Supreme Court New South Wales Medium Neutral Citation: R v Acevedo [2024] NSWSC 639 Hearing dates: 23 May 2024 Date of orders: 28 May 2024 Decision date: 28 May 2024 Jurisdiction: Common Law Before: Harrison CJ at CL Decision: Bail granted subject to conditions Catchwords: CRIME – bail – release application – grant of bail following conviction but before sentence – whether the applicant "will be sentenced to full-time imprisonment to be served by full time detention" so that s 22B Bail Act 2013 (NSW) applies – where alternative sentence of community corrections order was available – where it could not be said the applicant "will" serve full-time imprisonment by way of full time detention – where the applicant has filed a notice of intention to appeal – where the applicant's grounds of appeal "are at least arguable and enjoy reasonable prospects of success" for the purpose of the release application – not necessary to consider "special or exceptional circumstances" pursuant to s 22B Bail Act 2013 – bail granted Legislation Cited: Bail Act 2013 (NSW), s 17, 22B Crimes Act 1900 (NSW), ss 61M, 66D Crimes (Sentencing Procedure) Act 1999 (NSW), s 8 Cases Cited: Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173 Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 405 ALR 371; [2022] NSWCCA 171; R v Williams [2018] NSWSC 994 Category: Principal judgment Parties: Francisco Javier Acevedo (Applicant) Crown (Respondent) Representation: Counsel: G Scragg (Applicant) Solicitors: Ly Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2024/145088 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: Francisco Javier Acevedo was found guilty following trial by a jury in the District Court of New South Wales on 9 February 2024 of three counts (Counts 1, 2 and 5) of aggravated act of indecency – victim under 16 years (DV) - contrary to s 61M(1) of the Crimes Act 1900. The maximum penalty for these offences is 7 years imprisonment. On the same day he was found not guilty of two similar counts (Counts 4 and 6) and one count (Count 3) of attempt to have sexual intercourse with a child above the age of 10 years and under the age of 14 years contrary to s 66D of the Crimes Act. All of the offences were alleged to have been committed between 1 January 2001 and 26 August 2003. The complainant is the daughter of Mr Acevedo's then wife. 2. Mr Acevedo was arrested on 3 May 2022. He remained at liberty on bail until the date of the verdicts. He is next scheduled to appear in court for sentence on 7 June 2024. A notice of intention to appeal was filed on 8 March 2024. It raises the following grounds of appeal: Ground 1: The jury's verdict of guilty on counts 1, 2 and 5 is unreasonable in all the circumstances and cannot be supported by the evidence having regard to the not guilty verdicts on counts 3, 4 and 6 and the evidence relied upon in support of all counts. Ground 2: The jury experienced doubts about the complainant's credibility on counts 3, 4 and 6 and that must rationally attend to her credibility on counts 1, 2 and 5. Ground 3: The guilty verdicts appear to be compromise verdicts. Ground 4: The guilty verdicts is inconsistent with the acquittals on counts 3, 4 and 6. 1. Mr Acevedo now makes a release application. That application is opposed. The Crown has identified bail concerns by reference to s 17(2)(c) and (d) of the Bail Act 2013. Section 22B of that Act applies. It is in the following relevant terms: "22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court-- (a) on a release application made by the accused person--must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) … (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5)…" 1. It is submitted by Mr Acevedo that in the circumstances to which I will shortly refer, there is a possibility that he may not be sentenced to imprisonment to be served by full-time detention because he would be eligible for a community corrections order so that s 22B(1)(a) of the Bail Act does not apply. Mr Acevedo contends that he would be eligible for a community corrections order. 2. Section 8 of the Crimes (Sentencing Procedure) Act 1999 provides as follows: 8 Community correction orders (1) Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender. (2) A community service work condition must not be imposed on a community correction order made in relation to an offender to whom the Children (Community Service Orders) Act 1987 applies. (3) This section is subject to the provisions of Part 7. 