Re Fellows (Bail Application) [2025] VSC 796 (24 November 2025)

1. Under the Bail Act 1977 (Vic) ('the Act'), the applicant needed to establish exceptional circumstances justifying a grant of bail because he is charged with attempted armed robbery.[4] If he discharged that burden, he was entitled to bail unless the respondent established that he is an unacceptable risk.[5]
2. With regards to the applicant's aboriginality, ss 3A and 3AAA of the Act state, relevantly:

3A Determination in relation to an Aboriginal person

(1) In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person's Aboriginality, including the following -

(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;

(e) any other relevant cultural issue or obligation.

...

(2) The bail decision maker is to take account of an issue set out in subsection (1) by reference to the evidence and information that is reasonably available to the bail decision maker at the time, including information provided by -

(a) the Aboriginal person's family and community; and

(b) providers of Aboriginal bail support services.

3AAA Surrounding circumstances

(1) If this Act provides, in relation to a matter, that a bail decision maker must take into account the surrounding circumstances, the bail decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following -

...

(h) any special vulnerability of the accused, including -

(i) being an Aboriginal person;

...

1. The applicant relied on a combination of factors to establish exceptional circumstances.[6]
2. Having regard to s 3A of the Act, the applicant submitted that refusing him bail would unnecessarily contribute to the overrepresentation of aboriginal persons in custody.
3. The applicant relied on the psychological report of Austin Campell dated 17 September 2025 which details the applicant's adverse childhood involving intergenerational trauma, early exposure to alcohol and other drugs, poor parental mental health, family violence, sexual abuse, unstable housing, disengagement from education and placement in out-of-home care.[7] At the time of the offending, the applicant was homeless, unemployed and addicted to illicit substances.[8]
4. The bail proposal put forth by the applicant included casual employment from Mr Kyle Gyoles at KRG Concreting 20-30 hours per week. Mr Gyoles gave evidence that he had never met the applicant but had been approached by the applicant's sister. He stated he had previously provided the same opportunity to four or five other incarcerated men, to help them commence a better path through gainful employment. He had done so in memory of his mother, who had instilled in him the value of helping others. He gave evidence that he would not tolerate drug use on site and would attend the police station if the applicant engaged in drug use.
5. The applicant proposed that he reside with his birth mother and father, who are also aboriginal. The applicant's mother, Ms Higgins, gave evidence that she wished the applicant to reside with her, and would assist him to engage in relevant referrals and employment. She stated she would call the police should the applicant engage in drug use, commit further offending or breach any conditions. She said she had been in regular contact with the applicant since his incarceration, and that he was now calm and clear and looking forward to a better future.
6. This proposed bail address was deemed unsuitable by the respondent. The informant gave evidence that there have been two callouts to the address on 25 October 2024 and 22 July 2022 in response to verbal conflict between the applicant and his mother. However, there is no family violence intervention order excluding the applicant from the address, and Ms Higgins gave evidence that she does not hold concerns the applicant will commit family violence against her.
7. The applicant's counsel submitted, wrongly in my view, that the present period of remand in custody is 'the first significant period of incarceration within a prison': the applicant was remanded in custody in New South Wales for just over two months between 22 May 2024 to 29 July 2024. Regardless, the applicant submitted that the current period in remand had been a 'circuit breaker' for him and that, during this time he had positively engaged in cultural programs including The Torch program and had completed his first full aboriginal artwork.
8. The applicant also relied upon the Koori Pathways Plan dated 20 November 2025. The author, Ms Kinniburgh, gave evidence regarding a number of referrals that had been made on behalf of the applicant. These included a drug relapse prevention program and a yarning circle through the Mungabareena Aboriginal Corporation, as well as a referral to Gateway Health for the applicant to receive treatment and medication for his ADHD from an Aboriginal health practitioner. In her report Ms Kinniburgh also noted that the applicant was forthcoming, engaging, and presented as someone who was highly motivated to turn his life around. It was submitted by the applicant's counsel that these targeted and culturally appropriate supports and treatment were a protective factor, and not previously available to the applicant through previous court and bail orders.
9. The applicant's counsel further submitted that the offending was a low-level example of the offence of attempted armed robbery. She submitted that a combination sentence where the period of imprisonment did not exceed time already served on remand was open to the sentencing judge on a plea of guilty.
10. The respondent agreed in oral submissions that the offending was a low-level example of the offence of attempted armed robbery. However, the respondent submitted that attempted armed robbery is an inherently serious offence, and that a longer term of imprisonment would be open to the sentencing judge.
11. It was acknowledged by the applicant's counsel that the grant of bail in the present case carried some risk, as does any grant of bail.[9] However, it was submitted that the Court could not be satisfied that the alleged risks were unacceptable risks having regard to the surrounding circumstances, the stability and deterrent impact of the period spent in custody, the importance of the matters arising under s 3A of the Act and the availability of bail conditions to ameliorate risk.
12. The respondent submitted that exceptional circumstances had not been established. Alternatively, the respondent alleged that there is an unacceptable risk that, if the applicant were granted bail, he would endanger the safety and welfare of another person and fail to appear.[10]
13. The respondent noted that previous therapeutic opportunities on bail and CCOs had been afforded to the applicant, and that he had failed to take those opportunities. Further, the applicant had previously failed to attend court and had previously breached conditions of bail.
14. The respondent conceded that there were further support services available to the applicant than at the time of the offending but expressed grave concern that he would not engage in those referrals given the applicant's history of failing to comply with court orders.

