Re Sepehrnia [2020] VSC 247 (6 May 2020)

1 The applicant Taha Sepehrnia applies for bail in respect of charges laid by two separate informants/respondents, Detective Leading Senior Constable Cornish ('Cornish') and Detective Leading Senior Constable Cranage ('Cranage'). In the case of each respondent, there is a single charge of rape, along with other charges concerning the infliction of injury, the use of threats, the damaging of property, and other offences.

2 In this case, it is agreed between the parties that I must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of committing a Schedule 2 offence, namely, rape, during the period of a community correction order ('CCO') imposed in respect of another Schedule 2 offence, namely, failure to answer bail.

3 The applicant was remanded in custody on these matters on 14 August 2019, upon the expiry of a sentence of imprisonment he had served for an unrelated matter. He has been in custody since that time. On 20 September 2019, he made an application for bail in the County Court. Bail was refused by Judge Dean on the basis that the applicant had failed to establish exceptional circumstances, and that there was an unacceptable risk of further offending.

4 Commencing on 18 November 2019, the applicant stood trial for some of the matters concerning the respondent Cornish. On 27 November 2019, the jury was discharged without verdict.

5 On 22 January 2020, the applicant made a further application for bail in the County Court. Bail was refused by Judge Hassan on the basis that the applicant had failed to establish exceptional circumstances, and that there was an unacceptable risk.

6 Although trial dates were previously set, due to the effects of the COVID-19 pandemic, the re-trial in the Cornish matter and the trial or trials in respect of all other charges will proceed at a time which is presently impossible to accurately discern. One thing seems clear. The trials are unlikely to take place until next year.

7 In summary, it is the prosecution case that the applicant threatened, assaulted and raped two of his ex-partners, whom I will refer to as MZ and SB, while involved in relationships characterised by controlling and abusive behaviour against each complainant.

8 The applicant commenced a month-long relationship with MZ in July 2016. MZ moved into the applicant's home in Boronia, which he shared with his mother. During their relationship, the applicant is alleged to have threatened to kill and physically harm MZ on multiple occasions, including by pointing a firearm at her and threatening to throw acid in her face. Following an argument on 17 August 2016 in which the applicant is alleged to have physically assaulted MZ by punching her to the face and kicking her in the middle of the back, he allegedly pushed her onto his bed and used a pillow to cover her face before stating, 'Now I'm going to rape you'. It is alleged that he removed the pillow and grabbed MZ around her throat before penetrating her vagina with his penis while MZ cried and screamed 'no'. The assault lasted several minutes, after which time the applicant left MZ alone at his house. She reported the assault (though not the rape) to police the same day but did not make a statement, fearing reprisal from the applicant.

9 Upon learning that she had reported the matter, the applicant allegedly threatened to kill members of MZ's family unless she withdrew her complaint. A family violence intervention order ('FVIO') was subsequently imposed to protect MZ from the applicant. That order has since expired.

10 MZ made a formal statement to police on 31 May 2017, where she disclosed that the applicant had raped her. The prosecution will also rely on consistent statements made by the complainant to friends and family in which she disclosed physical and sexual abuse by the applicant.

11 The applicant was arrested and charged on summons on 25 October 2017 and provided a 'no comment' interview. He was remanded on those charges on 12 February 2018, in addition to other outstanding matters that have since finalised.

12 The applicant commenced a nine-month relationship with SB in March 2017. Throughout their relationship, the applicant is alleged to have frequently damaged SB's property and made multiple threats to kill or physically harm SB and her children. He is alleged to have physically assaulted her on a number of occasions by slapping her, spitting on her, pulling her hair, choking her, scratching her and throwing her to the ground. He is also alleged to have assaulted the complainant's 16-year-old daughter and one of the complainant's friends after he attempted to greet her. On another occasion, he is alleged to have physically detained the complainant within her home.

13 SB ended the relationship in December 2017. In spite of that fact, the abuse is alleged to have continued until the applicant's remand on other matters, including the respondent Cornish matter, on 20 February 2018.

14 It is alleged that sometime between 8 and 28 January 2018, the applicant attended SB's address and forced her into her bedroom and onto her bed before stating, 'You're mine and you will always be mine until the day they pour dirt over you', and 'If I ever find out that you're with another guy I will kill you'. He allegedly then grabbed SB's arm and held it over her head before the pair struggled. He is then alleged to have forcibly penetrated her vagina with his penis while SB cried and screamed for him to stop.

15 The applicant was arrested and remanded in custody in relation to separate matters, including the informant Cornish matter, on 12 February 2018, following which SB made a series of statements to police concerning the alleged offending.

16 The applicant was charged on 22 February 2018 and on a later date as well. He made no comment during an interview with police on 25 July 2018. He was remanded in relation this matter in August 2018.