1. In the alternative, Mr Acevedo contends that he can in any event demonstrate the existence of special or exceptional circumstances that justify the making of a decision to grant bail. Details of offending Count 1: Aggravated indecent assault (under the age of 16 years) (DV) Section 61M(1) 1. There was an occasion when the complainant left the bathroom wearing a towel around her body, and was walking towards her bedroom which was located next to the room shared by Mr Acevedo and his wife. The complainant heard Mr Acevedo call out, "Come lay on the bed with me". She responded, "I need to get dressed for school". Mr Acevedo said, "It's okay, just come and lay [sic, "lie"] down". The complainant walked into the bedroom and saw that Mr Acevedo was lying on his bed wearing boxer shorts. She cannot recall whether he pulled the towel off her or if it came off as she laid on top of him, but the complainant ended up lying naked on top of Mr Acevedo on the bed. He held the complainant's hip area and pushed it back and forth down towards his genital area. The complainant's legs were on either side of his body. 2. The complainant's younger sister Victoria (then 2 or 3 years of age) was lying next to Mr Acevedo and the complainant on the bed. The complainant recalls this went on for 5 to 10 minutes. The complainant told Mr Acevedo, "I need to get ready for school". He said "No". The complainant again said, "I really need to get ready for school", and he let her leave the bedroom. 3. Around September of 2001, the family moved from Carramar to Wilson Road, Green Valley, where they lived for just over a year. The property was a two-storey brick house with three bedrooms. Downstairs at the property was an open-plan kitchen and dining room, where a computer desk was located. Count 2: Aggravated indecent assault (under the age of 16 years) (DV) Section 61M(1) 1. Mr Acevedo entered the complainant's bedroom at the Green Valley address and started tickling her under her arms and over her stomach whilst she was on her bed. He would either put her on top of him or climb on top of her and grind his genital area on top of hers. Mr Acevedo would also move his genital area back and forth over the complainant's genital area. 2. Sometime around October 2002, the family moved to North Liverpool Road, Bonnyrigg Heights. It was a single-storey four-bedroom house. At this property, the computer desk was located in the living room. 3. The complainant got to pick her bedroom at the house, and purposefully decided on the room that was separated from the other bedrooms in an attempt to distance herself from Mr Acevedo. Count 5: Aggravated indecent assault (under the age of 16 years) (DV) Section 61M(1) 1. During the first half of 2003, there was a time when Mr Acevedo asked the complainant to come and sit with him to watch TV. She was sitting down in the dining room watching "The Simpsons" on television. 2. Mr Acevedo came to get the complainant to sit on his lap while he was sitting on a dining room chair. The complainant was facing away from him. He put his hands underneath her shirt towards her breasts and stomach. He then put his hands inside her jeans. He made his way into the complainant's underwear and touched the outside of her vagina with his hands. The complainant felt Mr Acevedo rest his hand on the outside of her vagina before making his way down to the inside as well. 3. Mr Acevedo said to the complainant when he first began touching underneath her shirt, "Your stomach's warm". The complainant said that they "kind of just kept talking" but does not recall much said after that. She recalls this incident lasting about 5 to 10 minutes. Initial report to Police 1. On 14 August 2003, the complainant's mother was searching for her daughter's Kidsmart book to find a phone number when she located the complainant's note in the back of the notebook, scribbled out. The note, which is dated October 2002, states, "my dad keeps doing things to me that I don't like and I'm scared to tell anyone and if I tell my mum I scared that my parents will separate and I don't want that". 2. As a result, the complainant's mother contacted the Kids Helpline and a police investigation was commenced shortly thereafter. The complainant participated in an electronically recorded interview on 27 August 2003. Shortly after doing so, she was visited by Mr Acevedo. They sat at the dining room table and spoke in Spanish. He said, "Can you tell them you're lying? We're going to start a new life in Chile." The complainant felt excited about going on an aeroplane and moving to Chile. On 26 September 2003, she spoke with police and DOCS. She said that the allegations in her previous August 2003 interview were not true. 2021 Report to Police 1. In 2021, the complainant contacted the police with respect to the allegations, and attended Cabramatta Police Station on 17 April 2021 and 30 April 2021 to complete an additional statement. On 27 April 2022, police contacted the offender via telephone, and it was arranged for him to attend Fairfield Police Station on 3 May 2022. Mr