R v Pratten (No 10) [2012] NSWSC 1673

Supreme Court New South Wales

Medium Neutral Citation: R v Pratten (No 10) [2012] NSWSC 1673 Hearing dates: 12 March 2012,14 March 2012,19 March 2012-23 March 2012,6-29 March 2012,02 April 2012,04-05 April 2012,11 April 2012,14-30 April 2012,01 May 2012-02 May 2012,04 May 2012,07 May 2012,09 May 2012-01 June 2012,04 June 2012, 06 June 2012,06 July 2012 Decision date: 06 July 2012 Jurisdiction: Common Law Before: Rothman J Decision: 1. The Court makes no order as to bail subject to bail conditions. Catchwords: CRIMINAL - BAIL - Interlocutory proceedings - accused charged with obtaining financial advantage by deception contrary to s 134.1 of the Criminal Code Act 1995 (Cth) - adjourned sentence hearing - bail application made to revoke the Court orders because of accused conduct - bail is continued Legislation Cited: Bail Act 1978 (NSW) Criminal Code Act 1995 (Cth) Proceeds of Crime Act 2002 (Cth) Category: Procedural and other rulings Parties: Regina (Crown) Timothy Charles Pratten (Defendant) Representation: Counsel: K. Chapple SC with B. Hatfield (Crown) M. Leighton-Daly (Defendant) File Number(s): 2010/315475