17 As stated, on 12 February 2018, the applicant was remanded in relation to the charges brought by respondent Cornish and additional outstanding matters. On 18 August 2018, he was sentenced in respect of his involvement in a prison riot to 15 months' imprisonment, with a non-parole period of eight months. 155 days were declared as pre-sentence detention.

18 On 27 September 2018, he was sentenced in another matter by the Ringwood Magistrates' Court to 11 months' imprisonment, with seven months to be served concurrently with the 18 August sentence. He successfully appealed that sentence and on 21 November 2018, was re-sentenced to nine months' imprisonment with seven months concurrent.

19 On 14 August 2019, the applicant's sentences expired and he remained on remand for the matters presently before the Court.

20 My understanding is he has currently spent 252 days on remand referable to the present offending.

21 The applicant is a 27-year-old male of Iranian descent, having migrated from Iran to Australia with his mother and sister at the age of seven. He has a history of substance use beginning at age 18 with steroids and progressing to cocaine use by the age of 23. The applicant left school in year 10 and has since held intermittent employment painting houses and selling used cars.

22 Prior to remand, he resided with his mother and sister at 7 Queenstown Road, Boronia. He proposes to return to this address if granted bail.

23 The applicant has an extensive criminal history dating back to 2009, when he was 17 years-old. His criminal record includes a variety of charges including armed robbery, recklessly causing injury and other crimes of violence, numerous serious driving offences and crimes of dishonesty, weapons offences, reckless conduct offences, breaches of FVIOs and four offences of failing to answer bail. On numerous occasions and from a young age, he has breached community based dispositions, be they youth supervision orders, community based orders or CCOs.

24 The applicant was subject to a 24-month CCO at the time of the offending in the respondent Cornish matter and an 18-month CCO at the time of the alleged offending in the informant Cranage matter.

25 Section 1B of the Bail Act 1977 ('the Act') sets out the guiding principles of the Act and reads in part as follows:

(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and

(b) taking account of the presumption of innocence and the right to liberty;

(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

26 Section 4 of the Act makes plain the fact that there is generally to be a presumption in favour of the granting of bail. In a number of situations set out in the Act, however, that presumption is displaced by the requirement that the applicant establish the existence of either exceptional circumstances or a compelling reason that would justify a grant of bail.

27 Section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, the Court must refuse bail unless 'satisfied that exceptional circumstances exist that justify the grant of bail'.

28 The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.

29 If satisfied of the existence of exceptional circumstances, the Court is required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:

i. endanger the safety or welfare of any person; or

iii. interfere with a witness or otherwise obstruct the course of justice in any matter; or

iv. fail to surrender into custody in accordance with the conditions of bail.

30 The respondent bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, the Court is required to take into account the surrounding circumstances pursuant to s 3AAA. The Court is also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.

31 The meaning of exceptional circumstances has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[1] stated the relevant principles as follows:

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[2]

32 Further, in the recent decision of Re Brown,[3] Lasry J noted:

... the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

• The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
• Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
• Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[4]

33 Mr Anger for the applicant relied on the following factors in what he described as 'the bucket of matters' to demonstrate the existence of exceptional circumstances justifying the grant of bail:

a. Delay. The applicant has already spent 252 days in custody referable to these charges, and as a result of the COVID-19 pandemic, there is great uncertainty as to when his trials will proceed. They will not take place this year, and the timing of any trials next year is very unclear. On any view, he will spend a long time on remand.

b. The onerous circumstances of his custody. The applicant is being held in protection as a result of a number of physical attacks upon him. Consequently, his conditions of incarceration were very onerous even before the advent of the changes to prison procedures, including the cessation of visits, brought about by the COVID-19 pandemic. The applicant is in his cell for 22 hours a day, and receives no visits, and has fears for his own wellbeing and that of his family outside the prison. Mr Anger relied on the contents of the affidavit of the applicant exhibited to the affidavit in support of bail.

c. The lack of strength of the prosecution case. Mr Anger did not go so far as to submit that the prosecution case was weak in either matter, but did submit that the cases were not strong, being based upon the unsupported testimony of the two complainants who were in somewhat compromised positions and would be subject to strong attack. There are triable issues and a defence which is palpable in each case, submitted Mr Anger.

d. The fact that whilst the criminal history is lengthy and contains a number of breaches of court orders, these have occurred in the context of his drug use.

e. The applicant has used his time in custody well. He has completed a number of courses whilst in custody. Furthermore, the affidavit of his mother Gity Mokhtarani indicates that there has been a noticeable change in the maturity and attitude of the applicant since his incarceration.

f. The availability of a stable residence, employment, and family and other supports. On this score, Mr Anger pointed to the affidavits of his mother and sister and those of the Reverend Nathan Steer from the Camberwell Baptist Church and John Rahmani from TTF Superstore Ferntree Gully.