Acevedo went to the Police Station on 3 May 2022 and was arrested and charged. He declined to participate in an electronically recorded interview. Prospects of success on appeal 1. Davies J reviewed the authorities concerning the question of an applicant's prospects of appeal in R v Williams [2018] NSWSC 994 at [12]–[13]: "[12] In R v Antoun [2005] NSWCCA 270 the Court (Simpson, Johnson & Rothman JJ) said: [14] It was argued on behalf of the applicants that the grant of special leave is an indicator that the appeal to the High Court 'is most likely to succeed' and that 'there is a real prospect that the conviction might be set aside'. In our opinion this overstates the position. This Court has been reminded by the Crown that it has been said that bail pending appeal will be granted only where the ground of appeal is so strong that it is virtually 'certain to succeed', and obviously so: R v Wilson (1994) 34 NSWLR 1. We do not accept that s30AA is so limited. [15] The judgment which has frequently been cited was, in fact, a minority position in Wilson. In Wilson, Kirby P, with whom Sheller JA agreed, said: '... it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed.' It is to be noted that, in that passage, Kirby P and Sheller JA seem to envisage that there may be grounds other than the merits of the appeal which would satisfy the s30AA test. Where the application is based only on the ground of the merits of the appeal, the passage has application but these remain open to the possibility that there are potentially other circumstances that might merit the grant of bail. [13] In El-Hilli, Hamill J (Simpson and Davies JJ agreeing) said of these cases: [24] …However, I should make it clear that I do not accept the suggestion that an applicant must establish that their appeal will either 'inevitably succeed' or that success is 'virtually inevitable'. Neither the statutory language, nor the case law, supports such a strict test. It was rejected by the Court (Simpson, Johnson and Rothman JJ) in R v Antoun. [25] The comment made by the single Judge may have been based on a misunderstanding of a submission made in the Crown's bail chronology in which the observations made by Hunt CJ at CL in R v Wilson were set out. As the Court pointed out in R v Antoun, those observations did not reflect the majority position. Kirby P (with whom Sheller JA agreed) in R v Wilson did not adopt the proposition that the appeals success must be 'virtually inevitable'. His Honour referred to the need for there to be 'something more than an arguable point' and suggested that the appeal 'must be most likely to succeed'. [26] In a case where the applicant relies exclusively on the strength of the appeal, the observations of Barr AJ in Petroulious v R and Kirby P in R v Wilson may apply and it may be necessary to establish that the appeal is 'most likely' to succeed. When the merit of the appeal is relevant as part of a combination of factors, the preponderance of authorities suggest that the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: see Peters v The Queen at 310-311; Marotta v The Queen at 266; R v Velovski at [24]-[25]." 1. In the present case, Mr Acevedo relies upon a combination of grounds, including that the jury's verdicts are unreasonable as well as a contention that they are inconsistent. With respect to the former, Davies J also considered this issue in R v Williams at [23]-[25]: "[23] It is necessary next to deal with the ground that the jury's verdicts are unreasonable and cannot be supported by the evidence. Such a ground involves questions of fact, and the respondent must obtain leave to bring such a ground. The test to be applied by the Court of Criminal Appeal is that laid down by the High Court in M v The Queen (1994) 181 CLR 487 at 492, 493 and 495. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the High Court said at [12]: Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. … [24] Whether a verdict is unreasonable is a matter to be determined by the Court of Criminal Appeal on a consideration of the whole of the evidence in the case. It is neither appropriate, nor the task of a judge hearing a bail application pending an appeal to the Court of Criminal Appeal, to engage in the same exercise as that of the Court of Criminal Appeal. As Hamill J said in El-Hilli at [35]: The merit of this ground is impossible to assess without recourse to the full record of the trial. [26] I did not have the full record of the trial; extracts only were provided. In any event, as I have said, it would not be appropriate for me to assess all of that evidence to determine if the jury's verdict was unreasonable. In most cases where the question of bail is being considered pending an appeal based on an unreasonable verdict ground, the judge hearing the bail application will not be able to do other than to say that the appellant has an arguable case that the verdict was unreasonable. That is because, unless the evidence is all one way or there is no or insufficient evidence to support a finding, the bail judge will not have a sufficient grasp of the factual detail to consider whether the jury ought to have had the sort of doubt that would have resulted in a not guilty verdict: M at 494." 