District Court New South Wales Medium Neutral Citation: R v Robert Frederick Stuart [2016] NSWDC 23 Hearing dates: 14 March 2016 Date of orders: 14 March 2016 Decision date: 14 March 2016 Jurisdiction: Criminal Before: Whitford SC DCJ Decision: Detention Application refused. Bail Varied. Category: Procedural and other rulings Parties: Regina (Crown) Robert Frederick Stuart (Defendant) Representation: Counsel: Mr Barr (Crown) Mr Radojev (Defendant) File Number(s): 2014/172317 Publication restriction: Non-Publication Order in respect of the identity of the complainant and tendency witness. Judgment 1. On 3 February 2016, following a trial before me and a jury, verdicts of guilty were returned against the offender on four counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. 2. Immediately following the discharge of the jury, in the context of fixing a date and making consequential orders in anticipation of a sentence hearing, counsel for the offender applied for a continuation of bail pending that hearing. The continuation of bail was sought on the pre-existing conditions, which were particularly stringent and not unreasonably described by counsel for the offender as tantamount to house arrest. 3. Several reasons were advanced by counsel for the offender in support of the continuation of bail. 4. First, was the fact that the offender had in every respect complied with his strict bail conditions for an extended peroid. 5. Secondly, the offender's representatives wished to obtain reports for the purpose of the sentence hearing, including, particularly having regard to his age, in relation to the offender's health. It was submitted that obtaining those reports would be substantially facilitated if the offender was on bail. 6. Thirdly, there was at least a reasonable prospect that the offender might not receive a custodial sentence, having regard to the objective seriousness of the offending, his history and the fact that, in addition to the length of time he had been subject to a strict bail regime, he had already spent over 4 months in custody following his arrest. 7. Counsel for the offender indicated that following discussions he had apparently had with the Crown, he did not expect any resistance to his proposal. 8. I asked counsel appearing for the Crown what its attitude was to those various submissions and to the application that bail be continued. 9. The response was in the following terms: "I don't have anything to say in relation to bail or to any of the reports that have been requested by the defence." 10. I took it from that response that the Crown did not demur from anything put in favour of the continuation of bail. Accordingly, bail was continued pending the sentence hearing, which was fixed for 24 March 2016. 11. Some three weeks later a Detention Application, signed by the Director of Public Prosecutions, was filed with the Court on 23 February 2016. Following a couple of mentions, the application was fixed to be heard by me last Friday, less than two weeks in advance of the sentence hearing. The matter was adjourned to today on account of the unavailability on Friday of the offender's counsel, who was appearing in an unrelated trial at Parramatta. 12. Notwithstanding the position it took in the exchange on 3 February, which I have just outlined, the Crown now brings this application on the asserted basis that there is an unacceptable risk that the offender "will commit a serious offence and endanger the safety of victims, individuals and the community". 13. The Crown submits that risk arises having regard to the following matters. 14. First, the nature and seriousness of the offences, which, it is submitted with a degree of circularity, disclose a tendency on the part of the accused to commit serious offences with the potential to cause serious harm to individuals and the community. 15. Second, what the submissions describe as the strength of the prosecution case, by which I presume the Crown to mean the fact that guilty verdicts were returned at trial. 16. There is no evidence to suggest that the offender has at any time acted contrary to the stringent requirements of his bail conditions. That compliance has apparently been maintained without incident since the guilty verdicts were returned. 17. Whilst the offences are indeed serious, as the maximum penalty prescribed for them indicates, that fact, without more, does not give rise to a risk that in all the circumstances of this offender is not adequately met by the existing bail conditions. Nor does it seem to me that there is any basis for ascribing any greater risk now than existed prior to 3 February. Certainly there is nothing to which the Crown points in this respect which alters the position which existed at any point between 14 August 2014, when the offender was released to bail, and 3 February this year, when the jury returned its verdicts. 18. The Crown has pointed to nothing which indicates the existence of the unacceptable risks that found its application. Naturally, there is a risk, as there is with many bail determinations. However, I am satisfied that risk can be adequately met by conditions substantially the same as those to which the offender has been subject since August 2014. 19. As I have outlined, the application for the continuation of bail proceeded, among other matters, upon a basis that there was at least a reasonably arguable possibility that any sentence ultimately imposed would not involve any further full-time custody. 