Re Campbell [2025] VSC 591 (17 September 2025)

1 On 5 September 2025, I heard an application for bail in respect of Declan Campbell ('the applicant').

2 At the conclusion of the hearing, I was not satisfied that the respondent had demonstrated that the applicant posed an unacceptable risk of the kind outlined in s 4E(1) of the Bail Act 1977 ('the Act'). Accordingly, I granted the applicant bail. These are my reasons.

3 The applicant is seeking bail in this Court on two sets of charges, which I will refer to as the 'Informant Formosa' and 'Informant Carfoot' matters. In total, those matters include one charge of criminal damage by fire (arson), five charges of theft or attempted theft, and six charges of committing an indictable offence on bail.

4 He was remanded on both of those matters on 29 May 2025. A bail application was made on that date, which was adjourned until it was withdrawn on 13 June 2025. The applicant again made an application for bail in July 2025, which was ultimately refused by the Magistrates' Court at Swan Hill on 24 July 2025.

5 The matters are next listed for committal mention in the Bendigo Magistrates' Court on 15 October 2025.

6 On the morning of 22 May 2025, the applicant attended a thrift shop in Kyabram. A staff member observed the applicant attempting to steal a silver chain and asked him to replace the chain, which he did in an aggressive manner. This conduct forms the basis for charge 9 (attempted theft).

7 Later that same day, at 11:15pm, the applicant returned to the thrift shop. By methods unknown, the applicant proceeded to light a fire at the rear of the store before leaving the scene. The fire was extinguished roughly 90 minutes later. The current cost for repairs is estimated to be in excess of $625,000 although the total cost remains unknown. This forms the basis of charge 1 (criminal damage by fire (arson)).

8 On 28 May, the applicant took a propane torch kit and gas cylinder, valued at $100, from a store in Kyabram and left without attempting to pay. This is the basis of charge 7 (theft (shopsteal)).

9 Later that same day, the applicant attended a supermarket. He is seen on CCTV removing a mobile phone valued at $179 from its box and placing it in his jacket pocket before leaving the store without attempting to pay. This is the basis of charge 3 (theft (shopsteal)).

10 Approximately 10 minutes later, he attends another shop. The manager of the shop observed him place a wallet on display inside his jacket pocket. The manager requested he return the item, and the applicant complied and left the store without further incident. This is the basis of charge 5 (attempted theft).

11 The applicant was on bail at the time of this alleged offending, and has therefore also been charged with five counts of committing an indictable offence on bail (charges 2, 4, 6, 8 and 10).

12 On 9 May 2025, the applicant entered a supermarket in Echuca. He was depicted on CCTV taking a three-pack of work socks and two 750ml bottles of beer (worth $31 in total) and concealing them down the front of his pants. He then left the store without attempting to pay. He was subsequently charged with theft and committing an indictable offence on bail.

13 In addition, the applicant has a significant number of outstanding matters. For present purposes it is sufficient to note that the alleged offending is all relatively low-level. The most serious of the outstanding offending is the Informant Locke (1) and Informant Finn offending.

14 In the Informant Locke (1) matter, the applicant is alleged to have stolen approximately $8000 by unauthorised bank transfer from a vulnerable woman that he was briefly in a relationship with.

15 In the Informant Finn matter, the applicant is alleged to have used a set of car keys in his possession to steal a car from a driveway. He was arrested and found in possession of a small amount of cannabis, a dangerous article (a pool ball in a sock) and with alcohol and methylamphetamine in his system.

16 The majority of the rest of the alleged offending is minor thefts and handling of stolen goods, low level drug or weapons possession, and burglaries (which are all non-violent and alleged on the basis of an intent to steal).

17 The applicant is not charged with an offence listed in Schedule 1 or 2 of the Act, and therefore has a prima facie entitlement to bail.[1] However, the Court must refuse bail if satisfied, by the respondent,[2] that the applicant poses a risk of the kind set out in s 4E(1) of the Act, and that the risk is an unacceptable one.

18 The assessment of whether such an unacceptable risk exists requires consideration of the surrounding circumstances as set out in s 3AAA(1) of the Act, as well as whether the imposition of any bail conditions would mitigate the risk to an acceptable level.[3]

19 Additional considerations apply in relation to an applicant who identifies as an Aboriginal person. In such cases, the court must take into account any issues that arise due to the person's Aboriginality, including, but not limited to, those explicitly enumerated in s 3A.[4] Similarly, if the court is considering imposing on an Aboriginal applicant a condition of bail requiring attendance and participation in a bail support service, it must have regard to the importance of participation in Aboriginal bail support services where available and appropriate.[5]

20 There is now a long line of precedent discussing the relevance of s 3A of the Act not only to the assessment of 'exceptional circumstances' or 'compelling reason' (where applicable), but also to the assessment of 'unacceptable risk' - I do not propose to repeat those comments in any great detail.[6] As I said in Re Terei,[7] proper consideration of s 3A is more than just a box-ticking exercise - when considering unacceptable risk for an Aboriginal person, the bail decision maker must have the s 3A matters at the forefront of their reasoning. In cases where the applicant's risk teeters on the edge of being unacceptable, consideration of the factors in s 3A may mean that the applicant does not pose an unacceptable risk.

