R v Neil Duncan [2022] NSWDC 216

District Court New South Wales

Medium Neutral Citation: R v Neil Duncan [2022] NSWDC 216 Hearing dates: Thursday 2 June 2022 Date of orders: Thursday 2 June 2022 Decision date: 02 June 2022 Jurisdiction: Criminal Before: Tupman DCJ Decision: Application for detention: Application is not granted Catchwords: CRIME — Bail — Detention application – Oral Detention Application immediately after guilty verdicts — Ex Tempore Judgment — 3 child complainants — 8 counts of sexual touching­ — Verdicts of not guilty for 2 other complainants — On bail since arrest in October 2020 — Strict conditions and no breach — Not Show Cause offences — Gaol term highly likely or inevitable — Offender had moved away from the area where offences committed — Only additional identified risk was risk of flight because of conviction — No evidence to indicate increased risk of flight but any such risk alleviated by additional conditions being surrendering passport and not approaching points of international departure — No other evidence led by Crown to support detention application — No demonstrated risk to other children — Sentence date 5 August 2022 Category: Principal judgment Parties: The Queen Neil Duncan Representation: Counsel: Ms. C. Goodhand for the Crown Mr. R. Pontello SC with Ms. T. O'Rourke for the offender

Solicitors: Mr. G. Gaynor for the Crown Mr. P. Woodhouse for the offender File Number(s): 2020/00317451

Judgment 1. HER HONOUR: I am not satisfied that bail should be refused in this case. Subject to argument, it seems highly likely, if not inevitable, that he faces a term of imprisonment. The verdicts of guilty in relation to OO, counts 5 to 8, particularly count 8, are such that it is likely in the circumstances that the threshold will be crossed. There is no alternative to full time custody if that is the case. Without hearing any of the arguments however, I would have thought that the multiplicity of charges and now multiplicity of verdicts involving OO and SC, so those six counts at least, will mean a very high likelihood, if not inevitability, that there will be a term of imprisonment. 2. The relevant circumstances in relation to a refusal of bail are that, in the circumstances, there is in fact an increased flight risk. There is nothing in the evidence here that would indicate he is an increased flight risk any more than he might have been a flight risk over the last two years whilst he has been awaiting trial. Any such risk can be alleviated by imposing conditions as suggested, namely that he report to police at regular intervals. Three days a week it seems to me is unnecessary. One day a week I agree is enough. There should also be conditions that he not approach within 500 metres of any point of international departure and surrender his passport. He has agreed to those conditions. 3. There should be a residence condition and a bail condition requiring him to appear at court, which always seems to me a bit unnecessary, because if he does not appear there will be a warrant for him, but nonetheless if that is thought to be important, I will impose it. It does not seem to me that there is any need to ask an acceptable person to forfeit a sum of money, particularly as the only difference between now and what has occurred over the last two years is that he has now been convicted and is facing the reality of a period in gaol. Therefore, the only increased risk is the risk of flight, which in my view would not in fact be alleviated to any extent by requiring an acceptable person to deposit a sum of money. 4. The pre-existing conditions appear to have protected the complainants in this matter. There is no demonstrated risk to any other children. He has moved from the area to Tamworth. The existing conditions are relatively strict and apparently have been complied with. 5. In my view, the evidence to support the detention application is merely that he has now been convicted which is said to increase his flight risk, which as a matter of general logic and principle is correct, but in this case it is not a significant reality or at least not one that cannot be alleviated or obviated by the appropriate conditions. 6. The detention application is not granted.