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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Re GJA  QDC 170
Application for bail
District Court at Cairns
15 May 2020 (delivered ex tempore)
15 May 2020
CRIMINAL LAW – PROCEDURE – BAIL – AFTER CONVICTION – GENERALLY – where the applicant pleaded guilty to two counts of maintaining a sexual relationship with a child and two counts of rape – where the sentence was adjourned to obtain a psychological or psychiatric report – where the applicant applies for bail pending sentence – whether the applicant can show exceptional circumstances
Bail Act 1980 s 8, s 9
Criminal Code 1899 s 590AA
Maher, Ex parte  1 Qd R 303
B Bilic for the applicant
N Crane for the respondent
Richardson Eckersley Lawyers for the applicant
The Office of the Director of Public Prosecutions for the respondent
- The applicant defendant is charged on indictment with four counts of sexual offending against children: two counts of maintaining a sexual relationship with a child and two counts of rape. They are all domestic violence offences.
- The offending involves two separate children who were the defendant’s nieces. It is alleged to have occurred between 2005 and 2009. They are historical offences. The complainants were aged between three and six years of age. The defendant was aged about 23 years and older. There is an agreed statement of facts exhibited to an affidavit from the Office of the Director of Public Prosecutions.
- The matter has had a relatively lengthy history. The offences were only disclosed in 2018. The charges were committed for trial in March 2019. There was a registry committal. The defendant did not enter a plea. The indictment was presented on 26 July 2019. The defendant was refused Legal Aid. The matter was adjourned a number of times. His solicitors withdrew. He engaged private solicitors who continue to represent him. There were further adjournments. In November 2019 there was an indication that the defendant would plead guilty to the maintaining but not guilty to the rapes. The matter was listed for the pre-recording of the evidence of the two children in March 2020. However, that hearing was delisted and the matter was listed for an arraignment in March 2020. That arraignment itself was delisted. The matter was listed for further review. The defendant then filed an application pursuant to section 590AA of the Criminal Code 1899 (Qld) to sever the indictment. That was listed for a pre-trial hearing on the 14th of May 2020. Three days before that, the application was withdrawn and the defendant informed the Crown that he would plead guilty to all counts on the indictment.
- The matter was listed for arraignment before me today. The defendant entered pleas of guilty to all counts and has been convicted. The sentence has been adjourned to 13 July 2020 at the request of the defence to obtain a psychiatric or psychological report to be taken into account in mitigation on sentence.
- Having now been convicted, the defendant makes an oral application for bail on the basis of several grounds.
- The first is that he has not committed any breaches of bail in the lengthy time he has been on bail, which appears to be since December 2018. The second is that a psychiatric report is to be completed and the COVID-19 virus restrictions on prisons will make the process of obtaining that report more difficult if it is to occur by video link rather than face-to-face. The third is that the defendant is in full time stable employment as a farm labourer. The fourth is that he has borrowed money from his employer for his legal expenses for a private solicitor and is using his wages, in part, to repay the loan. If he is unable to work, he will not be able to pay the fees from his wages. The fifth is that it is a timely plea of guilty, and the sixth ground is that he has family support locally.
- The Crown opposes the grant of bail. It points to the fact that the defendant has now been convicted of extremely serious offending which will see him sentenced to a lengthy term of imprisonment requiring him to serve a period of actual custody, unless exceptional circumstances are demonstrated.
- Without prejudging the matter, it is difficult to imagine how exceptional circumstances could be demonstrated given the very serious nature of the offending. By way of example only, count 3 involves the penile vaginal rape of a six year old girl with a sock stuffed in her mouth to prevent her crying out, who then passed out in pain from the event.
- The defendant has a criminal history, but it is very limited and not relevant to the offending before me. When he was a very young man he was convicted of grievous bodily harm and sentenced to a wholly suspended sentence of 18 months imprisonment. He has no convictions for sexual offences and it is not suggested he has offended while on bail.
- The presumption in section 9 of the Bail Act 1980 (Qld) (‘the Act’) in favour of the grant of bail does not apply in this situation. That is because it is confined to a person who has not been convicted. The Act is otherwise silent about the Court’s powers with respect to granting bail after a person has been convicted, save for the Court’s general power in section 8. The court may, subject to the Act, grant bail to a person held in custody on a charge of or in connection with an offence if the Court has adjourned the criminal proceeding: s 8(1)(a)(ii).
- I have been assisted by the Court of Appeal decision in Ex parte Maher  1 Qd R 303 in which Thomas J sets out a number of principles. The starting point is that:
“Courts appear always to have recognised a fundamental difference between the grant of bail to a person clothed with the presumption of innocence and the grant of bail to a person after he has been convicted. A long line of cases… [citations omitted] demonstrates the attitude that after conviction, bail should be granted only ‘in exceptional circumstances’”: see pages 307 to 308.
- The situation is in some ways akin to one of an application for appeal bail. It is against the public interest that a person duly convicted on their own plea of guilty of very serious sexual offences against children should be seen to be at large shortly after conviction, even if they have not yet been sentenced and penalised. Thomas J repeated the principle in different words at page 310:
“In my view the inherent difference between an application of the present kind and that of a person who is still clothed with the presumption of innocence is so great that no court exercising a completely untrammelled discretion should grant such bail unless there were indeed exceptional circumstances present. … The discretion is one that is not lightly to be exercised, and is one that requires factors of sufficient force to outweigh the public factors I have mentioned.”
- In my view, the grounds relied upon by the defence, individually or in combination, are not sufficient to constitute exceptional circumstances. It is not uncommon – in fact, it is the rule rather than the exception at the moment - that psychiatric reports for offenders in custody are prepared by video-link rather than in person. It is unfortunate that the defendant is using his wages to repay his employer. I accept that he will no longer be earning an income if he is remanded in custody, but under no circumstances could that factor be considered exceptional or sufficient to warrant the exercise of the discretion in his favour.
- In any event, if the defendant is ultimately unable to pay his private solicitors or his psychiatrist and the matter were an appropriate matter that warranted a court ordered presentence report, then the defence could always make an application for that to occur if it were warranted in the circumstances.
- The matters relied upon as grounds by defence counsel are really matters which might carry weight if this were an application for bail for someone who had not been convicted. Indeed, they would carry weight, but they are certainly not sufficient to constitute exceptional circumstances where a person has been convicted in the circumstances that I have described.
- Therefore, I order that the application for bail is dismissed and the defendant is remanded in custody.
- Published Case Name:
- Shortened Case Name:
 QDC 170
15 May 2020