21 Notably, further changes to the Act have been enacted since my decision in Re Terei. Of particular import is the insertion of s 1B(1AA), a standalone section effectively replacing the repealed s 1B(1)(a) of the Act, which reads:

The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.

22 Section (1)(b) of the Act immediately follows, and outlines that Parliament also recognises the importance of taking account of the presumption of innocence and the right to liberty. It is intended that the Act should be applied and interpreted having regard to each of the matters in s 1B.[8]

23 The applicant is a young Aboriginal man of the Wiradjuri people through his paternal line. He turned 25 on the date of his application for bail before this Court.

24 The applicant was raised by both parents until they separated when he was 16. He has experienced periods of homelessness since his late teens, including prior to his remand. Although he has the support of his family, including his mother, father, and maternal grandfather and step-grandmother, they are unable to provide the applicant with accommodation.

25 The applicant completed Year 12 but did not engage in tertiary education. He has had a limited but diverse employment history, but was unemployed at the time of his remand. He has actively participated in billet roles whilst in custody, and has indicated a desire to pursue employment within the hospitality sector on release.

26 The applicant has a history of anxiety and depression predating his remand, which declined following a serious assault in 2023. He has been prescribed both an anti-depressant and an anti-psychotic in custody, and is compliant with that treatment. There is a suggestion that he has previously been prescribed Seroquel and medicinal cannabis. He reported that remand is having an increasingly negative impact on his mental health, including the development of suicidal ideation, and indicated he would obtain a mental health care plan and prescription medication through a general practitioner in Bendigo should he be released on bail.

27 The applicant has indicated problems with illicit substances from the age of 20, namely cannabis and methylamphetamine, which he used as a means of managing his severe symptoms of anxiety and depression. He engaged in alcohol and drug treatment with the Salvation Army at the beginning of this year. He was referred to a 12-month residential rehabilitation program, but exited the program after four days due to a mental health crisis. He instructs that he is currently abstinent, developing insight into his drug use and previous relapses, and intends to remain abstinent in the community, preferably with the assistance of the Salvation Army. He has also indicated a strong interest in attending Narcotics Anonymous meetings upon release.

28 The respondent alleges that, even accounting for the applicant's personal circumstances and proposed supports and bail conditions, the applicant presents an unacceptable risk of:

(a) Committing a Schedule 1 or Schedule 2 offence;

(b) Endangering the safety or welfare of any person; and/or

(c) Interfering with a witness.

29 The applicant submits that any risk posed in relation to him endangering the safety and welfare of any person or interfering with a witness can be reduced to an acceptable level through the imposition of appropriate conditions. The applicant also contends that, as he is not charged with a Schedule 1 or Schedule 2 offence, nor on bail for those offences, he does not pose a risk of committing such offences.

Whether time on remand would exceed any likely term of imprisonment

30 As of the date of the bail application, the applicant has spent 100 days in custody. Given that the Informant Formosa matter is still at an early stage, it is anticipated that he will spend a number of additional months on remand prior to resolution.

31 The applicant contends that it is 'not inevitable' that he would receive a term of imprisonment if found guilty of the offences he is facing. In their submission, taking into account a number of mitigatory factors the applicant has in his favour, a non-custodial disposition or a sentence involving no further period of imprisonment would be open to the sentencing judge. It is therefore likely that his time on remand would exceed any term of imprisonment imposed at sentence.

32 In their submission, this is a 'consideration of significant importance ... in considering whether such risk as an offender would present if released on bail is acceptable.'[9]

33 The respondent submits that any delay has not, and may never, reach the point of being 'unacceptable'. They similarly submit that there is a 'good possibility' that the applicant, if found guilty of the arson, would be sentenced to a relatively lengthy term of imprisonment.

34 In relation to the arson charge, being the most serious charge faced by the applicant, he submits that although the damage is significant, it was damage to an unoccupied commercial building. In the applicant's submission, this is therefore 'not the most serious' example of this offence.

35 In contrast, the respondent submits that the alleged offending is a serious example of arson. The building was unoccupied, but is located in a residential area near a timber yard, posing a significant risk to nearby residents. Similarly, elderly witnesses for the prosecution have been consulted and indicate that they fear retribution from the applicant. The respondent also notes that extensive damage was caused, with the repair costs currently estimated at $625,000, and rising.

