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[2023] VSC 137
General information, not legal advice.
Supreme Court of Victoria
2023-03-24
Incerti J
Original judgment source is linked above.
CRIMINAL LAW - Bail application - Applicant charged with aggravated burglary, dangerous driving - Whether exceptional circumstances exist - Whether unacceptable risk - Applicant's disadvantaged and dysfunctional upbringing - Availability of suitable programs while on bail - Delay - Applicant of Aboriginal heritage - Bail granted with conditions - Bail Act 1977 ss 3A, 3AAA, 4A, 4AA, 4E, .
Ms S Mansfield of Law and Advocacy Centre for Women
1 This is an application for bail by Shona Lou Lou Firebrace ('the applicant').
2 The applicant is a 25-year-old Aboriginal woman who seeks bail on the following twelve charges filed by informant Senior Constable Jackson Brice:
(a) Aggravated burglary;
(b) Theft (two charges);
(c) Theft of motor vehicle;
(d) Obtain property by deception (two charges);
(e) Drive in a manner dangerous whilst pursued by police;
(f) Handle stolen goods;
(g) Commit an indictable offence whilst on bail (two charges);
(h) Contravene a conduct condition of bail; and
(i) Reckless conduct endanger serious injury.[1]
3 This matter will be referred to as the 'remand matter'. It is next listed on 4 April 2023 at the Melbourne Magistrates' Court for a plea of guilty.
4 The applicant has been remanded in custody since 22 February 2023 when she was arrested for the remand matter. She applied for bail on 23 February 2023 at the Mildura Magistrates' Court. The application was refused on the basis that the applicant failed to show exceptional circumstances, and there was an unacceptable risk of her committing an offence while on bail, endangering the safety or welfare of any person and failing to surrender into custody.[2] A further application for bail was made on 10 March 2023 at the Mildura Magistrates' Court, which was refused on the same basis.[3]
5 In addition to the remand matter, the applicant is also on bail for eight further matters:
(i) Burglary;
(ii) Trespass; and
(iii) Theft.
(b) Detective Senior Constable Daniel Vakulcyzk
(iv) Obtain financial advantage by deception; and
(v) Handle stolen goods.
(viii) Contravene Community Corrections Order (CCO) arising from failing to attend supervision appointments.
(ix) Handle stolen goods; and
(x) Obtain property by deception (two charges).
(xi) Burglary;
(xii) Theft; and
(xiii) Commit an indictable offence whilst on bail.
(xiv) Possess drug of dependence (two charges); and
(xv) Act in manner prejudicial to good order of a police gaol.
6 These matters will be collectively referred to as the 'bail matters'.
7 The matters of Informants Redmond and Jansz are next listed on 29 March 2023 at the Melbourne Magistrates' Court for contest mention.
8 The balance of the bail matters are next listed on 4 April 2023 at the Melbourne Magistrates' Court for a plea of guilty.
9 On 15 March 2023, an application for bail was filed in this Court in respect of the remand matter. This is the hearing of that application.
10 On 10 June 2021, the applicant went to her associate Caster Majanggon's house in Mildura to collect some of her belongings. Apparently there had been some conflict between the applicant and Mr Majanggon about the items. He lived with two other people, Mr How and Mr Tang. After collecting her belongings, the applicant's group drove away in a Ford Falcon that was at Mr Majanggon's property. She was given the car keys by Mr How, and told Mr Majanggon that she was taking the car as she had paid for it.
11 It appears within the next 24 hours the car went missing.
12 The next day, the applicant returned to Mr Majanggon's house with two men. The applicant and one of the men went to Mr How's bedroom. They knocked on the door and he opened it. The applicant asked where the Ford Falcon was. The applicant and the man she was with then went into Mr How's bedroom. The man retrieved a baseball bat, and stood in the doorway of the bedroom with it, while the applicant took $20 in coins, a small mirror and two mobile devices from the bedroom. They then left with the items.
13 Police attended the scene and the applicant has been linked by forensic analysis to items in Mr How's bedroom. The applicant was arrested on 25 August 2021 but was released without interview.
14 A charge was filed and a warrant to arrest issued on 8 March 2022 in this matter.[4]
15 On 27 July 2021, two women described to be of Aboriginal appearance attended a retirement village in Heidelberg West. One of them asked a 70-year-old resident to use the bathroom. The complainant let her inside. She then stole the complainant's purse containing a small amount of cash and a taxi voucher.