1. In HA (a pseudonym) v The Queen,[11] the Court of Appeal stated:

[58] ...Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person's Aboriginality, including the person's cultural background, and the person's ties to extended family or place. 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.

[59] 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.

1. Incerti J in Re Terei[12] said this of s 3A of the Act with reference to the 2024 reforms:

[55] ... A large part of these reforms was a focus on the Aboriginality of the applicant, requiring the Court to pay particular attention to this aspect of an applicant's cultural identity in an attempt to make the bail system, in the word of the Attorney-General, 'safer, fairer and more balanced'.

1. Incerti J also stated regarding the application of s 3A:

[57] ... It cannot simply become a box ticking exercise.. it must inform every consideration and the perception of every aspect of the applicant's application and encourage us to not contribute to the incarceration levels unless the is good reason to do so. It requires the 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 is part.'

...

[61] This is by no means to suggest that the bail of an Aboriginal person becomes a foregone conclusion and usurps the discretion of the decision maker. It is not a more lenient test and the paramount consideration remains the safety of the community and the applicant from risk which is an unacceptable risk. However, the applicant's Aboriginality is a weighty factor in bail applications.

1. It was not challenged, and I accepted the evidence contained in the psychological report and affidavit in support, that the applicant had a significantly adverse childhood involving intergenerational trauma, early exposure to alcohol and other drugs, poor parental mental health, family violence, unstable housing, disengagement from education and placement in out-of-home care.[13]
2. Prior to his remand and at the time of the offending, the applicant was homeless, unemployed and addicted to illicit substances. The applicant's decision to utilise his time in custody to reconnect with his culture and engage in programs such as The Torch is a positive indicator of his motivation to turn his life around. In his interview with Ms Kinniburgh, the applicant also expressed motivation to engage in the referrals and employment that have been organised upon his release. The applicant's reconnection with culture and Country may constitute a pivotal factor in diverting him from his offending behaviour, and in my view, it is in the interests of the community that he be provided that opportunity.
3. I take into account the information provided by Ms Higgins, the applicant's mother. Ms Higgins gave evidence that she despised the impact of drugs on the community. She said she would call the police should the applicant engage in any further drug use, not abide by a curfew or engage in further offending. I accept she will do that.
4. Mr Gyoles was also an impressive witness, and in my view a bail regime where the applicant is working for 20 to 30 hours a week with Mr Gyoles would be a protective factor not only for the applicant, but also, in the long term, for the community.
5. For good reason, it was not submitted that it was a weak prosecution case. However, it was conceded by the respondent, and I agree, that this is a relatively low-level example of the offence of attempted armed robbery. It is conceivable that, on a plea, a sentencing judge may fashion a sentence that does not involve a further period of incarceration, which is an important consideration in this matter when taking into account the overrepresentation of Aboriginal and Torres Strait Islander persons in custody.
6. The applicant's bail and criminal history does provide some concern that, should he relapse into illicit substance use, he will be a risk of further offending and failing to appear. However, having regard to his engagement with aboriginal programs in custody, the availability of culturally targeted support programs upon his release, in combination with regular employment and the support the applicant will enjoy from his parents, the length of time spent on remand for the current matter and the prospect that, on a plea, he may not be required to spend more time in custody, I was satisfied that the applicant had established exceptional circumstances justifying a grant of bail.
7. In my view, these factors in combination with appropriately stringent bail conditions reduced the risks associated with a grant of bail to an acceptable level.
8. Accordingly, I granted bail.

[1] On 24 July 2025 and 3 October 2025 at Wodonga Magistrates' Court.

[2] See Affidavit in Support, Exhibit BK-03.

[3] Affidavit in Response, Exhibit MK-2 at [41].

[4] The Act, ss 4A, 4AA(1) (the applicant having been charged with a Schedule 1 offence (pursuant to Schedule 1 (3, 12)).

[6] Applicant's Written Submissions dated 21 November 2025.

[7] See Psychological Report of Austin Campbell dated 17 September 2025. Support for this was also contained in the evidence of the applicant's mother Ms Higgins who admitted her own issues with alcohol use until entering rehabilitation in 1999.

[8] See Affidavit in Response, Exhibit MK-2 at [2].

[9] Re Martyn Moore [2019] VSC 344, [22] (Priest JA).

[11] [2021] VSCA 64 ('HA').

[12] [2024] VSC 294.

[13] This was also supported by the evidence of Ms Higgins, who was candid regarding her previous addiction to alcohol before entering rehab in 1999.