36 While the respondent submits that the prosecution case in relation to the arson is strong, the applicant notes that the prosecution relies on poor-quality CCTV footage in support of their case. Identification is a triable issue. There are also other unresolved matters (namely the question of intention and the quantum of damage) which would be relevant to any future sentencing exercise. The respondent also notes that the applicant made full admissions during police questioning to the Informant Carfoot offending.

37 The applicant has no criminal history, but does have a number of outstanding matters. With the exception of the Informant Locke (1) matter, all of this outstanding offending was alleged to have occurred between December 2024 and his remand in May 2025.

Existing court orders at the time of offending and compliance with previous bail

38 At the time of the alleged offending, the applicant was on 12 counts of bail and summons for other offences. Those counts of bail relate to 57 charges from 45 incidents.

39 He also has a number of outstanding charges for contravening a conduct condition of bail, and committing an indictable offence on bail. However, the applicant notes that many of the breaches of his bail conditions (namely the reporting, residential and curfew conditions) are attributable to his being asked to leave his bail address, and his homelessness therefore presenting a barrier to compliance.

40 The respondent also notes that the applicant failed to engage with the Njernda Aboriginal Corporation ('Njernda'), which was a condition of his bail at the time of the offending.

41 At the time of the offending, the applicant was also subject to an active family violence intervention order ('FVIO'), where the respondent is the victim in the Informant Locke (1) matter. That FVIO was served on the applicant on 5 July 2024 and is due to expire on 2 July 2026. There have been no alleged breaches of that order.

Special vulnerability (ie, Aboriginal person)

42 The applicant's Aboriginality places him at a higher risk of harm and trauma in custody.[10] That vulnerability is compounded by his relative youth, and the fact that this is his first time in custody. The applicant submits that this vulnerability is 'more than a mere hypothetical' - he has been the victim of an assault in custody and, as a result, has spent much of his time on remand in solitary management for his protection.

43 As explained above, the applicant has a strong relationship with his father, who is a Wiradjuri man. As he does not live on country, his father is his connection to country. Through him, the applicant has learnt the Wiradjuri language and traditional bushcraft. The applicant enjoys traditional dot painting and had used this practice as a means of coping whilst on remand, but has not had access to his materials whilst in protective custody. His contact with his father whilst on remand has also been extremely limited. His connection to culture, kinship and community should be maintained and developed.[11] If he is granted bail, the applicant would be in a position to resume regular phone contact with his father and visits to his grandparents.

44 The applicant is also connected to the Aboriginal community in Echuca, as well as local Aboriginal services such as Njernda in Echuca, and the Bendigo & District Aboriginal Co-Operative ('BDAC').

45 He has experienced social and economic disadvantage, including homelessness and unstable housing for almost his entire adult life.[12] He suffered poor mental health prior to his remand, which has continued and worsened during his time in custody. He is also suffering ongoing pain following an assault in custody, and is experiencing lengthy delays in accessing prescription medication or consultation by a doctor.

46 The applicant intends to have his matters heard in the Koori Court, and further time on remand may deter or hinder his participation.

47 While the respondent acknowledges and accepts the relevance of the applicant's Aboriginality and his experiences in custody to this application, they submit that those factors are insufficient to 'tip the scales of risk' from unacceptable to acceptable.

Availability of treatment or bail support services

48 The applicant has culturally specific support available through Njernda. The Court received a letter from Mr Colin Atkinson, Local Justice Worker from the Wellbeing Unit at Njernda. Mr Atkinson explained that Njernda would offer the applicant the opportunity to participate in the Dardi Munwurro Healing and Behaviour Change Group, a weekly program run by a respected and knowledgeable Elder which has been successful in helping Indigenous men with problems of drug and alcohol use and other psychosocial issues. He also indicated that the Njernda Wellbeing Unit had launched a new program - Dunyak Woka (to Fish on Country) - which allowed for Indigenous persons to come out on country and support each other through fishing, talking with Elders, and other peer support and cultural practices.

49 Mr Atkinson indicated that the applicant had previously engaged 'quite regularly' with Njernda while he had a bail address.

50 The Court also received a Cultural Pathways Plan authored by Ms Chanel Kinniburgh, Koori Jurisdiction Partner, Dhumba Murmuk Djerring Unit.

51 In her report, Ms Kinniburgh explained that in the event that the applicant was bailed to Bendigo, BDAC also offers a broad range of culturally safe supports including alcohol and drug counselling. Their Wakangu Manya Housing team provides tenancy and homelessness support, including assistance through the Aboriginal Private Rental Assistance Program and the Aboriginal Tenancy At Risk program. She outlined that further housing and homelessness supports are available in Bendigo through Haven Home Safe (which offers crisis accommodation, rental assistance, transitional housing and outreach services) and the Madcow community support group (which offers personal care and hygiene services).

