R v AH[2020] QDCPR 24

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant applies for bail. She is in a show cause situation because of section 16(3)(g) of the Bail Act 1980 (Qld). This provides that a person is in a show cause position where they are charged with a “relevant offence”.

2. [2]
   Section 16(7) of the Bail Act defines a “relevant offence” as inter alia “an offence punishable by a maximum penalty of at least seven years imprisonment if the offence is also a domestic violence offence”.^[1]

Charges

3. [3]
   The defendant is charged with the following counts:

2. 1.1 x torture
3. 2.16 x assault occasioning bodily harm
4. 3.13 x assault occasioning bodily harm whilst armed
5. 4.1 x cruelty to a child

Allegations

4. [4]
   The alleged facts are contained in a Schedule of Facts annexure to the affidavit of Jones Coghlan.^[2]

5. [5]
   The defendant is the co-accused of JO. They were in a relationship at the relevant time.

6. [6]
   The complainant is a child who was two to three years old at the relevant time. The defendant is the complainant’s biological mother. The complainant is the defendant’s middle child. Initially, the defendants would care for the complainant on weekends and one night a week. Otherwise the child would live with his maternal grandparents.

7. [7]
   In February 2018, the defendants obtained emergency housing in Ipswich and the complainant returned to their fulltime care. They then moved to an address in Kallangur.

8. [8]
   On 25 July 2018, police attended the household after a fight was reported.

9. [9]
   The complainant was found sitting on the floor with extensive injuries. The complainant was later assessed at a hospital and was found to have the following injuries:

1. (a)
   Extensive areas of bruising to his body involving his scalp, head, neck, chest, abdomen, genitals, back, buttocks, arms and legs.
2. (b)
   Extensive areas of patterned bruising to his body involving his chest, abdomen, genitals, back, arms and legs.
3. (c)
   Numerous superficial scratch abrasions to his body involving his scalp, head, neck, chest, abdomen, back, butts, arms and legs.
4. (d)
   Lacerations to his nose and right foot.
5. (e)
   A general thin wasted appearance.

10. [10]
    Aging of the injuries was not possible. The clinical examinations did not reveal any underlying medical condition which would account for the injuries. The injuries were not life threatening and resolved on their own. As noted, the complainant presented with a thin waisted appearance. He had minimal subcutaneous fat and protruding bones particularly his ribs and pelvis. He weighed 13kg and was in the twentieth percentile for his age in terms of weight and the fourth percentile for his age in terms of body mass index. He was diagnosed with chronic malnutrition. The complainant has mildly lowered phosphate albumin which is consistent in a setting of malnutrition.

11. [11]
    The complainant had not seen a doctor since April 2017 over a year prior to the detection of the offences. This was in circumstances where the defendants and the defendants’ other children received bulk billed medical treatment throughout 2018.

12. [12]
    On 1 August 2018, the defendants were interviewed.

13. [13]
    AH told police that the complainant bruised easily and she was in the process of having him tested. She attributed the complainant’s injuries to an occasion where he had pulled a trophy shelf onto himself, to him falling over regularly and to when he had fallen over tree stumps in the backyard on a few occasions. The interview was terminated when AH allegedly became unwell. She was charged and then released on bail.

14. [14]
    JO told police that the complainant’s injuries were attributed to the following causes:

1. (a)
   The complainant was accident prone.
2. (b)
   The complainant bruises very easily and has a suspected underlying order which accounts for this.
3. (c)
   The complainant had ill-fitting footwear for a period of time which caused him to trip.
4. (d)
   The complainant pulled a shelving unit on top of himself on at least three occasions in the week prior to his hospitalisation. One of these occasions was the night prior to police attending their address.
5. (e)
   The complainant tripped and fell on a tree stump in the background about one week prior to police attending.
6. (f)
   The complainant engaged in play fighting with his siblings.

15. [15]
    JO accepted the complainant looked generally unwell in three days prior to his hospitalisation. She denied seeing extensive tramline marks, abrasions and bruising on him despite witnessing him bathing the night prior to hospitalisation. She expressed shock on seeing the photographs of the injuries. She was charged, released on bail but failed to appear on 25 June 2019 and a bench warrant was issued. On 18 July 2019, she was arrested and remanded in custody.

16. [16]
    The Crown does not accept either AH’s or JO’s versions or that the constellation of injuries to the complainant can be attributed to the accidental causes nominated by them.

