now resides in Blackheath, New South Wales in the Blue Mountains. The applicant proposes to reside with her and his four eldest children should he be granted bail.
25 The applicant's prior criminal history discloses one conviction in this jurisdiction from 11 October 2018 when a 12-month CCO was imposed as was a $1,000 fine. The conditions of the CCO required the applicant to undertake treatment for alcohol abuse and attend offending behaviour programs.
26 The applicant also has a criminal history in Tasmania and in Queensland, largely limited to failures to appear pursuant to undertakings given to the court, and he has a conviction for common assault in 2009. The applicant's current period on remand represents his first time in custody apart from six days in police custody in October 2018.
27 The applicant is entitled to bail unless the Act requires that the Court refuse bail.[3] In the present application, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. Additionally, the Court must be satisfied that the applicant does not pose an unacceptable risk if granted bail.[4] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[5]
28 In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances contained in s 3AAA of the Act.[6] In order to reach the threshold of exceptional circumstances, the factors relied upon by the applicant 'must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail'.[7]
29 Exceptional circumstances may be established by reason of a single exceptional circumstance or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial or unusual features of the alleged offending or investigation.[8] Whilst it is a high threshold, it is not an impossible standard to reach.[9]
30 In the present application, the applicant raised the effect of the COVID-19 pandemic on the court process generally and on bail applications. It is accepted that COVID-19 is a surrounding circumstance to be taken into account when determining an application for bail. In the recent decision of Re Diab [2020] VSC 196, Beach JA, sitting in the Trial Division, said the following in relation to the relevance of the COVID-19 pandemic concerning applications for bail:
31 If the Court is satisfied as to the existence of exceptional circumstances, then it must apply the 'unacceptable risk test' referred to in s 4E(1)(a) of the Act and, pursuant to ss 4E(1) and 4E(2), the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the application would, if released on bail -
32 In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the 'surrounding circumstances' contained in s 3AAA and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
33 Further, if the applicant in this matter is charged with family violence offences, s 5AAAA of the Act requires the Court to consider whether, if released on bail, there is a risk that the applicant would commit family violence offences and whether the risk could be mitigated by the imposition of a condition of bail or the making of an FVIO. As the stated, the applicant is already subject to a final, no-FVIO protecting the complainant and her daughter, which expires on 11 April 2027.
34 Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B the Act.[11]
35 Mr Page, on behalf of the applicant, relied on the following matters in combination to demonstrate the existence of exceptional circumstances justifying the grant of bail.
36 As stated, the circuit trial of this matter was set down for 22 June 2020, but it will be adjourned to a date that is presently unknown, but likely in the first half of 2021. However, that is no by means a guarantee. The resumption of jury trials in the County Court and the Supreme Court will depend on the circumstances of the COVID-19 pandemic.
37 Mr Page conceded that there would be some priority afforded to this case once trials recommence, including the fact that the applicant is presently in custody and the charges relate to family violence and sex offences.
38 I think the best that can be said is that there is some prospect that the matter might be listed in the first half or middle of 2021, which would result in a delay of some two and a half years. There really can be no question that that is an unusually lengthy delay.
39 However, if convicted of these matters, the applicant would face a substantial term of imprisonment given his history and the nature of the offences. It is not seriously contended that if bail were refused, his time on remand would be in excess of the likely minimum term before eligibility for parole.
40 I have already referred to the fact that the applicant has been on remand for some 16 months as at the date of this application and that it is effectively his first period of time in custody, other than the six days in 2018. It was put on his behalf that his time in custody will have had a substantially salutary effect on him, although there has not necessarily been evidence about that before this Court.
41 The applicant has the support of his mother, Ms Paivi Ilpola. By way of a statutory declaration dated 7 May 2020, Ms Ilpola indicated she would be willing to have the applicant reside with her and his four children at an address in Blackheath, New South Wales. According to her declaration, the proposed bail address is a four-bedroom, two-bathroom property with enough room to accommodate the applicant. In addition, there is a 24-hour police station in the nearby town of Katoomba.
42 Ms Ilpola has made a number of enquiries for community support services within the Blue Mountains and surrounding areas to assist the applicant should he be granted bail, including behaviour change programs, psychological counselling, medical services and employment opportunities. Having made those enquiries, which is to Ms Ilpola's credit, there is nothing further in the way of tangible arrangement that would apply in the event that the applicant was to be released on bail.
43 The applicant also has the support of his brother, Mikel, who resides in North Sydney and who is described by the applicant's mother as a positive influence on his life, such as that he would be able to support the applicant in relation to his mental and emotional wellbeing. Ms Ilpola confirmed that she would drive the applicant to appointments and would arrange transport from Victoria to New South Wales.