52 Ms Kinniburgh also noted that a referral to Dardi Munwurro's Ngarra Jarranounith Place - a 16-week residential healing and behaviour change program for Aboriginal men relating to family violence - could be considered. That program provides a range of psychosocial support and case management, underpinned by cultural guidance from Elders, with 18-months follow-up support available. Ms Kinniburgh noted that the applicant's arson charge would not exclude him from participation in this program.

53 The Court also received a report from the Court Integrated Services Program ('CISP'), in which the applicant was recommended for case management by the Bendigo CISP team. He has had no previous involvement with CISP prior to July of this year where his application for bail was refused.

54 The report outlined that an initial treatment and support plan had been arranged for the applicant, should he be granted bail:

(a) Three nights' accommodation arranged in Melbourne, from Friday, 5 September to Monday, 8 September;

(b) Free travel arranged from Melbourne to Bendigo on Monday, 8 September, where upon arrival, the applicant is expected to connect with the Bendigo Winter Night Shelter for immediate shelter support;

(c) A meeting with his CISP Case Manager and an Initial Planning and Assessment phone appointment with the Salvation Army on Tuesday, 9 September, following which the applicant will be referred for intake with the BDAC Wukangu Manya team for housing support;

(d) A new patient consultation with a doctor at the BDAC Medical Clinic on Monday, 15 September 2025; and

(e) CISP to support the applicant to engage with BDAC for ongoing alcohol and drug treatment and discuss appropriate referrals.

55 The respondent submits that many of these supports were also available to the applicant at the time of the alleged offending, and the implication of Mr Atkinson's letter is that the applicant did not engage very well (or at all) with Njernda in the absence of stable accommodation. It is therefore questionable that these supports are effective in mitigating risk, particularly noting that the applicant has not proposed a stable bail address. They also note that previous bail appeared to recommend the applicant engage in residential rehabilitation services, and noted that there was no material before this Court about any efforts made to engage those services.

56 The respondent notes that the applicant's homelessness appears to be a major contributing factor to his alleged offending. He has no offer of housing available from his family. They note that although the applicant is said to have lived with Elders from the local Aboriginal community, there is no material before the Court detailing when those arrangements were, and whether they were successful. They note that two sets of bail orders from April 2025 list two different residential addresses. Ultimately, they submit that without a fixed and stable address, the applicant's risk of further offending and endangering the community remains unacceptable.

57 While the applicant concedes that his transience is connected to some of his offending, and that the bail plan does not provide for long term housing, he submits that the risk should nevertheless be found to be acceptable, particularly in light of the considerations required under s 3A of the Act.

Commit Schedule 1 or 2 offence and/or endanger safety or welfare of any person

58 The respondent contends that the applicant's various outstanding matters have escalated in seriousness. The allegations of arson are serious, and the alleged offending was particularly dangerous due to its location and the resulting genuine risk that the fire would spread uncontrollably and endanger nearby residents. It is alleged that the fire was lit as retaliation for the confrontation about the attempting shoplifting earlier that day. Similarly, they note that a number of the outstanding matters involving possession of weapons or other dangerous articles are troubling.

59 In response, as explained above, the applicant submits he does not pose a risk of committing a Schedule 1 or 2 offence and that the risk of him endangering the safety or welfare of a person can be reduced to acceptable level through the imposition of bail conditions. The applicant points to a number of salient features of the alleged offending and outstanding matters. Although he has a number of outstanding matters, they are largely temporally confined. Noting the applicant's young age and lack of criminal history, it therefore cannot be said that his criminality in entrenched. Similarly, none of his alleged prior offending are for charges listed in Schedule 1 or 2 of the Act. The applicant submits that none of the alleged offending is violent or involving family violence, although in this respect I must note that the FVIO that is in force. The applicant says the theft and burglary offences are largely 'nuisance offences against public and commercial organisations' where the stolen goods are usually recovered.

60 The applicant submits that this offending is exactly the 'low-level nonviolent offending' that Parliament sought to distinguish from 'serious offending that was causing the community harm and indeed concern'.[13]

61 The respondent notes that various elderly witnesses fear for retribution from the applicant, noting that Kyabram is a small community and it would not be difficult for the applicant to identify where they live.

62 The applicant has suggested the following conditions might be imposed to mitigate any risk to an acceptable level:

(a) The applicant reports to either Bendigo or Echuca Police Station as frequently as appropriate;

(b) The applicant engages with Njernda Aboriginal Corporation, Bendigo District Aboriginal Cooperative and/or the Court Integrated Services Program, as directed;

(c) The applicant notifies the informant of any proposed change of address within 24 hours;

(d) The applicant reside as directed by CISP or CROP;

(e) The applicant be excluded from the Kyabram City Centre and from broader Kyabram, unless visiting his partner, brother, or grandparents; and

(f) Judicial monitoring.