17. [17]
    The torture charge is brought on the basis that the complainant sustained injuries as a result of excessive force on one or a series of occasions and whilst the offender was armed with unknown offence instruments. The result of these acts was extensive bruising and abrasions to the complainant’s entire body. The Crown’s case is there is no other explanation for the constellation of injuries seen on the complainant which were caused by various implements. It is alleged they were inflicted with an intention to cause severe pain and suffering.

18. [18]
    Counts 2 to 30 are particularised acts.

19. [19]
    Count 31 relates to the failure by the defendants to properly feed the child or take him to the doctor.

Chronology

20. [20]
    On 1 August 2018, police attended at AH’s address and a search warrant was executed. The defendants were arrested and both were interviewed by police. Both were formally charged and released on watch house bail.

21. [21]
    On 20 August 2018, there was the first committal mention for the charges.

22. [22]
    On 5 September 2018, AH failed to appear and a warrant was issued for her arrest to lie on the registry until 17 September 2018. This warrant was released. On 23 September 2018, AH was located by police and the arrest warrant was executed and she was charged with failing to appear and released on bail.

23. [23]
    On 14 June 2019, AH was committed for trial to the Brisbane District Court.

24. [24]
    On 24 October 2019, JO’s matter was listed as trial number 1 in the week commencing 16 March 2020.

25. [25]
    On 5 December 2019, an indictment was presented against both AH and JO charging them with the 31 counts. The trial remained as listed.

26. [26]
    On 21 February 2020, Legal Aid appeared as town agent for Burchill Horsey Lawyers for AH. The court was advised that a conference was scheduled for 21 February 2020.

27. [27]
    On 21 February 2020, the DPP received an email from Miss Catherine Cuthbert of counsel for AH confirming there would be a submission to resolve the matter.

28. [28]
    On 24 February 2020, the DPP received an email from Miss Cuthbert advising that she and her instructing solicitors would be seeking leave to withdraw.

29. [29]
    On 25 February 2020, Legal Aid appeared as town agents for Burchill Horsey Lawyers. The court was advised that a transfer of legal aid was likely and an ethical conflict had arisen with Burchill Horsey Lawyers acting.

30. [30]
    On 3 February 2020, Legal Aid appeared on behalf of AH and came onto the record. Burchill Horsey Lawyers were granted leave to withdraw. Legal Aid advised that a conference would occur on 6 March 2020.

31. [31]
    On 9 March 2020, AH’s matter was joined with JO’s trial.

32. [32]
    On 12 March 2020, a conference was held between the DPP and counsel for each defendant. The DPP later received confirmation from Ms Brysen, counsel for JO that she would plead guilty.

33. [33]
    On 13 March 2020, the DPP received an email from Mr Mumford, counsel for AH, advising that AH had instructed she would plead guilty.

34. [34]
    On 16 March 2020, an indictment was presented against both of them charging them with 19 counts.

35. [35]
    AH did not arrive by 10am and the matter was stood down. JO was arraigned and pleaded guilty to each of the 19 counts. AH arrived at about 10:22am and conferred with counsel. She was remanded in custody. The matter was re-mentioned at about 12:30pm. The court was advised that AH now intended to plead not guilty and proceed to trial. A conflict had arisen and Mr Mumford was granted leave to withdraw. She was remanded in custody. The trial was delisted on 17 March 2020.

Defendant’s personal circumstances

36. [36]
    The defendant was born 16 September 1994 at Brisbane. She is 25 years of age. She was 23 years of age at the time of the alleged offences. She has a minor criminal history.

37. [37]
    An affidavit sworn by Ms Dower is relied on.^[3] SH, AH’s mother has informed Ms Dower that AH had resided with them at an address in Caboolture and can live there if released on bail. AH’s child lives there as well and SH supervises AH’s care of the child. SH has never witnessed any abuse or violence by AH towards the child. The Department of Child Safety has sanctioned this arrangement.

Crown submissions^[4]

38. [38]
    The crown submits that bail should not be granted as there is an unacceptable risk of the defendant failing to appear and surrendering into custody if granted bail. It is submitted in reliance on R v AAW^[5] that if convicted a head sentence in the order of seven years would be imposed. It is submitted that the defendant has failed to appear previously. Additionally, she did not turn up to court until late on 16 March 2020. She has changed her mind about pleading guilty and her lawyers have withdrawn. It is submitted there is a strong case against her and the defendant has engaged in delaying tactics.