16 It is alleged that two days later the applicant used the voucher to travel from Fitzroy to Corio, claiming to be the complainant. En route, the taxi stopped at a McDonalds in Derrimut. CCTV shows the applicant go inside the restaurant and return to the taxi. At this point, the driver became suspicious and refused to accept the voucher, instead asking to be paid in advance. After being taken by the driver to an ATM, CCTV from the taxi shows the applicant get out without paying.
17 On 18 December 2021, the applicant was arrested and released without interview. She was charged on summons on 10 May 2022.
18 On 13 December 2021, the applicant and another person convinced a resident of an apartment building in Melbourne to let them inside the mail room, falsely claiming that they lived in the building. The resident reluctantly did so. They then stole a parcel containing a pair of leggings valued at $100. The applicant was identified via CCTV footage from the building.
19 The applicant and Frederico Andaloro were both living at the Space Hotel in Melbourne. On 15 January 2022, Mr Andaloro left his wallet in a shared bathroom. As he was leaving the bathroom, he saw the applicant enter, and his wallet was gone when he went to retrieve it shortly afterwards.
20 Later that morning, the applicant was depicted on CCTV making purchases totalling around $160 at 7/11 stores using Mr Andaloro's bank card.
21 On 30 January 2022, the applicant and a co-accused followed a resident into an apartment building in Melbourne. They stole mail and packages, as well as an access fob. The applicant and the co-accused then went up to level 66, and using the stolen fob, opened an apartment.
22 The applicant returned to the ground level via the lift holding the stolen mail, before being stopped by building staff. One staff member took back the stolen mail, but after a struggle, the applicant managed to keep hold of the fob and left.
23 The applicant was identified on 23 April 2022 by both building staff in a photo board.
24 A charge was filed and a warrant issued on 13 September 2022 in this matter.[5]
25 On 14 April 2022, the manager of a building that the applicant had been staying at called police. The applicant had been told to vacate the property, and staff were afraid to tell her to leave.
26 Police attended and found three snap lock bags hidden in her clothing containing what is believed to be drugs. The applicant was charged in the Shea matter.
27 It appears she was also arrested on this day for the outstanding matters of informants Redmond, Sellers and Gsell, and formally charged.
28 According to the Gsell summary, the applicant was bailed by the Melbourne Magistrates' Court to appear on 12 May 2022.
29 On 5 September 2022, the applicant was bailed by the Melbourne Magistrates' Court to appear on 13 September. She then failed to appear on that date.
30 The applicant was arrested in Thornbury on 9 February 2023 and charged with failing to answer bail. Police located the applicant hiding behind a washing machine. In her interview, she provided various reasons for failing to appear, including that she was in Gippsland and that it was her worker's responsibility to inform her of court dates.
31 At the time of her arrest, the applicant had seven outstanding warrants for her arrest in the bail matters.
32 She was bailed in relation to all eight bail matters from the Melbourne Magistrates' Court on 10 February 2023. The Redmond court extract contains the following conditions:
(a) Report to Melbourne West Police Station once a week;
(b) Reside at [redacted];
(c) Notify informant within 24 hours of any proposed change of address;
(d) Not to leave Australia;
(e) Not to leave Victoria;
(f) Not associate with any co-accused;
(g) Comply with CISP; and
(h) Attend scheduled CISP appointment.
33 On 11 February 2023, the applicant entered an unlocked Toyota Echo parked outside a food bank in Thornbury. She stole a handbag containing cash and bank cards. The incident was captured on CCTV.
34 In the early hours of 22 February 2023, the applicant entered an unlocked unit in Mildura. While the complainant slept on the second floor, the applicant stole some car keys, credit cards, a laptop and a pair of black runners from the ground floor. The applicant then stole the complainant's Toyota Yaris parked outside.
35 The applicant made purchases with the complainant's bank card, one of which was in Gol Gol across the NSW border. The applicant is depicted on CCTV footage from two of these locations in the Toyota Yaris and making the purchases.
36 At 2:00pm, police saw the stolen Toyota being driven erratically, swerving around parked cars in a carpark. Upon seeing police, the applicant accelerated quickly, driving over a nature strip and narrowly missing a pedestrian. She then drove on the wrong side of the road. She abandoned the car and jumped over a fence, but was arrested nearby. Stolen items were found on the applicant. The applicant appeared drug affected and was taken to hospital. She was unfit for interview.
37 The applicant was charged and remanded in custody.
38 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').
