R v Bottomley

Legislation Cited: Bail Act 2013 (NSW), ss 17, 19, 49

Category: Principal judgment

Parties: Rex (Crown)
Karina Bottomley (Applicant)

Representation: Counsel:
J Gilbert (solicitor) (Crown)
M Wade (solicitor) (Applicant)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Applicant)

File Number(s): 2026/00065431

Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: Karina Bottomley has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (the Act).

2. The applicant is presently 38 years of age. She has been in custody since her arrest on 23 September 2025, a period of approximately five months.

3. She has been charged with offences of larceny, attempted armed robbery with an offensive weapon and demanding property with menaces. The allegations are serious. In short, on 23 September 2025 the applicant was captured on closed circuit television footage entering into a retail store where she picked up two knives and left the store without making any attempt to pay. According to the police facts, she then went to the Commonwealth Bank at Kingsgrove where she walked up to the counter and faced a member of staff, who was approximately one metre away behind a counter and at least a partial screen. The applicant is alleged to have reached into her pocket and produced a knife, presumably one of the items taken earlier from the shop resulting in the larceny charge. The blade of the knife is described as being about five centimetres in length.

4. The applicant is alleged to have said to the staff member, “I want five thousand dollars.” He was placed in obvious fear, concerned that the applicant would reach through a gap in the screen with the knife. Understandably, he pressed the panic button under the counter, activating the security system and causing metal shutters to rise and block the accused.

5. Other staff members came out of their offices into the public area. One of those staff members approached the applicant but backed away when the knife was observed.

6. Police entered and produced a taser. The applicant was directed to drop the knife. She complied and was immediately handcuffed and placed under arrest.

7. The application is one to which the unacceptable risk test applies. Pursuant to s 19 of the Act, if I am satisfied on the basis of an assessment of bail concerns the applicant presents an unacceptable risk then bail must be refused.

8. The bail concerns are set out in s 17 of the Act. In the present case I have a concern with respect to the risk that the applicant will commit a serious offence or otherwise endanger the community. That concern arises from a combination of the allegation before the Court and the applicant’s record. With respect to the allegation itself, the case appears to be a strong one, lending force to the relevant concerns.

9. With respect to the applicant’s record, it is regrettably extremely lengthy. There is little doubt that it is related to particular deficits suffered by the applicant, a matter to which I will return. In short, the applicant has numerous entries involving offences of assault, assaulting police, custody of a knife in a public place, resisting police, assault occasioning actual bodily harm, damaging property and assaulting police occasioning actual bodily harm.

10. The frequency with which such offences have been committed has resulted in regular periods of imprisonment. The applicant first entered custody in 2011. From November 2011 to January 2012 the applicant was sporadically in custody. She then had a significant period where she was able to remain out of custody until 2014, some two and a half years in total. From that time, however, the applicant was in custody significantly more often than she was in the community, in the main spending only periods of weeks in the community before being released to parole in December 2016. The applicant was then out of trouble until 2019 and out of custody until 2022. That represents a six year period in which she was able to remain in the community, representing a significant period of stability. From that time on, however, that is from around May 2022, there has been a reversion to a pattern involving her going in and out of custody, generally spending no more than a few months in the community.

11. The applicant is, as I have said, a person who suffers from various conditions and is in significant need of support. It is clear that her particular needs have caused her to come into contact with the criminal justice system from time to time. She is, it seems to me, however, to be a person that the criminal justice system struggles to deal with. Certainly in terms of any sentencing, she is someone in relation to whom one would expect general deterrence would play very little role. She is also someone in relation to whom specific deterrence is likely to play no role, other than any period in which she is actually kept in custody.

12. The problem faced by the criminal justice system is exacerbated by the difficulty experienced in managing her in a custodial situation. Since being in custody the applicant has self-harmed on a number of occasions, resulting in serious injury. Tendered on the application is a letter from Dr Gary Nicholls, the executive medical director of Justice Health, in which he states:

“[The applicant’s] ability to self-harm despite the RIT protocols is reflective of the challenges of managing chronic self-harming behaviour in custody. While Justice Health NSW can and does meet the acute healthcare needs arising from [the applicant’s] disability/behaviour, […] Justice Health NSW is not resourced to manage her requirement for disability supports. Nor is Justice Health NSW supported by the carers that [the applicant] would usually have in the community via the NDIS program. The result is that she spends long periods unsupported.”

13. Dr Nicholls goes on to state:

“Justice Health NSW continues to meet the acute healthcare needs of patients like [the applicant] within custody. However, Justice Health NSW is not funded to the provision of intensive support for [the applicant’s] disability and behavioural needs that underlie her chronic self-harming. The care provided to [the applicant] is significantly limited by the custodial environment and by the staffing resources available. It is clearly not equivalent to the level of carer support able to be provided in the community by carers under the NDIS.

From a healthcare perspective, patients like [the applicant] are very challenging to manage in custody. The high level of resources required to approximate any equitable care necessitates a diversion of clinical resources away from other acutely unwell patients in clinics and the service in general. Furthermore, Justice Health NSW is not resourced to manage the complex needs arising from her disability.”

14. That frank acceptance of the difficulty faced by Justice Health provides a significant context for this application.

15. In relation to the support available to the applicant in the community, she currently has available to her accommodation through an organisation called Goodcare. Material tendered on the application establishes that she has been with them for the past two years, which is apparently the longest she has been able to maintain a residency. That is as a result of the proactive position taken by the Goodcare staff.

16. In relation to the proposal for bail, the applicant puts forward the availability of a home detention condition. That condition would only allow her to leave the residence where she is housed when in the company of a support worker, or to obtain emergency medical treatment.

17. In the event that she is granted bail, Goodcare have indicated that two support workers, one from Goodcare and one from disability support services, will be able to collect her immediately and transport her to her residence.

18. In this residence there are security cameras. Material tendered on the application indicates that “[i]n addition, a personal monitored camera can be implemented to further support supervision and compliance with any bail conditions imposed by the Court.”

19. Adopting a sensible and practical approach, the respondent on the application accepts that the conditions available, in particular home detention with the particular providers, are sufficient to mitigate the otherwise obvious concerns such that they are not unacceptable.

20. With respect to other bail concerns, that is a risk of failing to appear or interfering with witnesses or evidence, those concerns are also mitigated so as to not be unacceptable.

21. Given those findings, bail is granted subject to conditions.

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