Defence submissions^[6]

39. [39]
    The defence accepts the allegations of fact save that she does not accept she caused the injuries to the complainant. The defence submits that the defendant has an extremely limited history and while the crown case is strong because of the present situation with the COVID-19 virus she will not be able to secure a jury trial any time soon.

40. [40]
    Whilst her defence may be that the co-accused committed the offences, it is accepted that this defence is not strong as it is contrary to her statements made to the police.

41. [41]
    If released on bail she is able to live with her mother, her father and her child.

42. [42]
    It is submitted there is no risk of reoffending bearing in mind she has not reoffended for 18 months. The one month is custody will act to deter her from failing to appear.

43. [43]
    A draft order with conditions is proposed.

Discussion

44. [44]
    It is for the defendant to justify why her continuing detention is not warranted.

45. [45]
    In reaching my decision, I have regard to the provisions of s 16 of the Bail Act 1980 (Qld).

46. [46]
    This section relevantly provides:

1. (1)
   Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court or police officer is satisfied—

1. (a)
   that there is an unacceptable risk that the defendant if released on bail—

1. (i)
   would fail to appear and surrender into custody; or
2. (ii)
   would while released on bail—

1. (A)
   commit an offence; or
2. (B)
   endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
3. (C)
   interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or

1. (b)
   that the defendant should remain in custody for the defendant’s own protection.

1. (1A)
   Where it has not been practicable to obtain sufficient information for the purpose of making a decision in connection with any matter specified in subsection (1) due to lack of time since the institution of proceedings against a defendant the court before which the defendant appears or is brought shall remand the defendant in custody with a view to having further information obtained for that purpose.
2. (2)
   In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1) (a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant—

1. (a)
   the nature and seriousness of the offence;
2. (b)
   the character, antecedents, associations, home environment, employment and background of the defendant;
3. (c)
   the history of any previous grants of bail to the defendant;
4. (d)
   the strength of the evidence against the defendant;
5. (e)
   if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—

1. (i)
   the defendant’s relationship to the defendant’s community; or
2. (ii)
   any cultural considerations; or
3. (iii)
   any considerations relating to programs and services in which the community justice group participates;

1. (f)
   if the defendant is charged with a domestic violence offence or an offence against the Domestic and Family Violence Protection Act 2012 , section 177 (2) —the risk of further domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012 , being committed by the defendant;

Note—

See section 15 (1) (e) for the power of a court to receive and take into account evidence relating to the risk of further domestic violence or associated domestic violence.

1. (g)
   any promotion by the defendant of terrorism;
2. (h)
   any association the defendant has or has had with—

1. (i)
   a terrorist organisation within the meaning of the Criminal Code (Cwlth) , section 102 .1(1); or
2. (ii)
   a person who has promoted terrorism.

47. [47]
    The parties here agree this is a strong case. It is also agreed that if convicted after a trial the defendant is looking at a considerable sentence – perhaps in the order of six to seven years. This is a relevant consideration.^[7]

48. [48]
    Also it is possible that if the defendant were to be convicted after a trial on all counts, a serious violent offence declaration might be imposed by the court on the count of torture. That situation might be different if she pleaded guilty to the negotiated 19 count indictment, but as I understand it the defendant has at this stage rejected such a proposition.

49. [49]
    On my assessment of the case there is a real risk of the defendant failing to appear here.

50. [50]
    I reach this conclusion as:

1. (a)
   She failed to appear on these charges in late 2018 and was arrested on the warrant without having voluntarily surrendered.
2. (b)
   She has engaged in delaying tactics. Her first lawyers were forced to withdraw in February 2020 after she changed her mind about a submission being sent. New lawyers were engaged. The crown was advised she would plead guilty to a negotiated indictment. She changed her mind. Counsel was forced to withdraw.
3. (c)
   She arrived at court late with little to no explanation.
4. (d)
   She is facing a considerable period in jail.

51. [51]
    If released on bail the defendant would have good reason not to appear bearing in mind the significant custodial sentence she faces if convicted after trial.

52. [52]
    I also observe that where it is demonstrated that time in custody is likely to exceed any custodial sentence, this is a relevant consideration^[8] but the relative importance of this is to be weighed by all of the competing considerations.^[9] In any event, there is no risk here that any remand time would exceed the likely custodial portion of the sentence if convicted after a trial. 

Conclusion

53. [53]
    In all of the circumstances I am not satisfied that cause has been shown and I dismiss the application.