34 With respect to unacceptable risk, Mr Anger relied on all of the above matters in conjunction with some further matters he raised. He submitted that the applicant has matured whilst in custody. He has worked as a billet, participated in multiple courses and remained abstinent from illicit substances. Mr Anger submitted that whilst there is a risk, in light of all of the circumstances, the risk of the applicant re-offending or failing to appear is low and can be ameliorated by the imposition of strict bail conditions.

35 Mr Brown for the respondent opposed bail on the basis that the applicant has failed to demonstrate exceptional circumstances justifying the grant of bail, and in the alternative, that he poses an unacceptable risk of:

(a) endangering the safety or welfare of any person;

(b) committing an offence while on bail;

(c) interfering with a witness or otherwise obstructing the course of justice in any matter; and

(d) failing to surrender into custody in accordance with the conditions of bail.

36 In respect of the issue of delay and the other implications of the COVID-19 pandemic, Mr Brown relied on Re Tong[5] in support of the contention that whilst the issues raised by the pandemic as to uncertain and increased delay and more onerous conditions of custody are relevant considerations, the COVID-19 issues are no more than one of the matters going into the mix, and far from being conclusive as to the existence of exceptional circumstances.

37 In this case, whilst the delay would be significant, the case should get on some time next year, and could be expected to have some priority where listing is concerned because it relates to alleged sexual offending.

38 In the affidavit in response, upon which Mr Brown relied, it was asserted that the time likely to be spent on remand would not exceed the likely sentence to be imposed should the applicant be convicted of either of the series of charges.

39 In terms of the seriousness of the offending, Mr Brown submitted that each of the rapes allegedly occurred in the context of family violence against a former partner of the applicant. The offending was serious, albeit not at the top end of the spectrum of seriousness. The applicant has a history of family violence offending against current and former partners. Very lengthy terms of imprisonment would necessarily be attracted upon conviction.

40 Whilst the strength of the case may be hard to assess in view of the fact that it depends on word against word, it certainly could not be characterised as weak, submitted Mr Brown.

41 Mr Brown submitted in respect of the criminal history of the applicant that it is long and serious, and shows that over many years, the applicant has flagrantly breached all manner of court orders. The indications are that he has a disregard for the importance of such orders.

42 In respect of the supposedly stable accommodation available to the applicant with his mother and sister, each of them has in the past been the protected family member in connection with FVIOs taken out to protect them. Mr Brown pointed to the history of family violence as set out in the report of the respondent Cranage. Furthermore, he submitted that the applicant's proposed accommodation is unsuitable given that he resided at that address at the time of the alleged offending in the respondent Cornish matter and it is the location of the alleged rape of MZ.

43 The respondent submitted that the availability of a surety is not a circumstance that takes the case out of the normal. In addition, it was submitted that the surety being offered via equity in the applicant's mother's home may exposes her to the risk of family violence should he fail to answer bail and would place her in a vulnerable position for further victimisation by the applicant.

44 In summary, Mr Brown submitted that the applicant failed to discharge the onus resting on him to establish exceptional circumstances that would justify the grant of bail.

45 The respondent relied on the following surrounding circumstances in support of its position on unacceptable risk:

(a) The applicant is to stand trial on two separate allegations of rape and other incidents of violence against the respective complainants;

(b) The applicant has an extensive criminal history, including prior convictions for disregarding court orders, in particular, failing to answer bail;

(c) The applicant was subject to CCOs at the time of offending in both matters;

(d) There are currently three FVIOs in place against the applicant, none of which relate to the complainants, but which were made in respect of other former intimate partners. The applicant has been identified by the Family Violence Command Taskforce as a high risk family violence offender due to his significant and continued family violence history. He has been the perpetrator of 25 reported family violence incidents and has been named as the respondent in 29 FVIOs;

(e) Both complainants live in fear of the applicant and oppose the grant of bail. The informants in both matters hold justifiable fears for the safety of the complainants and note past instances of the applicant utilising threats and intimidation to get complainants to withdraw allegations against him (including past allegations of rape), and recent instances of the applicant attempting to contact SB through his mother while in prison, which resulted in the issue of a FVIO against the applicant's mother. The respondents hold concerns that if granted bail, the applicant may seek to contact the complainants to seek withdrawal of their allegations or exact retribution.

46 It was submitted on behalf of the respondent that the conditions proposed by the applicant would not mitigate the obvious risks to an acceptable level.

