Applicant v Respondent

1. The applicant and the respondent agree that the applicant must be denied bail unless she satisfies me that 'exceptional circumstances' exist that justify the grant of bail.[2]
2. In considering whether exceptional circumstances exist that justify the grant of bail, I must take into account the 'surrounding circumstances'.[3] The surrounding circumstances are 'all the circumstances that are relevant to the matter' and include: whether the applicant would be sentenced to a term of imprisonment; the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant's criminal history; the extent to which the applicant has complied with the conditions of any earlier grant of bail; whether, at the time of the alleged offending, the applicant was on bail for another offence; the availability of treatment or bail support; the view of the alleged victims; and the applicant's 'personal circumstances, associations, home environment and background'.[4]
3. If I am satisfied that exceptional circumstances exist that justify the grant of bail, I must then grant bail unless I am satisfied there exists an 'unacceptable risk' that the applicant would, if released on bail, commit a Schedule 1 or Schedule 2 offence, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of bail.[5] When considering whether a risk of that type is an 'unacceptable risk', I must again take into account the 'surrounding circumstances' and consider whether the imposition of any bail conditions could mitigate the risk to one that is not an unacceptable risk.[6]
4. In considering both whether exceptional circumstances exist that justify the grant of bail and whether there is an unacceptable risk of the kind referred to above, regard must be had to the overarching importance of maximising the safety of the community and persons affected by crime, and also to the presumption of innocence and right to liberty of persons who have not been, and may never be, found guilty of the charges alleged against them.[7]
5. Also, s 3A(1) of the Bail Act 1977 provides that I must also take into account 'any issues that arise' due to the applicant's Aboriginality including:

(a) the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;

(b) the risk of harm and trauma that being in custody poses to Aboriginal people;

(c) the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community;

(d) any issues that arise in relation to the person's history, culture or circumstances, including the following -

(i) the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;

(ii) any experience of out of home care, including foster care and residential care;

(iii) any experience of social or economic disadvantage, including homelessness and unstable housing;

(iv) any ill health the person experiences, including mental illness;

(v) any disability the person has, including physical disability, intellectual disability and cognitive impairment;

(vi) any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child; and

(e) any other relevant cultural issue or obligation.

1. These matters inform and are powerful factors in the evaluations involved in determining whether there are 'exceptional circumstances that justify the grant of bail' and if so whether there is an 'unacceptable risk', but are not determinative of those questions.[8]

1. The respondent has conceded that a finding that exceptional circumstances exist is open and has not submitted that exceptional circumstances should not be found.
2. In my view, there are exceptional circumstances that justify the grant of bail, subject of course to the 'unacceptable risk' test. The factors that cause me to reach this conclusion are the applicant's pregnancy, her Aboriginality and deprived background, and the fact that the aggravated burglary charges have not been associated with any acts of physical violence.

1. It is not contended that the applicant poses a flight risk, in the sense that she might leave Victoria or Australia, or that there is a real risk that she will attempt to interfere with witnesses or otherwise obstruct the course of justice. In those circumstances, the applicant is entitled to bail unless the respondent can establish that, if she is released on bail, there is an unacceptable risk that the applicant will commit a Schedule 1 or Schedule 2 offence, endanger the safety or welfare of any other persons, or fail to answer bail.
2. It is not contended that there is a real prospect that the applicant would, if released on bail, be physically violent or commit an offence such as carjacking or trafficking in large quantities of drugs of dependence. It was submitted, however, that there was an unacceptable risk that the applicant would:

(a) Commit a Schedule 1 or Schedule 2 offence such as aggravated burglary, of the type that it is alleged she had previously committed;

(b) Engage in conduct that, although not directly physically violent, would endanger the safety or welfare of other persons; and

(c) Fail to answer bail.