63 The respondent notes that these conditions are similar to what was in place at the time the applicant allegedly committed this offending. Similarly, his itinerant lifestyle creates practical difficulties in terms of his ability to engage with support services, and for police to monitor him.

64 They note that there is apparently no suitable address for the applicant in Campaspe Shire, and Informant Formosa told the court at the hearing it would be 'setting him up to fail' if he was bailed to reside in the Campaspe or Kyabram Shire regions. Informant Formosa explained that if the court were to bail the applicant it would be better to bail him to Bendigo where there support services he could access.

65 They also note, based on evidence given by Njernda workers at previous bail applications, that he has not engaged with Njernda services in Echuca despite having had every opportunity to do so.

66 While submitting that these conditions are insufficient to reduce risk to an acceptable level, should bail be granted, they submit that conditions should also be imposed as follows:

(a) The applicant not consume alcohol or use illicit substances;

(b) The applicant reside at a particular address;

(c) The applicant adhere to a curfew between 9pm and 6am; and

(d) The applicant is not to approach prosecution witnesses.

67 The applicant's Aboriginality and considerations flowing from that as spelt out in s 3A of the Act, and set out above, were of central importance in the application. I have also had regard to a number of matters set out in the non-exhaustive list of surrounding circumstances set out in s 3AAA(1) of the Act.

68 The matters set out in ss 3AAA and 3A are not considered in a vacuum. In determining an application for bail and applying and interpreting the relevant provisions of the Act, bail decision makers must have regard to the to the guiding principles set out in s 1B of the Act. In this regard, s 1B(1AA) 'recognises the overarching importance of maximising, to the greatest possible extent possible, the safety of the community and persons affected by crime'. However, the Court must also recognise the importance of taking into account the presumption of innocence and the right to liberty as well as, relevantly, the importance of promoting fairness in bail decision making along with the other matters set out in s 1B(1) of the Act.

69 Before considering the specific factors relevant to this case, it bears repeating what I said in Re Terei - that taking into account the Aboriginality of an applicant is not simply a box-ticking exercise. It is a significant factor to which serious regard must be given and which informs every consideration and the perception of every aspect of the applicant's application and encourages us to not contribute to incarceration levels unless there is a good reason to do so. It requires a decision-maker to look beyond the personal circumstances of the applicant and to the entrenched disadvantages of a class of people of which the applicant in this case is a part.[14]

70 Section 3A considerations must also be viewed considering the cultural rights possessed by Aboriginal people and protected under s 19 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[15]

71 I accept that, as a young man, the applicant's connection to his family and particularly his connection to his father, culture and country have been protective factors for him.

72 I have had regard to the applicant's homelessness[16] and the impact that this has inevitably had on his interface with the criminal justice system. It is no coincidence that his criminal offending is temporally connected to his drug use and homelessness. Indeed, the applicant accepted as much.

73 Homelessness can be both a cause and consequence of involvement with the criminal justice system. The potentially catastrophic impacts of homelessness are well known. The Australian Institute of Health and Welfare has described those who are homeless, or at risk of homelessness, as being among 'Australia's most socially and economically disadvantaged' and explained that homelessness is associated with 'a higher risk of adverse health, social, and economic outcomes'.[17]

74 Sadly, in this regard, Aboriginal and Torres Strait Islander people are 10 times more likely to experience homelessness than non-indigenous people.[18] Put another way, Australian Bureau of Statistics data from the 2021 census shows that approximately one in five - or 20.4 per cent of - people experiencing homelessness in Australia are Aboriginal and/or Torres Strait Islander Australians.[19]

75 The Yoorrook Justice Commission's Third Interim Report highlights the interplay between housing insecurity and the overincarceration of First Nations people.[20] It underscores how unresolved tenancy issues, particularly in the absence of early, culturally safe legal support, can escalate into homelessness. This, in turn, increases vulnerability to criminalisation, particularly for poverty-related and public order offences.[21] Critically, the absence of suitable accommodation is a common reason for bail refusal, contributing to disproportionately high remand rates among First Nations people.[22]

76 Yoorrook heard that due to housing shortages, 'prison has become de facto accommodation for growing numbers of our First Nations people'.[23] Notably, the Report states:

Post-release, the ability to secure suitable housing is the critical factor in remaining out of the criminal justice system. Yoorrook heard that many First Peoples are unable to obtain bail or parole because they do not have access to accommodation. For those leaving prison on straight release, Yoorrook also heard that the difficulty in accessing housing creates a fear of facing homelessness. In Victoria, First Peoples are 18 times more likely to seek homelessness support after release from custody than are non-First Peoples. Witnesses told Yoorrook that a lack of rental history for those exiting the criminal justice system presents an additional barrier. The Aboriginal Justice Caucus noted that discrimination at application stage 'often accelerates their pathway into homelessness and more often than not, re-offending'.[24]

77 I wish to make several observations in light of these findings. First, and fundamentally, it is not a criminal offence to be homeless in Victoria and, indeed, various international instruments make access to adequate housing a human right.[25] As bail decision makers we must be incredibly careful not to treat applicants punitively simply because they are homeless.