1. Although I am similarly placed, not having the full record of the trial, some matters should be noted. The jury acquitted Mr Acevedo on Count 6 but convicted him of Count 5. Each count was in identical terms in the indictment as follows: "AND the Director of Public Prosecutions FURTHER CHARGES that FRANCISCO JAVIER ACEVEDO On a day between 1 July 2003 and 26 August 2003, at Bonnyrigg Heights in the State of New South Wales, assaulted XX and at the time of the assault committed an act of indecency on her, a child then under the age of 16 years, namely 12 or 13 years old. S 61M(1) Crimes Act 1900". 1. Count 5 concerns an allegation that Mr Acevedo touched the complainant on her breasts and on her vagina. She made no complaint about that in her statement or in her interview in August 2003. There is no mention in her notebook in September 2003 about being touched on the breasts at all. The complainant withdrew that allegation about being touched on the vagina when interviewed in September 2003. 2. Count 6 also concerns an allegation that Mr Acevedo touched the complainant on her breasts and on her vagina. In her interview in August 2003 the complainant made no complaint about being touched on her breasts. She withdrew the allegation when interviewed in September 2003. 3. It seems apparent that the complainant maintained that she withdrew the allegations having regard to her desire to avoid her parents separating and in the light of the possibility of a move to Chile. That was a perfectly reasonable matter for the jury to consider when assessing the veracity of the complaints. It is well understood in this Court and more generally in cases such as this that young victims often complain late or withdraw complaints and that they cannot, and should not, be criticised or disbelieved upon that basis alone. There is considerable academic literature, and it is the experience of the courts, which makes it clear that generalised assumptions about what such behaviour might be thought to suggest are unfounded and unwarranted. 4. In the present case, Mr Acevedo does not contend otherwise. His narrower proposition is that the jury in this case came to entirely different conclusions about almost identical facts relying solely upon the complainant's account of what occurred. He contends that his acquittal cannot reasonably or rationally be explained by other factors in the trial. Mr Acevedo wishes to contend on appeal that these verdicts are inconsistent and suggest some form of compromise by the jury. 5. Mr Acevedo was convicted of two of the other six counts and acquitted of two more. Count 3, of which he was acquitted, was an allegation of attempted sexual intercourse. Mr Acevedo wishes to contend that his acquittal on that count is only explicable upon the basis that the jury did not believe the complainant's evidence and that a rejection of her evidence on such a count reliably informs his criticisms of the reasonableness and reliability of the jury's guilty verdicts on all counts that are necessarily based upon an acceptance of her evidence. More generally, Mr Acevedo wishes to argue that as all guilty verdicts were dependent upon an acceptance of the complainant's account of what occurred, verdicts of not guilty on counts that were similarly dependent upon her evidence cannot rationally be explained beyond a finding that she was untruthful or unreliable. He wishes to maintain that such an inconsistency must have created a doubt that the jury should have had and which an appeal court will also have. 6. Framed in that way, Mr Acevedo submits that his grounds of appeal are at least arguable and enjoy reasonable prospects of success. I accept that the limitations upon my ability to form a view about Mr Acevedo's prospects on appeal are severely limited, in the ways articulated by Davies J and the authorities to which his Honour has referred. However, having regard to the matters that I have considered, I consider that Mr Acevedo's grounds of appeal are at least arguable and enjoy reasonable prospects of success. Incarceration pending appeal 1. Mr Acevedo has already been in custody since his convictions on 9 February 2024. He is due to be sentenced almost exactly 4 months from that date on 7 June 2024. Mr Acevedo submits that the combined prospect that he is a candidate for a community