47 A sensible starting point in a consideration of whether exceptional circumstances have been established is the first of the matters raised for consideration in s 3AAA, namely, the nature and seriousness of the offending. Rape is always a serious offence, attracting the second highest maximum penalty known to Victorian law of 25 years' imprisonment. The applicant faces two such charges where the alleged victims are two successive domestic partners. The offending occurred in a family violence setting. As alleged, it was brutal and callous. It is undeniably serious.

48 As for the strength of the cases, as submitted on both sides, it depends on the acceptance of the word of the two complainants. Mr Anger asserted that each would be subject to justifiable attack as to credit. That may well be so, but as things stand now, I can certainly not judge the case in respect of either set of charges to be weak.

49 The accused's criminal history is something that does him no favours where bail is concerned. It raises serious questions as to his character, and as to his ability or inclination to abide by any orders issued by courts.

50 As for the extent to which he has complied with conditions of earlier grants of bail, this has been poor. It is no small thing to accrue four convictions, on four separate occasions, for failing to answer bail. On at least one occasion, he has been imprisoned for such a failure.

51 At the time of the Cranage offending, the applicant was subject to bail in respect of the earlier alleged rape. At the time of each of the events, he was subject to one or more CCOs.

52 All-in-all, it would not be unreasonable to conclude that, if proven past behaviour is anything to go by, the prospects of the applicant being willing and able to comply with the sort of stringent bail conditions proposed by Mr Anger are dim.

53 In the case of the applicant, there are a number of current FVIOs. None of these concerns either of the complainants in this case, but none the less, the offending against each complainant is alleged to have occurred in a family violence setting. I am required to consider whether there would be a risk that if released on bail, the applicant would commit family violence and if so, whether that risk could be mitigated by the imposition of conditions.[6] Furthermore, under s 3AAA(1)(f), I am required to consider any FVIOs in force.

54 In respect of the personal circumstances of the applicant, whilst there was an assertion made that these would be stable, and that the previous conflict between the applicant and his mother and sister, his proposed house-mates, is well in the past, there is no material before me that satisfies me of that matter. Were he to be released from custody, it is hard to get around the proposition that he would be going to live at a house in which some of his alleged offending occurred with a mother and a sister who have frequently, in the past, accused him of family violence towards them. That would be a completely unsatisfactory situation.

55 In respect of the availability of treatment or bail support services, there is no clear evidence of the applicant having taken major steps on the way towards dealing with his drug issues while in custody, albeit that I have been told that he has abstained from the use of drugs.

56 As for the views of the complainants to a grant of bail, both of them are frightened of him. MZ, according to Cornish, 'lives in daily fear of the [applicant] finding out where she lives and seeking retribution'. SB, according to Cranage, 'believes that the [applicant] will seek retribution against her and she is terrified for her life and that of her family'. I take the understandable fears of both of the complainants into account in considering the question of exceptional circumstances.

57 Turning to the considerations in s 3AAA(1) (k) and (n), there is no question that the length of time the applicant will spend on remand if not released on bail will be substantial. However, upon conviction for even one of the rape offences with which he is charged, the applicant would inevitably receive a long term of imprisonment which would far outweigh any period spent on remand.

58 In respect of the overall implications of the COVID-19 pandemic, I am acutely aware of the fact that the delay in this matter will be extended significantly as a result of steps taken to control the spread of the virus. I am also conscious of the onerous conditions under which the applicant will be held for the foreseeable future at least, and the increased anxiety and stress with which he is faced because of the uncertainty and relative powerlessness of his position. However, I repeat what I said earlier this year in the case of Re Tong:

It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. These matters, whilst themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken.[7]

59 Having carefully considered all of the matters placed before me in support of the application, I am far from being satisfied that the applicant has discharged the onus resting on him to establish the existence of exceptional circumstances.

60 I can further indicate that even had I been so satisfied, the material pointing to the high risk of the applicant endangering the safety of the public, committing offences whilst on bail, interfering with witnesses in the cases against him, and failing to answer his bail, was to my mind, very compelling.

61 Of the risks in question, Cornish said in her report, 'I believe the accused is an unacceptable risk of reoffending and is an extreme risk to the safety of the complainant MZ'. Cranage was moved to say, in her report, 'I have conducted a thorough risk assessment and I believe the accused is an extreme risk to the safety of the complainant SB. He made threats to kill her and threatened the lives of her children'.

62 In the circumstances, even if satisfied of the existence of exceptional circumstances, I would have concluded that the risk of one or more of those eventualities which so clearly concern the police would have been unacceptable, and I would have refused bail for that reason in any event.

63 For the reasons I have stated, this application for bail must be refused.

[1] [2004] VSC 17.

[2] Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].

[3] [2019] VSC 751.

[4] Ibid [65]-[66] (citations omitted).

[5] [2020] VSC 141 ('Re Tong').

[6] Section 5AAAA.