Re application for bail by Vicky McKay [2024] VSC 59 (22 February 2024)

(a) intentionally cause serious injury;

(b) recklessly cause serious injury;

(c) intentionally cause injury;

(d) recklessly cause injury; and

(e) state false name.

2 The charges relate to an incident at the applicant's unit in Kingsbury. The prosecution alleges that, earlier on that day, she met the complainant in the context of purchasing drugs. The two of them returned to her unit. When in the unit, the complainant went into a bedroom. The applicant became very agitated saying that it was the room of her late son. She became increasingly agitated and took up two kitchen knives and stabbed the complainant multiple times, causing serious injury to his abdomen and limbs requiring hospitalisation including a period in ICU. Emergency services arrived. The applicant and complainant were the only people present in the unit.

3 I am told that self-defence will be the critical issue at trial and that the applicant does not dispute stabbing the complainant.

4 At the time of the alleged offending, the applicant was serving an 18-month community correction order ('CCO') imposed on 14 December 2021 in the County Court. That CCO was part of a combined sentence that was imposed for intentionally causing injury and contravening a family violence intervention order ('FVIO') by stabbing her then-partner multiple times with a knife.

5 On 21 October 2022, that is, after the applicant was remanded on the present charges, the applicant was resentenced in the CCO matter to 22 months' imprisonment, with 258 days already served. The resentencing arose as a result of contraventions of the CCO.

6 On 24 January 2024, the applicant was sentenced to 69 days' imprisonment (declared already served by way of pre-sentence detention) in relation to a further matter which involved contravening a final personal safety intervention order ('PSIO') and interim FVIO, committing an indictable offence whilst on bail, failing to answer bail, contravening a conduct condition of bail, and theft.

7 It follows from that brief chronology that, although the applicant was remanded in August 2022, the period since then has been the subject of a sentence imposed by the County Court which ended on 28 November 2023 and the sentence imposed by the Magistrates' Court which ended on 21 January 2024.

8 The trial of the current charges is listed to commence on 14 May 2024.

9 In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 ('the Act').

Determination in relation to an Aboriginal person

10 In making the assessment, it is relevant and important to understand that the applicant is an Aboriginal person. The applicant is a Yorta Yorta woman. In making a determination in relation to an Aboriginal person, the Court is required to take into account any issues that arise due to that person's Aboriginality, including -

(a) their cultural background, including ties to extended family or place; and

(b) any other relevant cultural issue or obligation.[1]

11 In discussing these provisions in the case of HA (a pseudonym) v The Queen, the Court of Appeal held:

Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.

The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[2]

12 As the applicant is charged with a Schedule 2 offence within the meaning of the Act,[3] which is alleged to have been committed during the period of a CCO made in respect of the applicant for another Schedule 2 offence,[4] bail must be refused unless she can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[5] In considering whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those relevant in s 3AAA(1) of the Act.[6]

13 If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the unacceptable risk test. Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[7] In considering whether any relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[8]

14 Finally, s 5AAAA(1) of the Act provides that, in considering the release of an accused on bail, the Court must make inquiries of the prosecutor as to whether there is in force a FVIO, family violence safety notice or recognised domestic violence order made or issued against the applicant. The prosecution advised that the applicant is currently subject to two FVIOs.

15 On 24 April 2023, a final FVIO was made naming the complainant as the protected person and the applicant as the respondent. The order contains full no contact conditions and expires on 23 April 2025.

16 As noted, the applicant is a 48-year-old Yorta Yorta woman. She has a significant history of trauma, bereavement, substance dependence and homelessness.

17 She has long-term problems with drugs including heroin and substantial mental health problems including records of depression, general and specific anxiety, and vulnerability to substance abuse.

19 The applicant has 42 prior convictions for bail-related offending: 25 prior convictions for failing to answer bail, 10 convictions for committing an indictable offence whilst on bail, and seven convictions for contravening a conduct condition of bail.

Section 3A considerations

20 The applicant emphasises the mandatory considerations which the Court must take into account under s 3A of the Act, including the applicant's cultural background, ties to extended family or place, and other relevant cultural issues or obligations.

21 The applicant submits that bail is a significant matter for Aboriginal and Torres Strait Islander applicants, both because of their overrepresentation in the criminal justice system and for cultural reasons.

22 It is emphasised that, as a child, the applicant was often separated from her mother due to drug and alcohol abuse. Further, the applicant has experienced significant family violence in her relationships, leading to homelessness, trauma and substance abuse from an early age.

23 In this context, it is submitted that the applicant figures in the overrepresentation of Aboriginal women who experience intergenerational trauma which leads to substance abuse, family violence, and separation from family. It is also noted that Aboriginal women in Victoria are 6.5 times more likely to report being the victim of family violence offences than non-Aboriginal people.