20. I suspect there is no dispute that a custodial sentence is the only appropriate sentence for this offending. On one view, and particularly at first blush in respect of offences of this character, it might be an ambitious expectation that any sentence might involve no further full time custody. However, three things in particular led to the conclusion that there was at least a reasonable basis for the submission that the range of appropriate sentences might include the prospect of some alternative custodial sentence. 21. Those three things are: Firstly, the time already spent in custody. Secondly, the stringency of and length of submission to the present bail conditions. Finally, the fact that experienced Crown counsel, fully cognizant of the of facts and circumstances surrounding these proceedings, not only from his involvement in this re-trial, but also from his involvement in the original aborted trial, at least implicitly, if not expressly, acceded to the reasonable possibility that the court might entertain a sentence other than further full time custody. 1. In those circumstances, it did not seem to me then, and does not seem to me now, to be a situation where one can necessarily confidently predict the sentencing outcome in the absence of all the material to be tendered on sentence. In those circumstances, absent some relevant risk that warrants a different conclusion, there was then and is now no occasion to pre-judge that outcome. 2. The Crown now submits, in support of this application, that the offending is highly likely to attract a term of imprisonment (exceeding, at a minimum, 2 years). 3. Whilst on the limited material presently before me there appears to be at least an arguable basis for submitting that some outcome other than further full time custody might be appropriate, there is also an arguable basis for submitting that further full time custody is appropriate. The latter outcome, if that is the eventual result, is not compromised in any respect by continuation of bail pending the sentence hearing and the imposition of sentence. 4. It has been put on behalf of the offender that this application arises not out of any change in circumstances pertaining to the offender or to the case itself, but was rather simply motivated by the fact that the continuation of bail has attracted some adverse comment in the tabloid media. The Crown has not responded to that submission. Nor, however, has the Crown pointed to any change in circumstances between 3 February and 23 February which informs the assessment of the relevant bail concerns or the operative matters to which regard must be had in that assessment. 5. At their core, bail decisions involve an assessment of risk. The matters prescribed in the Bail Act guide that assessment. Finding an appropriate balance of the various operative considerations in a particular case can be a difficult exercise on which minds might reasonably differ. The appropriate balance, and the engagement in the process of specific considerations, will generally, if not invariably, be different after conviction and pending sentence than before conviction. However, the process is fundamentally the same before and after conviction. 6. The demands of open justice quite properly extend to the reasonable, accurate and balanced reporting of the workings of the criminal justice system, and the progress and outcomes of trials. Publicity generally, concerning outcomes, whether they be acquittals or convictions, is right and proper and, provided it is balanced and accurate, is to be encouraged. There can be few better ways for the community to be educated and informed about the criminal process generally and the responses of courts and other institutions to this and other types of offending. 7. However, the opinions of media commentators, no matter how well informed, are irrelevant to a proper exercise of the jurisdiction. 8. It would be a blight on the administration of justice if an ostensibly independent prosecuting authority were moved to act, not in reliance on the judgment and expertise of experienced Crown counsel familiar with all aspects of the case, but rather on the musings of a plainly uninformed commentator. The efficient operation of the courts and the administration of criminal justice would be hampered if, for instance, a prosecuting authority were to be motivated by such commentary to second guess the decisions and conduct of its independent counsel. That is particularly so in matters of such little apparent practical moment as the present, involving as it does a change for a matter of days in the bail status of the offender, where there is no objective indication of any change in the meantime of the relevant risk profile. 9. The Crown in this case has pointed to no change in the status quo which justifies me coming to any different conclusion to that reached on 3 February. Nothing put points to any matter which compromises the effectiveness of the present bail conditions to adequately manage whatever risks exist. 10. The detention application is refused. I will hear the parties in relation to the application for a variation of the bail conditions. ********** 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: 02 June 2016