78 In this regard, I have also considered the comments of Niall JA in Re Marino:[26]

Although the assessment of risk for the purposes of deciding whether or not to grant bail has a protective purpose, it should be remembered that bail is not designed as a means of preventative detention. Still less should it be used as an alternative to stable housing in the community.[27]

79 Subject to the caveat that all bail decisions must of course be determined by reference to the circumstances of the particular matter, the mere fact an applicant is homeless (in the absence of other risk factors) is unlikely to in and of itself constitute an unacceptable risk within the meaning of s 4E of the Act such that bail must be refused.

80 I hasten to add, I do not understand this to be the submission made by the respondent in this case.

81 I consider the applicant is at risk in custody because it is his first time in custody and his relative youth.

82 There is evidence that custody has had a deleterious effect on his mental health. In a previous CISP report dated 23 July 2025, the applicant described experiencing suicidal ideation when feeling particularly low in custody.[28] While his prescribed medication has contributed positively to the stabilisation of his mental health, the applicant reported experiencing delays in receiving other prescription medication and waiting to be seen by a doctor in custody.

83 The applicant has been a victim of assault in custody and has subsequently been placed in solitary management for his protection for a significant portion of his time on remand.[29]

84 The evidence before the Court of the applicant's experience in custody is alarming and a red flag for the potential harm being in custody poses to him.

85 Even short periods of incarceration, including remand, can have wide-ranging detrimental impacts. There is a real and 'high risk of harm' and trauma to the applicant posed by his continued remand by virtue of his 'Aboriginality alone'.[30]

86 I also repeat what I said generally in Re McLaughlin[31] in a context where:

Aboriginal people continue to die in Victorian prisons at high rates, not because they are more likely to die when in prison compared to other people, but because governments are locking first peoples up at shockingly high rates. Since the [Royal Commission into Aboriginal deaths in custody], 34 Aboriginal people have died in custody, 24 in the custody of Corrections Victoria. In the past four years alone, six Aboriginal people have died in the custody of Corrections Victoria ...[32]

87 Although the applicant has many outstanding matters, they are overwhelmingly confined to a six-month period and he does not have an entrenched offending history. I accept that his offending appears connected to a crisis period of increased drug use, homelessness, and poor mental health.

88 The alleged arson is troubling. The offending was brazen conduct, in circumstances where he had just been placed on bail by the Echuca Magistrates' Court and had a litany of outstanding charges. It not only speaks of an escalation in the seriousness of the applicant's offending, but also a serious disregard of bail conditions.

89 While I do not consider it to be the most serious example of arson, it is nonetheless a serious example of the offence. Even though the building was unoccupied at the time of the fire, it was close to residential properties and resulted in considerable cost and loss to a not-for-profit organisation. An aggravating factor is that the arson appears to have been committed out of a sense of grievance. I have also had regard to the views of the complainants and in particular, the evidence of a neighbour regarding the real fear and danger the fire placed her and her young child in.[33]

90 In relation to the other outstanding matters, involving charges of theft, burglary and drug and weapon possession, I do not consider that they are serious examples of those offences.

91 While a bail application is not the forum for determining the strength of the prosecution case, I consider that on the face of it, the case is at least of reasonable strength.

92 The applicant has been on remand since 29 May 2025 and it is likely that he would spend additional months on remand if not bailed prior to any resolution of the matter.

93 Given the number of outstanding charges and the serious nature of the arson charge, it is difficult to estimate what sentencing disposition the applicant would receive if found guilty. I accept the submission made on his behalf that a non-custodial sentence or a sentence requiring no further period of imprisonment remains open to him. As the Court of Appeal emphasised in HA (a pseudonym) v The Queen,[34] the continued pretrial detention of a person who is unlikely to receive a custodial sentence may amount to a form of 'preventative detention [which is] alien to fundamental principles that underpin our system of justice'.[35] The unlikelihood of a custodial outcome is 'necessarily a most powerful factor in determining whether, if the appellant were granted bail, the risks of him offending, or endangering others, were unacceptable'.[36]

94 The applicant's compliance with the various sets of bail can at best be described as poor. Many of his contraventions occurred within a noticeably short time after each grant of bail was made. The bail conditions did not stop him from committing further offences. To the contrary, as I have said, his most recent offending is an escalation in the seriousness of his offending.