39 The parties agree that, in order to be granted bail, the applicant needs to satisfy the Court that exceptional circumstances exist that justify the grant of bail. This is on the basis that the applicant is accused of a Schedule 2 offence (namely, aggravated burglary and bail offences in the remand matter) that are alleged to have been committed whilst the applicant was on bail for Schedule 2 offences (namely, commit indictable offence whilst on bail in the Jansz matter and fail to answer bail in the Williams matter, having been bailed on both matters on 10 February 2023).[6] The applicant bears the burden of demonstrating that exceptional circumstances exist.[7] In considering whether exceptional circumstances exist, the Court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[8]
40 If satisfied that exceptional circumstances exist, the Court must then move to consider the unacceptable risk test.[9] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[10] In considering whether a risk is unacceptable, the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[11]
41 The applicant is an Aboriginal person.[12]
42 Under s 3A of the Act, in making a determination in relation to an Aboriginal person, the Court must take into account any issues that arise due to the person's Aboriginality including the person's cultural background, such as their ties to extended family or place, as well as any other relevant cultural issue or obligation.
43 The applicant submits that her status as an Aboriginal woman is relevant to the impact of incarceration upon her, noting that she figures in the statistical over-representation of Aboriginal women incarcerated in Victoria.
44 The applicant is a 25-year-old Koori woman with a Barkindji mother and Yorta Yorta father. She was born in Echuca and raised on the Cummeragunja mission nearby.
45 The applicant's mother drank alcohol during her pregnancy and was aged seventeen when she gave birth to her. The applicant's childhood was marked by alcoholism and serious family violence between her parents. The applicant was relocated to live with an aunt and uncle, however, they also drank heavily and abused her. As a result, Child Protection placed the applicant in out-of-home care.
46 The applicant moved frequently between placements, and experienced one instance of sexual harm. She attended 11 different schools before finally ceasing her education in Year 9.
47 The applicant was in a relationship from age 16 for seven years that was marked by family violence. From this relationship at age 20, she gave birth to her only child. Her son is now four years old and there is Child Protection intervention in place - he resides with paternal family. Prior to her remand, the applicant was having supervised visits three days a week. The applicant is committed to resuming contact with her son on her release from custody.
48 The applicant has been using substances since her teenage years, including methylamphetamine from age 14 and heroin from age 23. The applicant reports a seven-year period of abstinence from drug use, prior to relapsing about two years ago in the context of relationship difficulties.[13] In the months leading up to her remand, the applicant had not used heroin but was using methylamphetamine on a daily basis, along with cannabis each week.
49 In 2022, the applicant started Buvidal injections (pharmacotherapy) through the Victorian Aboriginal Health Service ('VAHS'), which she found effective in reducing her drug use, however, she was unable to continue with this treatment due to a period of homelessness and it is not offered to her in custody due to her limited time on remand so far (ie, less than 6 weeks).
50 The applicant has a criminal history. Selected excerpts include as follows:
(a) The applicant's most recent matter was dealt with on 16 December 2021 at Melbourne Magistrates' Court in relation to ten charges of possess drugs of dependence, commit indictable offence whilst on bail, theft and state false name when requested. The applicant was found guilty without conviction and given a CCO for 12 months. The applicant did not comply with the CCO and this gives rise to the current CCO contravention charge.
(b) In May 2021, the applicant was given an adjourned undertaking without conviction for charges of burglary, shopsteal and fail to answer bail. It is unclear whether the applicant complied as there is no entry on her criminal record to indicate what happened to this undertaking.
(c) In July 2020, the applicant received an adjourned undertaking without conviction for various charges including commit indictable offence whilst on bail.
51 The applicant is contesting the matters of informants Redmond and Jansz.
52 Regarding the Redmond matter, the applicant submits that the alleged offending occurred in the context of her homelessness and having her personal property withheld by a housemate of the complainant. This gives rise to a factual dispute and the issue of intent upon entry is also disputed in relation to the burglary charge.
53 Regarding the Jansz matter, the applicant submits that identity is disputed.
Nature and seriousness of the alleged offending
54 The applicant intends to plead guilty to the matters of Vakulcyzk, Sellers, Gsell, Shea, Williams, Brice and the Corrections Victoria matters. General matters to be put on the plea in mitigation are outlined below.
55 Regarding the Sellers matter, the applicant submits that the clothing item stolen was worth $100 and the charges are not serious examples of burglary or theft. The applicant notes that the offending pre-dates the sentence imposed on 16 December 2021 for which she received a CCO, giving rise to totality principles. The same submissions are made in respect to Vakulcyzk matter, with the value of the lost taxi fare being $66.
56 Regarding the Gsell matter, the applicant notes that she was homeless at the time and the offending involved the purchase of $160 worth of perishables.
