R v Peter Tsallas

1. [1]

   HIS HONOUR: Peter Tsallas applies for bail. He has been in custody since the date of his arrest on 21 December 2016 charged with the following offences:

   1. (1)

      Sexual intercourse with a child under the age of 16 years.

   2. (2)

      Groom child for unlawful sexual activity >14 years < 16 years.

   3. (3)

      Procure child > 14 years < 16 years for the production of child abuse material.

   4. (4)

      Incite person under 16 years of age to commit act of indecency.

   5. (5)

      Cause child > 14 years < 18 years to participate in an act of prostitution.

2. [2]

   These offences are alleged to have been committed between 14 and 15 April 2016 in the following circumstances.

3. [3]

   Towards the end of 2015 the victim posted a number of online profiles on various sexual meeting sites. The main site that she used was www.seeking arrangement.com. This website suggested that what it characterised as “Sugar Babies” could enjoy a life of luxury being pampered with fine dinners, exotic trips and allowances by what the site referred to as “Sugar Daddies”. In order to be able to post her profile on this site, the victim gave her age as 18 years old.

4. [4]

   On 14 April 2016 the victim was staying with a friend in Thornleigh. The applicant and the victim made contact with each other at this time. The victim sent three photographs of her buttocks whilst wearing underwear in seductive poses to the applicant. He then requested her to send him naked photographs, which she did. After receiving these photographs the applicant asked the victim, “You 16 or 15?” The victim replied. “16”. Thereafter the conversation continued with the applicant trying to arrange a meeting with the victim for sex in exchange for $500. During one such conversation the applicant indicated that he had a friend who liked 15 year olds. At this point the victim informed the applicant that she was 15 and offered to send him a copy of her student ID to confirm this.

5. [5]

   Notwithstanding that the applicant had been told that the victim was 15, he continued to arrange to meet her for sex in exchange for money. At one point the applicant sent a message saying, “It’s a little risky for me as your [sic, you’re] 15 not 16 but I want to do it. Will just have to be indoors.”

6. [6]

   The applicant then requested the victim to send him a photograph of herself with her top down showing her face and her breasts. She did so. The applicant replied saying, “It’s amazing. Your fucking tits wow. I’d fuck you even if you were 13. Just need to be safe. I so love teen sluts. OK. We’re [sic, where] do we meet!” The applicant and the victim thereafter continued to make arrangements to meet with the applicant at one point asking the victim if she had any 14 year old friends who would want to join in. They agreed on a price of $500.

7. [7]

   Shortly after midnight on 15 April 2016, the applicant and the victim met at Thornleigh Railway Station. They drove north in his car. The applicant asked the victim to play with his penis. The victim did so.

8. [8]

   The applicant stopped his vehicle in a secluded location believed to be at Berowra. The applicant and the victim got into the back seat of the car where they started kissing. They undressed. The victim performed oral sex upon the applicant while he digitally penetrated the victim’s vagina. They proceeded to have sexual intercourse.

9. [9]

   The applicant then drove the victim back to a street in Thornleigh. He gave her $120. She reminded him that the arrangement was for her to receive $500. The applicant said to the victim that he was doing her a favour as she really needed to earn her money and he did not want to spoil her. The applicant then drove away.

10. [10]

    In May 2016, the victim’s phone came into the possession of the police and explicit photographs and messages exchanged with the applicant were revealed. In December 2016, the victim provided the police with a signed statement. Cell tower records relating to the applicant’s phone and E-Tag data relating to his motor vehicle geographically correspond to the version of events provided by the victim.

11. [11]

    Following his arrest, the applicant participated in an electronically recorded interview with the police. He admitted exchanging text messages with the victim and meeting her at Thornleigh. The applicant denied engaging in sexual intercourse with her. He told police that they simply went for a drive.

12. [12]

    The applicant is charged with a show cause offence for the purposes of s 16B (b)(i) of the Bail Act 2013 and is accordingly required on this application to demonstrate why his continued detention is not justified.

Crown submissions

1. [13]

   The Crown contended that the case against the applicant is strong. His responses over the Internet were knowingly conducted with a girl under the age of 16 years because she had clearly told him her age. The applicant continued to engage with the victim notwithstanding and continued to attempt to arrange a meeting with her for paid sex. It is clear from objective material that the applicant met up with the victim and drove her to the Berowra area. The Crown contends that in light of the preceding arrangements it would not be accepted that sexual activity between them did not occur as the applicant maintains.