95 Countervailing this is the fact that the applicant has spent approximately 100 days on remand and it is his first time in custody. He has been the victim of an assault in that time. His experience in custody will have had a salutary effect on him. The applicant has remained abstinent from drugs whilst in custody, which along with his homelessness, is a significant contributor to his offending.

96 The Court is confronted with significant competing and conflicting factors which I am required to balance in determining whether the applicant poses an unacceptable risk as alleged by the respondent. I consider there are a number of strong factors mitigating against such a conclusion, including his age, his lack of prior criminal convictions, his experience on remand and vulnerability in custody, and the likelihood that his time on remand would exceed any period of detention which might be ultimately imposed on him. Critically, I have had regard to the applicant's Aboriginality and the considerations in s 3A of the Act.

97 On the other hand, I have weighed the considerations which militate in support of the conclusion that the risk is unacceptable. They include the applicant's repeated alleged offending while on previous grants of bail, his failure to properly connect with and seek assistance from services that were made available to him, and his lack of a stable address.

98 The question for this Court is what, if any, bail conditions could ameliorate the risk the applicant presents such that it is not an unacceptable risk. I have had regard to the cultural pathways plan and CISP reports submitted on the applicant's behalf. The services outlined in those documents (in particular, BDAC, Haven Home Safe and Madcow) are based in the Bendigo area and, between them, provide culturally appropriate services and realistic connections to interim housing for him.

99 I acknowledge that if he is released on bail, the applicant does not have stable accommodation and the services available to him do not necessarily provide for long-term housing.

100 I also accept that the absence of a static address will make it more difficult for the applicant to benefit fully from the protective supports and services proposed, and for the police to monitor him.

101 However, the lack of stable housing available to the applicant should not be a reason for denying him bail.

102 There are services available and ready to support the applicant, including assistance with accommodation options, that will ameliorate the risks such that they are acceptable. CISP and the other service providers are to be commended for the significant package that they have put together on this occasion, even if in some respects - such as the emergency accommodation available being a shared facility in a scout hall - the services are less than ideal.

103 I note that Leading Senior Constable Formosa observed that in her opinion, it would be setting the applicant up to fail if he were bailed to his previous residence in Kyabram. I agree with that submission. However, I also consider that we would be setting the applicant up to fail more broadly if bail was refused, and thus his access to these protective factors was denied, simply because of the shortage of accommodation available to him. That comes dangerously close to punishing the applicant simply for being homeless.

104 As counsel submitted on his behalf, the long term protection of the community is best served by supporting the applicant's rehabilitation.

105 Further, as is clear from the findings of Yoorrook Justice Commission, there is a unique disadvantage that Aboriginal persons in contact with the criminal justice system face in terms of housing. To give significant weight to homelessness as a factor would - and it appears does - put Aboriginal people at a disadvantage when applying for bail, and as such, would contribute to the over representation of Aboriginal people in custody.

106 Returning to my comments in Re Terei,[37] I would add to my observations that s 3A should be understood such that an applicant's Aboriginality - and the historical and ongoing discriminatory factors that have resulted in Aboriginal people being overrepresented in the remand population - must inform the bail exercise where homelessness is relied on as a factor going towards establishing unacceptable risk. That is, it may act as the tipping point to satisfying a bail decision maker that the risk is, in fact, acceptable.

107 I am satisfied that access to the services I have listed provide a wide range of culturally safe, wraparound support relevant to the applicant's circumstances. They include alcohol and other drug counselling, case management, medical care, social and emotional wellbeing program, and referrals to housing providers. In addition, the CISP report identifies a plan for the applicant's immediate accommodation if he is released from bail.

108 As I have said, the applicant is an individual whose offending has occurred in his early twenties, and is connected to his drug use and homelessness. He is not yet entrenched in a cycle of criminal activity and utter hopelessness. It is clearly in the community's interest to provide the applicant a genuine opportunity on bail to address the matters which have led to his offending, which includes providing, to the greatest extent possible, access to services to support him. This in turn will provide him with the necessary protective factors to assist him in returning to a life which is free of criminal activity. I consider this is the preferred way in which to keep the community safe and adheres to the guiding principles set out in s 1B of the Act.

109 As is true of almost every grant of bail, there will remain a degree of risk. Nevertheless, given the powerful factors I have referred to, I consider the risk is an acceptable one. For these reasons, I conclude that bail ought be granted on appropriate conditions.

110 Before setting out those conditions, I note that the applicant made a general submission regarding compliance with s 3A(5) of the Act_,_ which provides that:

(5) If a bail decision maker refuses bail to an Aboriginal person, the bail decision maker must -

(a) identify the matters the bail decision maker had regard to in taking into account the issues set out in subsection (1); and

(b) either -

(i) state those matters orally when refusing bail and ensure that an audio visual recording, or an audio recording, is made of that statement; or

(ii) record those matters in writing in a form that the bail decision maker considers appropriate.