57 Regarding the Shea matter, the applicant submits that the amount of drugs found on her were small.
58 Regarding the remand matter of Brice, the applicant submits that the offending occurred in the context of her being in Mildura for 'sorry business' regarding her aunt - the Aboriginal funeral process for deceased members of the community. As a result of her arrest and remand, she was not able to attend her aunt's funeral.
59 Similarly, while it is conceded that the offence of aggravated burglary is inherently serious, the applicant notes that the offending was not committed in company, was not sophisticated and occurred in the context of substance use. The property was double storied and the applicant entered via an unlocked door downstairs - taking only items from the ground floor. Further, the applicant submits that she was not wearing a disguise, was unarmed and did not disturb the occupant upstairs. It is also submitted that the distance travelled in the stolen car, whilst interstate, was small (6 km) and it is not alleged that this was an attempt to flee the jurisdiction.
60 It is conceded that the applicant has prior findings of guilt for committing an indictable offence whilst on bail in July 2020 and December 2021.
61 It is also admitted that at the time of the applicant's arrest on 22 February 2023 she was on eight counts of bail.
62 The applicant has experienced periods of homelessness which is submitted to often coincide with her offending. Significantly, she acquired public housing accommodation in Thornbury in January 2023. The applicant has a DFFH housing worker who is also assisting with her accommodation.[14]
63 The applicant is motivated to have her son reunified to her full time care.
64 The applicant has had a long-standing drug dependency issue. The report of Warren Simmons confirms that at the time of her remand, the applicant would have met the criteria for a Stimulant Use Disorder.[15] If bailed, the applicant would seek to resume her Buvidal injections through the VAHS, which is not presently available to her in custody.[16]
65 This is the applicant's first experience of prison. She initially tried to self-harm upon her remand, leading to her isolation from other prisoners. She reports to CISP that this was a moment of 'stupidity' and denied any suicidal ideation.[17] That being said, the affidavit in support states that she has experienced a decline in her mental health and problems sleeping since being placed in custody.[18] The applicant submits that her youth, Aboriginality and inexperience with custody make her vulnerable.
Availability of treatment or bail support services
66 The applicant was assessed by the CISP Remand Outreach Program ('CROP') at Dame Phyllis Frost Centre on 20 March 2023. The outcome of the assessment is that the applicant is recommended for case management by the Melbourne CISP team.
67 According to the CROP report, the applicant will attend a further assessment in relation to Alcohol and Other Drugs (AOD) with an accredited worker. Following the assessment appropriate treatment will be arranged.
68 The applicant will independently organise pharmacotherapy by attending the Victorian Aboriginal Health Service to see a walk-in pharmacotherapy doctor.
69 The applicant has access to Yarning SafeNStrong for free, confidential, culturally appropriate counselling. This service is available 24 hours a day, 7 days a week.
70 The applicant has agreed to attend a general practitioner for a physical health review. An appointment has been scheduled at the applicant's preferred clinic, the Victorian Aboriginal Health Service, on Friday 28 April 2023 at 2:30pm. This was the first available appointment.
71 Together with her CISP case manager, the applicant will have further discussions about family violence, family supports, parenting programs and cultural supports. The applicant will be assisted to engage with appropriate services as required.
72 The applicant will engage in CISP case management with the Melbourne CISP team. An initial appointment has been scheduled for the applicant to attend in-person on Monday 27 March 2023 at 11:30am at the Melbourne Magistrates' Court CISP office.
73 It is recommended that CISP form part of any bail conditions and that the matter be adjourned to allow time to commence the treatment and support plan.
75 Seven of the applicant's matters (other than the Redmond and Jansz matters) are listed for a plea fixture at the Melbourne Magistrates' Court on 4 April 2023. The applicant submits this was the earliest date available and was obtained after she was refused bail, as the applicant wants to be released as soon as possible in order to contact her son. As a result of this choice, the applicant has closed off the option of having her matters dealt with by the Koori Court. If bailed, the applicant would be able to seek a later date in the Koori Court.
76 It is submitted that the time the applicant has spent in custody would likely exceed any sentence of imprisonment.
77 It is submitted by the applicant that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including:
(a) To reside at [redacted];
(b) To comply with all lawful directions of CISP;
(c) To comply with all lawful directions of the LACW case manager;
(d) A curfew and present at the front door during these hours;
(e) Report to Northcote Police Station;
(f) Not consume any drug of dependence;
(g) Not drive a motor vehicle;
(h) Not contact any witnesses for the prosecution, except the informant;
(i) Not leave Victoria;
(j) Not leave Australia; and
(k) Not enter any points of international departure.[21]
78 The application for bail is opposed on the basis that the applicant has not discharged the burden of satisfying the Court as to the existence of exceptional circumstances that justify the grant of bail. Should the Court find that exceptional circumstances exist, the respondent submits that there is an unacceptable risk of the applicant endangering the safety or welfare of any person, committing an offence while on bail and failing to surrender into custody in accordance with the conditions of bail.