G.1 Risk of committing a Schedule 1 or Schedule 2 offence or endangering the safety or welfare of other persons

1. Theft and burglary are not Schedule 1 or Schedule 2 offences, but aggravated burglary is. Entering into somebody's home in order to steal is only aggravated burglary if somebody is present at the time, or if the person entering has a weapon or explosive with them (which is not what is alleged here). It follows that for the purpose of assessing whether to grant bail, I must place little weight on the applicant's extensive history of thefts, but must focus on the risk that she might enter into another's property, while someone is present, with the intention of stealing.
2. Also, I accept the respondent's submission that the 'safety or welfare' of other persons may be 'endangered' through persistent but non-violent acts including property crimes. An obvious example would be where an applicant for bail is repeatedly targeting a specific person or group of persons. In that way, the repeated non-violent offending may 'endanger' them in the sense of causing emotional damage. Also, where an applicant for bail instead steals effectively at random (as is the nature of the allegations here), including from vulnerable people by preying on their age or good natures, I accept that this too carries a risk or likelihood of 'endangering' the mental health or welfare of the victims. In this way, I accept the respondent's submission that stealing from vulnerable people causes them real harm, not just economically but also emotionally and that the impact on them, and the harm caused, may be very significant even in the absence of physical violence.
3. That said, I note that:

(a) There is only one charge where it is alleged that the applicant entered another's property other than through the door, and that is the charge for the alleged 21 August 2025 offending. All other occasions on which aggravated burglary is alleged are occasions where the applicant took advantage of an opportunity to enter to the knowledge of the owner and, she would say with the owner's consent and without her then having an intention to steal;

(b) It is not alleged that the applicant ever refused to leave when asked or was orally abusive or committed an act of physical violence;

(c) I was told that Mr Mitchell has pleaded guilty to the 21 August 2025 charges. There are, however, triable issues in the case against the applicant for these charges. There is no direct evidence that the applicant entered the property or that she directly participated in the burglary. I was told that CCTV footage shows the applicant and Mr Mitchell together a few hundred metres away from the Shelley Street house on the way to the Olympic Village Shopping Centre and CCTV footage that shows them together at the Olympic Village Shopping Centre and the video taken by the male resident shows her with Mr Mitchell at the time of the confrontation but this, at least arguably, does not prove beyond reasonable doubt that the applicant either participated herself in the alleged burglary or was complicit in its being done, rather than merely being present when or shortly after the alleged crime was committed. Also, and although, some of the stolen goods were located at her house, her counsel told me that Mr Mitchell was also living there at that time;

(d) Between the applicant's release on bail in early April 2025 and the 21 August 2025 alleged offences, she appears not to have engaged in repeated criminal behaviour following the pattern that, on the allegations, was established as occurring prior to that date. The only offending alleged (other than the failure to answer bail on 28 May 2025) is the use by her and Mr Mitchell of a stolen credit card on 8 July 2025. This is consistent with a reduction in alleged criminal activity on her part, following her pregnancy and engagement with support services over that time; and

(e) As noted, nearly all of the applicant's alleged offending, including the alleged 8 July 2025 and 21 August 2025 offending, took place in the company of Mr Mitchell. Mr Mitchell is currently in prison and will not be released until 4 November 2025. So, if released on bail, the applicant will not be able to spend time with Mr Mitchell, even if she were otherwise inclined to do so, until that date.

1. In support of her application, the applicant called evidence to the effect that, should she be released on bail:

(a) She would have a place to live.

(b) She would continue her antenatal treatment at the Mercy Hospital for Women where she is receiving culturally-appropriate support. Her child is due on 3 April 2026. She had a checkup scheduled for 29 September 2025.

(c) She would continue a process, that she had commenced approximately three weeks prior to her arrest, with the Department of Families, Fairness and Housing directed at ensuring that she would be able to keep custody of her newborn child next year and, hopefully, regain custody of her one-year old. As part of this process, she would undergo drug screening three times a week.

(d) Court Integrated Services Program, or 'CISP', will provide and coordinate support services for her, including a referral to Djirra, a support service that deals with family violence, and the Victorian Aboriginal Health Service which assists people with drug and alcohol problems. She had appointments booked with the Victorian Aboriginal Health Service for 10am on 1 October 2025 and with CISP for 2:30pm on the same date.

(e) Ms Melissa Walshe of the Law and Advocacy Centre for Women would continue, with CISP, to provide support. The applicant would go from custody to her office to be given support such as a mobile phone and then to be taken to her residence. Ms Walshe gave oral evidence and specifically stated, on oath, that she would remain engaged with the applicant and do her best to ensure that she appeared at court on 12 November 2025. Further, she would facilitate the obtaining of a neuropsychological assessment (an appointment for which had been booked) and then explore the availability of assistance from NDIS. It seems that assistance may also be provided with an application for an intervention order that would prevent Mr Mitchell from contacting her on his release from prison - although I accept that this may not be a straightforward process in circumstances where I have not heard from Mr Mitchell and he is, I was told, the father of the applicant's unborn child.