24 The applicant asserts that her lengthy criminal history should be viewed in light of this, in particular the difficulties that Aboriginal women experience in accessing culturally-appropriate support for drug and alcohol use, family violence and trauma.

25 Similarly, the applicant submits that her failure to appear at court, offending while on bail, and poor compliance with bail conditions, ought to be viewed in the context of her Aboriginality and her vulnerability.

26 The applicant says that her lack of compliance with the CCO imposed in 2021 should be considered in the same respect, noting family bereavement, , that she was the victim of a burglary, and that she had been assaulted by her former partner.

27 The applicant also relies on HA (a pseudonym) v The Queen for the proposition that culturally-appropriate programs (such as those available to the applicant upon release) are pivotal in diverting Aboriginal offenders from entrenched offending behaviour, and are relevant both to the assessment of risk and to the establishment of exceptional circumstances.[9]

28 The applicant submits that she has strong ties to the jurisdiction, including stable accommodation at her property in Kingsbury, together with numerous support services that maintain her links to the community.

29 In helpful oral submissions, the applicant says that the period of time between now and trial would provide the opportunity for the applicant to continue with her rehabilitation which has been very good since she has been in custody. She has engaged well with support staff including counsellors from CASA. She has provided an important mentor role for other indigenous women in prison. More recently she has changed units to work on her own rehabilitation.

30 The applicant relies on a number of supports in the community that she has utilised or are available should she be released including:

(a) Specialist Trauma Service offered by WestCASA;

(b) Elizabeth Morgan House's ReLink and ReConnect program which the applicant has been involved with since August 2023 (Elizabeth Morgan House is an Aboriginal community controlled organisation that provides specialist family violence services to Aboriginal women and children);

(c) In July 2023, the applicant completed Drummond Street Service's 12-week 'Living Free from Violence' program while in custody.

31 There are a number of features that impact on my assessment both of whether there are exceptional circumstances and the risk to the community if a grant of bail is made.

32 The charges relate to very serious violent offending. That is relevant to exceptional circumstances in that, if the applicant is convicted, it is inevitable that she would be at risk of a substantial term of imprisonment that would exceed any time on remand. It is also obviously relevant to the risk to the community. That risk is exacerbated by reason of the prior conviction for stabbing her partner for which she was still on a CCO at the time the current charges were alleged to have occurred.

33 The applicant has a very substantial criminal record. Again this is relevant to any disposition following a conviction and the record also demonstrates a high frequency of breaching bail conditions and offending while on bail.

34 The fact that the applicant is an indigenous woman is an important matter that this Court must take into account in the manner identified in the Bail Act and as explained in decisions of this Court and the Court of Appeal. It is important that the court considering whether to grant bail assess whether there are alternatives which can ameliorate or avoid incarceration on remand and be conscious of the very real and additional burdens that incarceration has for indigenous people.

35 I also acknowledge that the applicant has sought to use her time in prison well. She has actively engaged with treatment and has avoided drug use. Continuation of that progress would be for the applicant's benefit and for the benefit of the broader community. However, I am not persuaded that success would easily translate to a community environment without extensive supervision. The applicant has a past history of breaching a CCO and has relapsed into drug use.

36 As the Court of Appeal noted in an application for leave to appeal the sentence imposed in the County Court, the applicant's compliance with her CCO was desultory and ceased in May 2022. I understand at that point she relapsed into heroin use. I am aware that the relapse followed personal tragedy and difficult situations but nevertheless it represents a significant matter in my present assessment of how the applicant might fare on bail.

37 It is also relevant that the trial of the charges is listed to commence in May 2024. A judge of the County Court refused bail on the basis that exceptional circumstances were not established and of the risks that would be associated with a grant of bail. I have read those reasons, and the reasons given largely accord with my own independent assessment of the current material.

38 It is important to minimise the time on remand to the extent that is reasonably practicable having regard to the many factors that influence the listing of criminal trials. In the current context I do not regard the delay from now until May as being unduly long although I am conscious of the heavy burden that incarceration on remand entails.

39 Given the seriousness of the charges, the expected time between now and trial and the burden of remand I do not regard the circumstances as being exceptional so as to justify the grant of bail.

40 Further, given the history including a recent conviction for stabbing a partner and the many breaches of bail and court orders, I am satisfied that the risk of granting bail would be unacceptable. Those risks include the risk of further offending and a failure to answer bail.

[1] Act, s 3A.

[2] [2021] VSCA 64, [58]-[59] (Maxwell P and Kaye JA) (citations omitted).

[3] Namely, intentionally causing serious injury, an offence against s 16 of the Crimes Act 1958; see the Act, sch 2, item 6.

[4] Namely, committing an indictable offence while on bail; see the Act, sch 2, item 30.

[5] Act, ss 4AA(2)(c)(i) and 4A(1)-(2).

[8] Act, s 4A(3)(a).

[9] [2021] VSCA 64, [58]-[59] (Maxwell P and Kaye JA).