79 In response to the applicant's contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
80 The respondent notes that the applicant was sentenced to a CCO on 16 December 2021 for a period of 12 months with which she did not comply.
81 With respect to the applicant's motivation to comply with conditions of bail in order to reunify with her son, it is noted that the applicant has continued to commit offences in recent times, even though she has had supervised visits with him.
82 On 10 February 2023, the applicant was released on bail with the support of CISP. She failed to attend appointments before support was ceased following her arrest and remand.
83 In response to the submission that the applicant's experience of homelessness has often coincided with her alleged offending, the respondent notes that her current lease was entered into on 23 January 2023, which predates the offending allegedly committed in the remand matter in February 2023.
84 The complainant in the remand matters has been consulted and indicated that, while she does not have any personal concerns for her safety, she is concerned about community safety if the applicant is bailed.
85 The respondent submits that if the Court is satisfied that an exceptional circumstance exists, there remains an unacceptable risk.
86 The respondent submits that bail ought to be refused by the Court for the following reasons:
Endangering the safety or welfare of any person
87 The respondent submits that it is not open for the bail decision-maker to find that the applicant has established exceptional circumstances justifying a grant of bail.
88 The respondent relies on the nature of the allegations in the remand matter, which involves driving a stolen car dangerously in a public area, while affected by drugs and only holding a learner's permit.
89 The respondent submits that the applicant, if granted bail, would be an unacceptable risk of:
(a) Endangering the safety or welfare of any person pursuant to s 4E(1)(a)(i);
(i) The applicant has driven a stolen vehicle while on her learner's permit at a dangerous speed, narrowly missing members of the public;
(ii) At the time of driving the stolen vehicle the applicant was affected by illicit drugs where she required medical attention; and
(iii) The applicant has a history of driving on her learner's permit unaccompanied.
(b) Commit an offence while on bail pursuant to s 4E(1)(a)(ii);
(i) The applicant was on eight counts of bail at the time of the alleged offending
(ii) The applicant committed an offence only one day after being granted bail by the Melbourne Magistrates' Court on 10 February 2023; and
(iii) The applicant has failed to comply with the CISP condition of the bail by failing to attend her CISP initial appointment on two occasions.
(c) Failing to surrender into custody in accordance with the conditions of bail pursuant to s 4E(1)(a)(iv).
(i) The applicant has previously been charged three times with fail to answer bail.
90 The respondent notes that some of the applicant's offending in the remand matter was committed the day after being granted bail on 10 February 2023. The applicant was also required to engage with CISP on this grant of bail, which she did not do.
91 The respondent submits that the applicant's history of drug use increases the risk that she will re-offend.
92 The respondent submits that the applicant was assessed as a high risk of further offending in the CCO assessment.
Failing to surrender into custody in accordance with the conditions of bail
93 The respondent notes that the applicant has previously been charged with fail to answer bail, including most recently on 9 February 2023 in the Williams matter.
94 The respondent submits that the applicant has failed to comply with the conditions of bail on multiple occasions. The applicant also left the state of Victoria without the Court's consent.
95 The respondent relies on the fact that the applicant was on eight counts of bail at the time of the arrest and failed to comply with the conditions of bail. The applicant failed to comply with CISP and attend the initial CISP appointment.
96 The respondent submits that at the time of the offending and arrest the applicant was substance affected and required medical assistance.
The nature and seriousness of the alleged offending
97 The respondent submits that the applicant's offending is serious and has recently escalated. The respondent submits that the applicant's offending in relation to the charge of aggravated burglary was brazen in nature. The applicant entered the victim's residence via an unlocked door at approximately 4:30am while the victim was asleep. The applicant left the address, stealing the victim's vehicle, the victim's phone case containing her credit cards and a Dynabook laptop. The respondent submits that this offending could only have had a significant impact on the victim who was entitled to feel safe in her own home.
98 The respondent further submits that the applicant's offending was aggravated by the fact that at the time of driving the stolen vehicle, the applicant was under the influence of drugs and only held a learner's permit. The applicant drove in a dangerous manner, placing herself and members of the public at risk. The respondent submits that the applicant narrowly missed a pedestrian and that this did not deter the applicant and that she continued to drive in a dangerous manner, on the wrong side of the road, at speed as she attempted to evade police.