(a) The applicant, as a vulnerable and pregnant Aboriginal woman, would face a degree of hardship in custody; and

(b) The applicant had, to the date of the application, been in custody for 22 days on this period of remand, and had previously spent 21 days on remand, coming to a total of 43 days on remand. Any trial might not be until late this year or early next year. If it is early next year, the applicant might end up spending some six months on remand if bail were not granted, and there is a prospect, then, (albeit no certainty) that this period of remand would exceed any period of imprisonment imposed, if she is found guilty.

1. The respondent submitted, in essence, that the applicant had had all these supports available to her on previous occasions and that they had not prevented her from reoffending and that the likelihood was that, whatever good intentions might be expressed in the context of an application for bail, the reality is that there was no reason to consider that the applicant would not simply fall back into her old habits. Indeed, it was submitted that the recent offending indicated an 'escalation' in the level of the applicant's offending.
2. I do not see the more recent charge as indicating, for the purposes of this application at any rate, an 'escalation' in the applicant's offending. It is equally able to be seen as an event that indicates the poor influence that Mr Mitchell might have had on her, as it is only him that is directly implicated, particularly in light of the period of relative crime-free months enjoyed by the applicant prior to this episode.
3. I note, too, that bail was sought only until 12 November 2025, which was approximately one week after Mr Mitchell will be released from prison. There will be an opportunity for the Magistrates' Court then to consider whether further bail should be granted, if such an application were made, having regard to the progress, or lack of progress, between now and then.
4. There is, of course, a risk that the applicant if released on bail will commit an aggravated burglary. In deciding whether that risk is an unacceptable risk, regard must be had to the level of that risk, the likely consequences to the community if she were to engage in that behaviour, and the consequences for her if she is not released on bail. Balancing these matters, and notwithstanding that I accept that the respondent's concerns are genuine, I was not satisfied that the risk is an unacceptable risk if the applicant is bailed to 12 November 2025 on conditions that she reside at an identified residence, respect a curfew, report regularly to her local police station, and attend the various appointments that are currently scheduled and follow the lawful recommendations for treatment of the services who are assisting her.

1. As noted above, there is only one charge in recent times of the applicant failing to answer bail.
2. In circumstances where Ms Walshe has sworn that she, as the applicant's case manager, will do her best to remind the applicant of her court commitments and to ensure that she turn up ('providing immense wraparound services to support her', in her words), I was also not satisfied that there is an unacceptable risk that the applicant would fail to answer bail.

1. As noted, and for the reasons set out above, I granted the applicant bail until 12 November 2025. If she wishes her bail to be extended beyond that date, an appropriate further application will need to be made, the resolution of which will no doubt be informed by events as they have transpired between now and then. I imposed conditions including that she reside at the identified address, remain there and produce herself if requested by a police officer between 10pm and 5am (unless she is seeking medical attention), report to her local police station each Monday, Wednesday and Friday, attend the scheduled and upcoming meetings with CISP and at the Mercy Hospital for Women and the Victorian Aboriginal Health Service and follow the lawful directions made by and treatment programs arranged by those bodies, and not contact Mr Mitchell.

[1] There was some uncertainty as to whether the applicant was already on bail, or was seeking bail, for the offences alleged to have been committed on 8 July 2025. My decision and reasoning would have been the same if the applicant were already on bail for the offences alleged to have been committed on 8 July 2025.

[2] Section 4AA(1) provides that the exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence and aggravated burglary is now a Schedule 1 offence. Section 4AA(2)(c) provides that the exceptional circumstances test applies to a decision of whether to grant bail if the offence is alleged to have been committed while the person was on bail for a Schedule 1 or a Schedule 2 offence.

[3] Ibid s 4A(3).

[4] Ibid s 3AAA.

[5] Ibid s 4E(1).

[6] Ibid s 4E(3).

[7] Ibid s 1B.

[8] See, eg: HA (a pseudonym) v The Queen [2021] VSCA 64, [58]-[59] (Maxwell P and Kaye JA_); Re application for bail by Vicky McKay_ [2024] VSC 59, [34] (Niall JA); Re Terei [2024] VSC 294, [61] (Incerti J); Re RK [2024] VSC 792, [5]-[6] (Niall JA); Re Males [2024] VSC 802, [39] (Incerti J).