111 The section speaks for itself and imposes an obligation on a decision maker who refuses bail to an Aboriginal person to identify - either orally or in writing - the matters in s 3A(1) to which they have had regard. Having said that, I am acutely aware of the onerous workload on magistrates and the limited resources available to them, compared particularly to this Court. As such, the identification of matters pursuant to s 3A(5) need only be brief and, as the Act stipulates, not necessarily in writing.

112 In conclusion, the applicant is granted bail on the following conditions:

(a) He attend the Bendigo Magistrates' Court on 15 October 2025 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody;

(b) He reside as directed by the CISP;

(c) If or when he secures accommodation on either a temporary or long-term basis, he is to advise the informant of his address, and of any change to that address within 24 hours of the change;

(d) He not attend or be within the Kyabram City Centre within the boundaries of McCormick Road, McEwen Road, Fenaughty Street and Kyabram's eastern trainline for the duration of the bail period. For the avoidance of doubt, he may attend Kyabram train station;

(e) He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Bendigo, or his or her nominee, between the hours of 9am and 6pm;

(f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;

(g) He provide a sample of his breath for testing if required to do so by any member of Victoria Police;

(h) He comply with all lawful directions of any officer of CISP and attend all appointments as directed by CISP;

(i) He not contact, directly or indirectly, the co-accused, for the duration of the bail period;

(j) He not contact, directly or indirectly, any witness for the prosecution, except the informant;

(k) He not leave the State of Victoria;

(l) He not attend any points of international departure; and

(m) He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 17 October 2025, and any further dates this Court appoints during the course of this order.

[6] See: Re Terei [2024] VSC 294; Re Thorpe [2024] VSC 414; Re McLaughlin [2024] VSC 706; Re RK [2024] VSC 792; Re Males [2024] VSC 802; Re TQ [2025] VSC 82.

[7] [2024] VSC 294, [57].

[9] HA (a pseudonym) v The Queen [2021] VSCA 64, [62]-[64] (Maxwell P and Kaye JA).

[13] Victoria, Parliamentary Debates, Legislative Council, 15 August 2024, 2851-2852 (Jaclyn Symes).

[14] Re Terei [2024] VSC 294, [57] and [61]; Re Thorpe [2024] VSC 414, [51]; Re TQ [2025] VSC 82, [81].

[15] Re Thorpe [2024] VSC 414, [52].

[17] Australian Institute of Health and Welfare, Health of people experiencing homelessness (online, 13 February 2025) (citations omitted).

[18] Bugmy Bar Book Committee, 'Homelessness' in Bugmy Bar Book (online, January 2020), [9].

[19] Australian Bureau of Statistics Aboriginal and Torres Strait Islander peoples experiencing homelessness (online, 27 June 2023). Although the ABS cautions that because Aboriginal and Torres Strait Islander Australians are undercounted in the census, this data will also be an underestimation.

[20] Yoorrook Justice Commission, Yoorrook for Transformation - Third Interim Report: Vol 4 (1 July 2025), 317.

[25] See: Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948), Art 25.1; International Covenant on Economic, Social and Cultural Rights; GA Res 2200A (XXI) (16 December 1966), Art 11.1.

[26] [2021] VSC 769.

[28] Affidavit in support of an application for bail affirmed by solicitor Kathleen Lawn on 25 August 2025 KVL-7.

[29] Third affidavit in support of an application for bail affirmed by solicitor Kathleen Lawn on 3 September 2025 KVL-10, 34 days of separation comprised of period 4/7/25 to 7/7/25 and 21/7/25 to 6/8/25 in 'Sandy Creek CSS' and 20/8/25 to 1/9/25 'Forbes Mgmt'.

[30] Re Terei [2024] VSC 294, [60].

[31] [2024] VSC 706, [47].

[32] Yoorrook Justice Commission, Yoorrook for Justice (4 September 2023), 360.

[33] Supplementary affidavit in response to an application for bail sworn by solicitor Jack Sheedy on 4 September 2025 JS-3.

[34] [2021] VSCA 64 (Maxwell P and Kaye JA).

[35] Ibid [62]-[64]. While these principles were discussed in the context of a child, I note that they have been applied in a number of cases involving adult offenders. See for example Re Moody [2023] VSC 662, [24] (Elliott J); Re Visser [2024] VSC 18, [55] (Walker JA); Re Pollard [2023] VSC 106, [53] (Fox J); Re Lawn [2023] VSC 390, [70], [104] (Champion J).

[37] [2024] VSC 294, [57].