99 The respondent resists the submissions made on behalf of the applicant that her offending occurred during a period of homelessness. The respondent submits that the applicant obtained long-term public housing on or around 20 January 2023. The respondent submits that the applicant's most serious offending occurred on 22 February 2023 and that her offending escalated despite having secured permanent housing.
100 The respondent submits that the value of the stolen goods is not insignificant and amounted to more than $22,000 from the victim.
101 The respondent submits that in all of the circumstances, the applicant has failed to discharge the onus of exceptional circumstances.
102 In my view, the applicant has demonstrated exceptional circumstances. The test for exceptional circumstances is stringent. However, the combination of the applicant's age, Aboriginality, her high-motivation to address her substance abuse and her motivation to engage with various services leads me to conclude that exceptional circumstances have been demonstrated.
103 The applicant is 25 years old. She has had a particularly unfortunate, disadvantaged and traumatic upbringing. Her previous court appearances must necessarily be viewed in the context of the difficult circumstances which marked her formative years, none of which were of her own making.
104 I have taken into account the applicant's criminal history and the serious difficulties she has had complying with Court orders, and in particular bail conditions. The evidence demonstrates that the applicant has high motivation to address her numerous difficulties including her substance abuse. The evidence demonstrates her engagement with Victorian Aboriginal Child Care Agency (VACCA), VAHS and LACW. The applicant has a Department of Fairness, Families and Housing (DFFH) worker who is assisting her with accommodation. While in custody, the applicant has engaged with the Australian Community Support Organisation in the Restart Program. The applicant's motivation and willingness to engage with the range of services identified, is to have her four year old son reunified to her and to have fulltime care of him. I have had regard to the suitability of the programs and support available to the applicant which are designed help her comply with the terms of any bail on which she is released and also to commence her rehabilitation.
105 The CISP remand outreach program has assessed the applicant as suitable for community referral in its report dated 21 March 2023.
106 The respondent has pointed out that the applicant had previously had available to her the CISP program which was a condition of the bail on which she was released on 10 February 2023 and which she failed to comply with. The applicant failed twice to attend her CISP appointments.
107 There is some force in that point, particularly as the applicant committed further offences after her release on bail on 10 February 2023.
108 Since the applicant's arrest, she has now spent 29 days in prison, which will have had a salutary effect and focused the applicant's attention on the consequences of further failures to comply with bail conditions. This is the applicant's first experience of prison.
109 It seems to me that since the applicant's arrest on 22 February 2023, she has now come to the realisation that she does need the assistance and supervision of CISP, to enable her to successfully comply with the conditions of bail. CISP's involvement would, in my view, be critical to the applicant's ability to comply appropriately to the terms of any order by which she would be released on bail.
110 In addition, if the applicant is granted bail, she would also be required to attend and participate in programs conducted by VACCA and VAHS.
111 As Kaye JA said in Re Smith-Goode:[22]
Since the landmark report of the Royal Commission into Aboriginal deaths in custody in 1991, the courts have gained an understanding that programs, such as those conducted by [the Victorian Aboriginal Child Care Agency], which involve the reconnection of an Indigenous person with his or her culture, and which are conducted in an appropriately culturally sensitive manner, are of significant importance in addressing the underlying issues that often drive offending by people in the position of the applicant.[23]
112 The applicant has secured accommodation and, as I noted, has a DFFH housing worker who is assisting her with that accommodation.
113 I accept that the applicant agreed to a plea fixture at the Melbourne Magistrates' Court on 4 April 2023, having been refused bail, to secure the earliest date and to be released as soon as possible to be in contact with her son. In doing so, the applicant closed off the option of having her matters dealt with by the Koori Court. The applicant has indicated that if bailed she would seek a later date for the plea hearing in the Koori Court.
114 Bail is a significant matter for Aboriginal and Torres Strait Islander accused, both because of their overrepresentation in the criminal justice system and for cultural reasons.[24] Koori people are over-represented within the criminal justice system, more so than any other cultural group.[25] Numerous reports, such as the Royal Commission into Aboriginal Deaths in Custody and the Bringing Them Home Report, have recommended that the legal system be modified to make it less culturally alienating and more tailored to the needs of Aboriginal accused and their community.[26]
115 The Koori Court was established as a response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.[27] An evaluation of the Koori Court operating in the County Court suggests that the experience of Koori accused in the justice system is vastly improved by the availability of the Koori Court.[28]
116 Through the participation of Aboriginal Elders, Respected Persons and other members of the Indigenous community in the hearing process, the Koori Court aims to provide a more culturally relevant and inclusive sentencing process for Indigenous people charged with offences.[29]
117 The primary goal of the Koori Court is to create sentencing orders that are more culturally appropriate to Aboriginal accused, thereby reducing the rate of re-offending.[30]
120 Any opportunity to have the applicant's plea hearing in the Koori Court is a very significant matter.
121 The parties accept either that the time the applicant has spent in custody will exceed any sentence of imprisonment or would be within the range the applicant will have spent in custody.