EX TEMPORE JUDGMENT 1. HIS HONOUR: Mr Pratten was judged and found guilty of seven counts of dishonestly obtaining a financial advantage by deception, contrary to the provisions of s 134.2 of the Criminal Code Act 1995 (Cth). 2. The verdict of the jury was returned on 13 June 2012. At the time of the trial, which lasted approximately 52 days, and for a significant period prior thereto, Mr Pratten was on bail. On 13 June, following return of the verdict by the jury, I continued the bail pending the outcome of the sentence proceedings. 3. The Crown approaches the court in its jurisdiction under the Bail Act 1978 and, as part of its continuing inherent jurisdiction to deal with orders made by it, to vary the orders in relation to bail by revoking it, because of conduct of Mr Pratten which, the Crown submits, would lead to the conclusion that Mr Pratten is a flight risk and/or otherwise in disregard of the orders of the Court otherwise made, and on that basis ought be refused bail. 4. The further conduct of Mr Pratten is conduct which occurred in or about May 2012 and June 2012, before and after the return of the verdict to which I have referred. 5. The conduct alleged by the Crown is that the accused sought to arrange for a vessel called "Los Lobos" to be transported out of the jurisdiction, namely, to Vanuatu, a location which, on the material adduced in the trial, is one to which Mr Pratten has some connection. That conduct, it is said, was a contravention of orders made by this Court on 21 November 2011 to the effect that the vessel Los Lobos, being the property of Astrolabe Services Limited, not be disposed of or otherwise dealt with pursuant to the terms of the Proceeds of Crime Act 2002 (Cth). 6. It is a criminal offence under s 37 of the aforesaid Act for a person to dispose or otherwise deal with property in respect of which there is an order of that kind. Mr Pratten has been charged with that contravention. The Crown, being the Commonwealth DPP, does not seek at this point in time to punish Mr Pratten for the contravention of the restraining order, which is a matter currently before the Local Court, and returning to the Local Court on 27 August 2012 but, rather, points to the contravention as indicating a disregard, if not contumelious disregard, of the orders of the Court and, more importantly, given the nature of the contravention, pointing to a capacity to or a willingness to, or evidence of a willingness to flee the jurisdiction himself. 7. The grant of bail pending sentence in circumstances where the sentence involves usually the imposition of a custodial sentence is unusual but was granted in these circumstances because I anticipated that there would be significant debate as to the degree to which Mr Pratten obtained a financial advantage from the Commonwealth for which he was found guilty. 8. Ultimately, none of the parties here, including the Court as presently constituted, are privy to the deliberations of the jury, and those disputed aspects are matters that are highly relevant to the question as to whether a custodial sentence would be appropriate. 9. Whether or not bail is granted, even at this point, is a matter upon which the Court is mandated to consider those matters contained in s 32 of the Bail Act. The two most important aspects, or overriding aspects, of the criteria in s 32 are the risk of flight, as I will call it, and the protection of the community and witnesses in the proceedings. 10. The risk of flight is particularised in a number of ways. It is referred to in s 32(1)(a) of the Bail Act as the probability of whether or not the person will appear in court in respect of the offence for which bail has been considered, and includes the person's background and community ties, any previous failure to appear, the circumstances of the offence, and any evidence of a probability that he will not appear, and includes such factors as the likelihood that there will be a substantial period of imprisonment imposed, the need to be free to prepare a case, et cetera. I do not read all of the sections or provisions. 11. The conduct in seeking to arrange for the boat to leave the jurisdiction, if true, is conduct that is, and should be, of great concern to the Court, because it reflects a disregard to the orders of the Court and a willingness to engage in conduct known to be unlawful. I have accepted for the purpose of these proceedings that organising for the property to be transported out of the jurisdiction is to deal with the property and, therefore, constrained by the terms of the order issued by the Court under the Proceeds of Crime Act. 12. Other factors going to the question of the grant or refusal of bail or its revocation are the other legitimate interests that Mr Pratten has in being at liberty, and they include the fact that he has care of his older daughter, who is sixteen years of age, and the fact that he has a number of other communal ties. Certainly he is required to assist in the preparation of his sentencing proceedings, which will not be uncomplicated because no special verdict is available, and some of the facts adduced at trial may give rise to quite complicated aspects with which the Court will need to deal during the course of the sentencing procedure. 13. The other aspect with which the Court is required to deal is the question of the protection of the community and the protection and welfare of the community. To the extent that one confines oneself to the contravention of the Proceeds of Crime order it is noteworthy that the property that was sought to be dealt with has since been transferred to the public trustee, by order of Schmidt J made on 28 June 2012, which was executed on 29 June 2012. All of the other property to which restraining order relates is property that is fixed or registered in Australia, being real property or shares in Australian companies. 14. As a consequence, the likelihood of a repetition of this particular offence is limited. 15. As to the offences for which Mr Pratten was convicted, the likelihood of them being repeated is, one would think, extremely limited, in the circumstances that they were offences associated with the non-declaration of income. 16. It seems to me that there is no serious risk relating to the protection of the community or its welfare with Mr Pratten being on conditional liberty. It also seems, and I am satisfied that, there are interests of Mr Pratten which inform a view that he should remain on conditional liberty and the only - and I do not use the word "only" to minimise it - but the only remaining consideration is the risk of flight. 17. As to the risk of flight, it seems to me that there are two or three aspects. The first is, as I said, the care of his older child. The second is his financial ties to the community generally. The third is the history that Mr Pratten has displayed in terms of his behaviour on conditional liberty. 18. We have had two offences, or two breaches of the bail conditions. The first is a breach of bail condition by altering residential address without earlier informing the law enforcement authorities and seeking an alteration to the bail conditions, for which breach Mr Pratten spent, it seems, one day in custody. And now we have had the alleged contravention of the restraining order, which would be a breach of the condition to be of good behaviour. 19. Against that it has to be said Mr Pratten has been under a charge for serious offences since 2010, over two years. He has been in the trial, as I said, for fifty-two days, and attended on each occasion that was necessary, and upon which he was before the Court. He is here today. Each of those attendances speaks in favour of his ability to turn up for proceedings when they occur. 20. Mr Pratten's passport is currently in possession of the law enforcement authorities, and he has daily reporting conditions. It seems to me it is a very fine issue. On the one hand we have the disregard of orders of the Court. It seems to me, however, that the disregard of the orders of the Court is a matter that is the subject of current criminal proceedings, and to the extent that they require punishment, will be punished in those proceedings. 21. To the extent that they are relevant to the question of flight risk it seems to me that the countervailing factors outweigh that factor and, subject to two matters, I am prepared to continue bail. 22. The two matters are that the conduct seems to me to raise the risk of flight, albeit not to a level that I would refuse bail, but I will vary the bail conditions that are necessary in order for Mr Pratten to continue to be on conditional liberty in the following way: FOR BAIL CONDITIONS SEE COURT FILE