2. [14]

   The Crown submitted that there is a substantial risk that the applicant might fail to appear. The grooming offence carries a maximum penalty of 12 years with a standard non-parole period of 4 years. A substantial custodial sentence is said by the Crown to be certain following any conviction for this offence. The applicant resides alone and has no criminal record. He operates his own business and has community ties. The prospect of his first custodial sentence and the nature of the offences was said by the Crown to support an inference that the applicant would not appear if released on bail.

3. [15]

   The Crown also contended that there are significant risks that if left to his own devices the applicant may continue to meet up with under age victims in similar circumstances.

Applicant’s submissions

1. [16]

   The applicant is 40 years of age and has no criminal record of any sort. He is a responsible member of the community with a secure job and good income. He owns his own residence which secures mortgages to a financial institution that he is undoubtedly keen to service. His computer history is available to the police. The site upon which he met the victim is restricted to users of at least 18 years of age and his use of that site is not otherwise illegal or prohibited. He denies the allegation of sexual intercourse with the victim and contends that having regard to the particular circumstances attending the balance of the offending there is no certainty that a custodial sentence would be imposed for those offences alone. He rightly conceded that a similar submission would not be available with respect to the principal charge. There was in this case no suggestion that the applicant’s likely time on remand awaiting trial would be inordinately long, and indeed the suggestion was that in the case of offences of the kind in question here, a trial date may be allocated sooner than might otherwise be the case.

2. [17]

   The applicant submitted that this combination of factors was sufficient to satisfy the statutory requirement that he show cause why his detention was not justified.

Consideration

1. [18]

   In JM v R [2015] NSWSC 978 at [40], Garling J noted that “the inclusion of a requirement to show cause does not mean that the legislature has declared an intention that bail will not ordinarily or normally be granted where a show cause requirement exists”. However, as Hamill J observed in R v Xi [2015] NSWSC 1575 at [43], “the cases that have been decided by appellate courts show that the show cause requirement establishes a significant hurdle to an applicant seeking bail when s 16A is engaged”.

2. [19]

   It is convenient to recall what was said by the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20] – [26] as follows:

3. [20]

   In Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190 the Court said this at [22];

4. [21]

   It is possible, if not on one view inevitable, that minds may differ in any particular case about how these authorities should play out in the difficult discretionary exercise with which I am presently concerned. It is regrettable that the Parliament did not see its way clear to offering some guidance as to the matters that should be taken into account in assessing the show cause requirement, or better still to circumscribing a test such as a special or exceptional circumstances test, or an inclusive test specifying factors that an applicant would have to satisfy or demonstrate applied in his or her case, in order to show cause as required. (A special or exceptional circumstances test is still to be found in s 22 of the Act but not relevantly for present purposes).

5. [22]

   It is not unusual in a consideration of whether or not an applicant for bail has satisfied the show cause requirement that the decision depends upon a comparison between a strong Crown case on the one hand and the prospect of an unacceptably long period on remand on the other hand. In the present case I consider that the Crown case is strong and that the applicant faces the inevitability of spending a not insubstantial period in custody if convicted. I am however bound by authority to accept that “there is nothing particularly special or unusual in… lack of criminal antecedents, ties to the community and strong family support”. It is not difficult to think of any number of factors that might qualify as satisfying the show cause requirement in most cases, such as impending death from disease or injury, illness that could not properly or adequately be treated in gaol, significant mental or physical disability making custody more onerous, threats of assault or established violence that could not be adequately ameliorated by Corrective Services or the need for protective custody coupled with a lengthy period of remand. Those examples are clearly not exhaustive.

6. [23]

   Unfortunately for the present applicant, I am unable to identify anything propounded by the applicant that satisfies me on the balance of probabilities that he has shown cause why his detention is not justified. As the Court in Brooks at [23] was quick to point out, what amounts to changed circumstances “should not preclude the [applicant] making a further application for bail at a later time.”

7. [24]

   It follows in my view that bail should be refused. It is unnecessary in those circumstances to consider whether there are any bail concerns that might affect the making of a bail decision.