122 The applicant concedes that the offence of aggravated burglary is inherently serious. Notwithstanding the serious nature of the offence and the other offences, some of which she will plead to, there is no evidence of violence towards any person. I have taken into account the potential danger the applicant created by her conduct on 23 February 2023, including driving erratically, swerving around cars in a carpark, driving on the nature strip and narrowly missing a pedestrian.
Finally, and importantly, the applicant is of Aboriginal heritage. As the Court of Appeal noted in HA, s 3A and s 3AAA(1)(h) of the Bail Act are a significant legislative recognition of the constructive role that cultural connection can play in rehabilitating offenders who are of Aboriginal heritage. In addition, it is important to be conscious of the need to avoid exacerbating the excessive and disproportionate incarceration rates of our Aboriginal and Torres Strait Island peoples, unless there is appropriate cause or necessity to do so. The applicant's Aboriginal heritage is of particular relevance in this case, because, through appropriate programs conducted by organisations such as VACCA, it can be used as a basis to reconnect the applicant with his culture, and to enable the applicant to understand and address the fundamental issues which have played a significant part in his offending.[36]
124 It is well understood that exceptional circumstances can be established through a combination of circumstances. In all the circumstances, I am prepared to accept that the applicant has demonstrated exceptional circumstances for the reasons discussed immediately above. In my opinion, a combination of these factors is sufficient to satisfy the test. In coming to this conclusion, I have taken into account, as required, the surrounding circumstances.
125 Having found that the applicant has satisfied the Court that exceptional circumstances exist that justify a grant of bail, the Court is required to consider whether the respondent has established that an unacceptable risk exists resulting in bail being refused. Further, the Court is mandated to consider the surrounding circumstances in considering this issue.
126 In all the circumstances, the respondent has not satisfied me that the applicant represents an unacceptable risk on the bases set out in the Act. The facts and circumstances that I have taken into account in the assessment of the exceptional circumstances test are, in the most part, applicable to an assessment of unacceptable risk in this case. In the circumstances, I am of the opinion that the imposition of strong conditions on a grant of bail to the applicant can ameliorate the risk to an acceptable level, justifying a grant of bail in this case.
127 The strong conditions I propose will be partly directed towards the applicant complying with the CISP recommendations, as set out in the report dated 21 March 2023.
128 It is a matter of concern that after the applicant was released on bail on 10 March 2023, she almost immediately committed further offences, including: aggravated burglary; theft of motor vehicle; drive in manner dangerous whilst pursued by police; reckless conduct endanger serious injury and commit and indictable offence whilst on bail (two charges).
129 Each of these considerations are of some moment in determining whether, if the applicant were released on bail, there would be an unacceptable risk that she would offend, and particularly engage in conduct that would endanger community safety.
130 It must be acknowledged that the offences that the applicant committed while on bail after she was released on 10 February 2023, did not of themselves involve violence or aggression directed to a person. I agree with the applicant's solicitor's submission that in relation to the aggravated burglary, her conduct was far from sophisticated and occurred in the context of substance abuse. The applicant was not armed and did not disturb the occupant upstairs.
131 I note that the victim in the remand matters expresses the view that she is opposed to the applicant being granted bail on the basis that the applicant poses a risk to the community.
132 Some of the conduct that is alleged against the applicant, and which is the subject of the other charges, does give rise to some concern. It is that kind of conduct which, however, would be the subject of the interventions which would be provided by both CISP and by the programs conducted through VACCA and VAHS.
133 If the applicant is released on bail, she would, almost immediately, be supervised by the Melbourne CISP team, and she would be required to attend specific programs which would address the underlying issues which have been productive of the conduct by the applicant which is the subject of the charges against her. The applicant's CISP case manager will be aware that if the applicant fails to attend programs to which she is directed, or fails to properly engage with them, they are required to advise the informant and the Court. In that way, a condition of bail, requiring the applicant to attend at CISP and to participate in the VACCA programs as directed, would, to a material degree, address the particular risk which is central to the concerns of the respondent. It must be acknowledged that such a condition could not, of itself, entirely negate that risk.