corrections order on the one hand and that by the time he is sentenced he will in any event have served four months in custody on the other hand together produce a distinct possibility that his continued incarceration may see him serving more time in gaol than he will be likely to serve following his sentence. Mr Acevedo also submits, in the same context, that his bail conditions pending trial included an onerous home detention condition, for which he ought in any event be given credit as quasi-custody as that concept is understood. Consideration 1. In my view, it cannot be said that Mr Acevedo will be sentenced to imprisonment to be served by full-time detention. It is obviously possible that he may be sentenced in that way, but it cannot be said that it is inevitable or that it is a foregone conclusion: see Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 405 ALR 371; [2022] NSWCCA 171; Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173. The sentencing options available to his Honour, having regard to the facts and circumstances of the three matters calling for sentence, the time that Mr Acevedo will have served while awaiting sentence, including quasi-custody, and the availability of a community corrections order, combine to make a non-custodial sentence a possible sentencing outcome. In addition, although I have no details of Mr Acevedo's particular subjective circumstances, it is a matter of record that he has no criminal antecedents of any relevance, including during the period of 20 years or so since the events giving rise to his convictions. However, in expressing my views for the limited purpose of this application, I should indicate the otherwise obvious fact that in no way should my views be taken to be matters of which the sentencing judge is required in any way to take account in performing his independent sentencing exercise. 2. Having regard to that conclusion, it is technically unnecessary, on the question of whether or not to grant bail, for me to consider the further question of whether Mr Acevedo has established that special or exceptional circumstances exist that would justify such a decision. However, as submissions were made in that regard, I should express my opinion having regard to the evidence. 3. Among other matters, Mr Acevedo relied upon the evidence of Carlos Salinas, his father-in-law, who provided a statement dated 15 April 2024 and the evidence of his wife, Jenifer Celia Salinas, who affirmed an affidavit on the same day. With respect to the evidence of each of Mr Salinas and Ms Salinas, I do not consider that the available material could be considered to support the existence of special or exceptional circumstances. Mr Acevedo is the sole breadwinner for his wife and his family, so the associated hardship can be taken as read. Ms Salinas has deposed to the fact that Mr Acevedo works in commercial air-conditioning installation with her father, and his income entirely supports that family's needs. Moreover, Mr Acevedo does a significant amount of work on the family farm and according to his wife he "is key to the farm's success, by rearing animals and growing different crops". Regrettably, in the context of the present application and the experience of this Court, hardships occasioned by incarceration do not without more qualify as sufficient to establish even special circumstances, far less exceptional ones. Determination 1. The Crown raised concerns that Mr Acevedo may present as a risk of endangering the safety of victims, in this case presumably the complainant, or of interfering with witnesses, once again presumably the complainant, in terms reflected in s 17(2)(c) and (d) respectively of the Bail Act. In her usual appropriate manner, the Crown conceded that there is no evidence that Mr Acevedo has attempted to interfere with or even contact the complainant and that the described risk should not be attributed "excessive weight". Moreover, the Crown also conceded that the offences occurred some two decades ago, Mr Acevedo has not come to police attention since then, and that the risk is therefore low. In my view, the Crown's limited bail concerns can be satisfactorily be ameliorated by the imposition of appropriate conditions. 2. I consider that it is appropriate to grant bail in the circumstances, subject to the following conditions: 1. Mr Acevedo is to be of good behaviour. 2. He is to appear at the District Court at Sydney on 7 June 2024 and thereafter as required. 3. He is to reside at [REDACTED] on Mondays, Tuesdays, Wednesdays, Thursdays and Fridays and at [REDACTED] on Saturdays and Sundays. 4. He is to report to the Officer-in-Charge at Narellan Police Station every Saturday between the hours of 8am and 8pm. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2024