R v Vincent

Legislative Framework

1. Section 19(1) of the Bail Act 2013 (NSW) ("Bail Act") provides that: "a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk."
2. Accordingly, in determining if there is an unacceptable risk, I must have regard to the bail concerns as set out in s 17(2) of the Bail Act.
3. In R v Lago [2014] NSWSC 660, Hamill J indicated that the provisions of the Bail Act cast an onus on the party who is opposed to the grant of bail. In relation to the assessment of unacceptable risk, his Honour stated at [8] - [9]: "The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states''...see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1.... ...The cases on bail recognise that "no grant of bail is risk free": see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said: "Bail when granted is not risk free. Williamson v DPP (QLD). As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld)."
4. Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) of the Bail Act sets out a list, which is both mandatory and exhaustive, of the factors to be considered by the bail authority in assessing bail concerns under s 17 of the Bail Act: see Raad v R [2015] NSWSC 532.

Section 18(1) Matters

1. I have considered the following matters pursuant to s 18(1) of the Bail Act: 1. The applicant is a 33-year-old Aboriginal woman who was removed from the care of her mother and placed into the care of her father at a very young age. She is estranged from all her family except her father with whom she reported a close relationship. 2. The applicant left school in Year 7 and moved in with her then boyfriend. She had her first child at 14 years of age and another child at the age of 16. After three years in this relationship, she left due to being a victim of domestic violence. 3. The applicant does not have criminal associates. 4. While the alleged offending is serious, I am not persuaded that it necessarily crosses the s 5 threshold. If it does, I am not persuaded that it is inevitable that the applicant would be sentenced to full-time custody, given her deprived background, substance abuse, and mental health issues. Even if the s 5 threshold were met, a sentencing court would have to consider the appropriateness of imposing an Intensive Correction Order. 5. The applicant reported that during her stay at Dubbo Base Hospital Mental Health Inpatient Unit, she was diagnosed with drug induced psychosis which related to her cannabis and methamphetamine use. She commenced using cannabis at the age of 14 and methamphetamines at the age of 19. 6. The Justice Health Report ("Report") states that the applicant had recently experienced a drug induced psychosis reciprocated by cannabis and methamphetamine abuse. On assessment, she did not present with any acute positive symptoms of psychotic illness, although presented with a decreased ability to feel pleasure, affective flattening, and a-sociality. 7. The author of the Report states that she is at significant risk of cannabis and methamphetamine relapse if she does not receive proper treatment. It is recommended that she re-engage with the Dubbo Aboriginal Medical Service and the Dubbo Community Mental Health Drug and Alcohol Service. It is also recommended that she accept and comply with all treatment, including taking prescribed medication. 8. The applicant has a lengthy criminal record, which does demonstrate a history of non-compliance with court orders. However, she has only had one prior offence of being armed with intent. That offence was dealt with in 2007, some 15 years ago. In 2016, she was convicted and sentenced for an offence of assault. She was dealt with by way of bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). She was called up on that bond and sentenced to one month imprisonment. The applicant has also been sentenced for assault police and contravening an Apprehended Violence Order. 9. The applicant's NSW Corrective Services Records indicate a history of depression and self-harm. It is abundantly clear that the applicant requires ongoing and intensive medical attention.
2. I accept that the bail concerns relied on by the Crown are legitimately raised given the applicant's criminal record and previous breaches of bail. However, the estimation of risk is always difficult to assess. The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk. In R v Tsintzas [2017] NSWCCA 172, at [50], N Adams J said: "Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, "The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk." I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk."
3. An assessment of whether the risk is unacceptable also includes consideration of whether the risk can be mitigated by bail conditions: see R v Hamilton [2022] NSWSC 127 at [14].
4. It is well recognised in this Court that bail decisions involve a discretionary evaluative judgment on a variety of factors about which, and within limits, reasonable minds may differ. Every bail application presents its own unique factual matrix, and the bail authority must have regard to such facts when making a determination under the Bail Act: see DPP v Zaiter [2016] NSWCCA 247 at [31]; R v Peter Tsallas [2017] NSWSC 64 at [21].

The Bugmy Bar Book

1. The applicant relies upon the Bugmy Bar Book Chapter titled 'Impacts of Imprisonment and Remand in Custody' ("the Chapter"). [1] Research shows that imprisonment has negative impacts on the physical and mental health of incarcerated individuals, and these impacts persist after release. [2] Other documented impacts of imprisonment include loss of housing, barriers to employment, and significant negative impacts on families and communities, which may affect families and communities in different ways. [3]
2. The family and community impacts of incarceration are more pronounced for Aboriginal and/or Torres Strait Islander Peoples, particularly women. [4] Loss of culture and disconnection from Country and community due to imprisonment may have adverse impacts on the social and emotional well-being of Aboriginal and/or Torres Strait Islander Peoples incarcerated. [5]
3. Even short periods of incarceration, including remand, can have a wide-ranging detrimental impact and may be linked with subsequent contact with the criminal justice system. [6] The Chapter refers to research which shows that people who receive non-custodial penalties are significantly less likely to be re-convicted, even within the next 12 months, than those who receive sentences of imprisonment. [7]
4. The Australian Government Productivity Commission (2021) found the 21% of people in prison have a history of self-harm. [8] In this case, as indicated above, the applicant's NSW Corrective Services Records indicate a history of self-harm and depression.
5. The 2009 New South Wales Inmate Health Survey found that First Nations Peoples in prison "were more likely to have ever attempted suicide than non-Aboriginal inmates and Aboriginal men were more likely to have ever self-harmed". [9]
6. The Australian Law Reform Commission (2017) found that "being held in prison for even a short period of time can be disruptive and destabilising, especially for women where the 'social as well as the financial costs of these short-term remands can be very high'". [10]
7. The Bugmy Bar Book research is a useful resource which has assisted the Court in understanding the impact of remand in custody, even for short periods. The research lends context to the material that has been tendered on behalf of the applicant which relates directly to her individual circumstances and background. The impact of incarceration on First Nations Peoples, and, in particular, First Nations women should never be under-estimated.
8. Given that I am not persuaded that, even if found guilty, the applicant would necessarily be sentenced to a term of full-time custody, I am satisfied that the applicant should be released to bail. In making that determination, I have had regard to the amended proposed bail conditions and, in particular, the conditions which direct the applicant to re-engage with the Dubbo Aboriginal Medical Service and the Dubbo Community Mental Health Drug and Alcohol Service for assessment, care, and treatment. The applicant's underlying issues will be better treated and managed outside of the custodial environment. Such treatment and care will better serve the protection of the community.
9. Accordingly, I grant bail.

Endnotes

1. Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (Public Defenders, Chapter, 2022).
2. Ibid 1.
3. Ibid 14.
4. Ibid 17.
5. Ibid 10.
6. Ibid 1.
7. NSW Bureau of Crime Statistics and Research, Reoffending Statistics for NSW (Web Page, 15 August 2022) in Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (Public Defenders, Chapter, 2022) 2.
8. Australian Government Productivity Commission, Australia's Prison Dilemma (Research Paper, October 2021) 21.
9. Devon Indig et al, 2009 NSW Inmate Health Survey: Aboriginal Health Report (Justice Health, Report, 2010) 47.
10. Australian Law Reform Commission, Pathways to Justice - An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report No 133, December 2017) 153 [5.25].

Amendments 19 January 2023 - Error on cover page 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: 19 January 2023