134 However, in my view, it would be sufficient to reduce the risk to a level to which it would be acceptable.
135 As I have noted, in determining whether the risk of the applicant reoffending or the risk of endangering the safety or wellbeing of other persons is unacceptable, it is necessary to take into account the surrounding circumstances which are prescribed by s 3AAA of the Act. In particular, the applicant's personal circumstances, her background, her identity as an Aboriginal person, and the fact that, if bail were refused, she will spend a period in custody on remand that will most likely be longer than the sentence imposed on her, are all relevant circumstances in assessing whether the risk of the applicant reoffending is unacceptable.
136 Taking those matters into account, and in particular taking into account the availability to the applicant of the CISP program and the VACCA programs, I have concluded that the respondent has not established that, if the applicant were released on bail subject to appropriate conditions, the risk of the applicant reoffending in that way would be unacceptable.
137 Accordingly, I have concluded that the applicant should be granted bail, on appropriate conditions, which will include the following:
1. The applicant attend the Melbourne Magistrates' Court on 29 March 2023 and then surrender herself, 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 herself into custody.
2. The applicant reside at [redacted], and not change that address without the leave of the Court.
3. The applicant remain at those premises between the hours of 10:00pm until 5:00am each day ('the curfew hours') for the duration of bail.
4. The applicant present herself at the front door of the premises during the curfew hours if and when called upon by a member of Victoria Police to do so. The applicant is to provide a sample of her breath or saliva for testing if required to do so by any member of police.
5. The applicant abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
6. The applicant refrain from driving a motor vehicle unless appropriately supervised. If the applicant obtains a full licence she is permitted to drive a vehicle.
7. The applicant attend an appointment with a general practitioner at the Victorian Aboriginal Health Service (VAHS) for a physical health review on 28 April 2023 at 2:30 pm.
8. The applicant engage in CISP case management with the Melbourne CISP team, with an initial appointment on 27 March 2023 at 11:30am at the Melbourne Magistrates' Court CISP office.
9. The applicant attend a further assessment in relation to Alcohol and Other drugs (AOD) with an accredited worker, to be arranged by her case manager.
10. The applicant independently organise pharmacotherapy by attending the VAHS to see a walk-in pharmacotherapy doctor.
11. The applicant comply with all lawful directions of CISP and attend all appointments as directed by her case manager.
12. The applicant comply with all lawful directions of the Law and Advocacy for Women case manager.
13. The applicant not contact any witnesses for the Prosecution, except for the Informant.
14. The applicant not leave the State of Victoria.
[1] Affidavit in Response to Application for Bail filed 21 March 2023, Exhibit 'NW-1'.
[2] Affidavit in Support of an Application for Bail filed 15 March 2023, Exhibit 'SM-2'.
[3] Affidavit in Support of an Application for Bail filed 15 March 2023, Exhibit 'SM-3'.
[4] Affidavit in Response to Application for Bail filed 21 March 2023, Exhibit 'NW-4'.
[6] Bail Act 1977 (Vic) Sch 2, items 22(b) and 30; ss 4AA(2)(c)(i) and 4A(1)-(1A).
[12] Affidavit in Support of an Application for Bail filed 15 March 2023, [8].
[21] Affidavit in Support of an Application for Bail filed 15 March 2023, [56].
[24] Judicial College of Victoria, First Nations Resources.
[25] Magistrates Court of Victoria, 'Koori Court - Information for Legal Representatives', The Koori community and Department of Justice and Regulation working together: an initiative of the Victorian Aboriginal Justice Agreement (June 2017).
[27] Sentencing Advisory Council Victoria, 'Sentencing in the Koori Court Division of the Magistrates Court', Sentencing Advisory Council Victoria (October 2010).
[28] Zoe Dawkins, Martyn Brookes, Katrine Middlin and Paul Crossley, 'County Koori Court', Final Evaluation Report, County Court of Victoria and the Department of Justice (27 September 2011).
[29] Sentencing Advisory Council Victoria, 'Sentencing in the Koori Court Division of the Magistrates Court', Sentencing Advisory Council Victoria (October 2010).
[30] Magistrates Court of Victoria, 'Koori Court - Information for Legal Representatives', The Koori community and Department of Justice and Regulation working together: an initiative of the Victorian Aboriginal Justice Agreement (June 2017).
[33] Zoe Dawkins, Martyn Brookes, Katrine Middlin and Paul Crossley, 'County Koori Court', Final Evaluation Report, County Court of Victoria and the Department of Justice (27 September 2011).
34 Sentencing Advisory Council Victoria, 'Sentencing in the Koori Court Division of the Magistrates Court', Sentencing Advisory Council Victoria (October 2010).