44 Further, the applicant relied on the geographic distance between the bail address and the complainant's residence in support of a grant of bail.
45 Counsel on behalf of the applicant conceded that the alleged offending is serious but submitted that he has some prospect of acquittal given that the prosecution case largely relies on the reliability of the complainant as there is no corroborative forensic evidence as the results are pending. It was put, in effect, that the prosecution could not be said to be strong. I am not sure that that necessarily follows by any means, and I would not categorise the case as a weak one.
46 It is well known now in these applications that one consequence of the COVID-19 pandemic has resulted in a number of restrictions placed on prisoners, including a prohibition of one-on-one person visits. It has also been recognised that there may be anxiety that befalls prisoners regarding the risk COVID-19 entering the prison system, which creates an additional burden.
47 The applicant, through his counsel, further submitted that there is a surety of $10,000 available to the applicant, which represents his father's cash savings. In her statutory declaration, Ms Ilpola also stated that she and his father are willing to provide their unencumbered, jointly owned home in Tasmania as a surety, which is currently valued between $300,000 and $320,000.
48 Finally, it was put on behalf of the applicant that he is not an unacceptable risk by virtue of the above factors and that the imposition of strict bail conditions, including reporting, surety, compliance with the existing FVIO, and a prohibition on entering the State of Victoria except to attend court would be appropriate.
49 On behalf of the respondent, it is argued that the applicant has failed to demonstrate exceptional circumstances that would justify a grant of bail and, further, if released on bail, there is an unacceptable risk that the applicant would endanger the safety or welfare of others, commit an offence whilst on bail, and fail to surrender into custody in accordance with the conditions of bail.
50 In his evidence on this application, the informant expressed concern that the applicant proposes to reside with his four children at the address in New South Wales, citing an assessment by Child and Youth Services Tasmania that the applicant posed a risk to harming his children. This assessment followed an investigation into an incident of alleged physical violence against his then-seven-year-old daughter. That report apparently identified the applicant as a high-risk family violence perpetrator.
51 The informant also took issue with the appropriateness of the proposed bail address being in New South Wales because it makes it difficult for Victoria Police to effectively monitor compliance with bail conditions.
52 As to the risk of endangering the safety or welfare of others, it is noted that the alleged offending occurred in the context of the applicant letting himself into the complainant's house with a spare key. The informant made enquiries and indicated that the complainant is fearful of the applicant and has a belief that he would locate her and commit further offences if released on bail.
53 As to the risk of the applicant committing offences whilst on bail, the informant referred to the serious nature of the alleged offending and observed that the allegations represent an escalation in his offending behaviour despite his recent involvement with police. It also occurred during the period of an FVIO. In those circumstances, it was put that a condition that requires compliance with the FVIO would not mitigate the risk in any substantial way.
54 Further, the applicant has a prior convictions for failing to answer bail in all three jurisdictions of Victoria, Queensland and Tasmania. The applicant also has no ties to this jurisdiction.
55 As I have previously indicated, I am required to examine the relevant surrounding circumstances of s 3AAA for the purposes of dealing with this matter, which are as follows.
56 The delay is likely to be of the order of two and a half years to three years before this matter is heard, which is a very substantial delay indeed. The fact that it is occurring frequently in many applications for bail as a consequence of the COVID-19 pandemic does not mean that it is unexceptional.
57 I am persuaded that the delay that is likely to occur in this case, coupled with the onerous conditions of custody, both of which exist because of the pandemic, do result in a finding that the applicant has established that exceptional circumstances exist.
58 However, that is not the end of the matter. The next question is whether the prosecutor has established that there is an unacceptable risk if the applicant were released on bail.
59 In relation to the matters set out in s 5AAA of the Act, I am of the view that if the applicant were to be released, there is a risk that he would commit a family violence offence. I am not of the view that that risk could be sufficiently mitigated by the imposition of conditions, bearing in mind that an FVIO is already in place.
60 Ultimately, at the time of this alleged offending, the applicant was subject to a CCO in relation to similar offending against the same complainant as well as an FIVO made for the protection of the complainant. In those circumstances, notwithstanding the relatively long list of conditions that was proposed on behalf of the applicant, I am of the view that the prosecutor has discharged the onus of establishing that, if released on bail, the applicant would create an unacceptable risk and the imposition of conditions would not mitigate that risk so that it is no longer unacceptable.
61 In those circumstances, the application for bail is refused.
[1] Bail Act 1977 (Vic) s 30 and sch 2 items 9, 19, 30 and 31 ('Bail Act').
[4] Ibid ss 4D(1)(a) and 4E.
[7] Re Sam [2017] VSC 91 [22].
[8] Re CT [2018] VSC 559.
[10] Re Diab [2020] VSC 196 [38].