Re McLaughlin [2024] VSC 706 (14 November 2024)

2 The applicant is charged with a number of offences which are alleged to have occurred on 11 October 2024:

(a) Recklessly cause injury;

(b) Contravene Interim Personal Safety Intervention Order ('PSIO');

(c) Discharge missile to cause injury or danger;

(d) Unlawful assault; and

(e) Assault Police Officer.

3 The applicant is further charged with a number of offences alleged to have occurred on 17 October 2024:

(a) Attempted armed robbery;

(b) Recklessly cause injury; and

(c) Assault with weapon.

4 At the time of the application for bail, the applicant was on bail for two charges of theft and one charge for failing to state name and address. She was further summonsed on a series of outstanding charges, including: 10 charges for theft, four charges for unlawful assault, seven charges for failing to answer bail, five charges for committing an indictable offence while on bail, three charges for possessing drugs and single charges of robbery, assaulting an emergency worker on duty, recklessly causing injury, beating an animal, recklessly causing injury, possessing a controlled weapon, resisting police and failing to comply with the conditions of a community correction order ('CCO').

5 The applicant was arrested on the evening of 17 October 2024 and was charged and remanded in custody in relation to the present matters on 18 October 2024.

6 On 18 October 2024, the applicant was refused bail in the Melbourne Magistrates' Court on the basis that, although she had shown compelling reasons for the grant of bail, she posed an unacceptable risk of endangering the safety or welfare of any person.

7 A further application was made for bail on 25 October 2024. The learned magistrate once again held that the applicant had demonstrated compelling reasons for the grant of bail, but that she continued to pose an unacceptable risk of endangering the safety or welfare of any person.

8 The applicant's matter is next listed for a Committal Case Conference on 10 January 2025.

9 At approximately 11:15pm on 11 October 2024, Ms Nerisa Rutterford was returning home with her son when the applicant began verbally abusing her from her balcony. Ms Rutterford is a neighbour of the applicant and is the protected person in an interim PSIO against the applicant.

10 The applicant is alleged to have thrown a glass bottle at Ms Rutterford, which struck her on the upper body, followed by a brick which narrowly missed her. The applicant then fetched a metal pole and rushed at Ms Rutterford with the pole and another brick. This conduct is captured on a phone recording made by Ms Rutterford.

11 Police arrived shortly afterwards. When notified that she was under arrest, the applicant is alleged to have removed her pants and used the garment to strike the officer to the side of his neck, providing the basis for the assault police charge. The applicant was arrested and was transported to St Vincent's Hospital for assessment.

12 On the evening of 17 October 2024, Ms Nekteria Cameron-Smith was walking along a street in Collingwood, when she was accosted by the applicant who shouted 'what's in the bag, do you have money, give me money'. The applicant then struck Ms Cameron-Smith multiple times to the shoulder with a metal pole before Ms Cameron-Smith was able to escape. This altercation was captured on CCTV.

13 Later that evening, police received reports of a woman acting erratically on the same street. A passerby identified this individual as the applicant and police located her at her address. She was arrested at this time.

14 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').

15 A person who is accused of an offence and is being held in custody for that offence is entitled to be granted bail unless the Act requires refusal.[1]

16 Section 4AAA of the Act outlines circumstances in which bail must not be refused.

17 Section 4AA of the Act outlines the circumstances in which a two-step test applies to the determination of whether to grant bail. In this case, the applicant is charged with attempting to commit an offence listed in Schedule 2 of the Act (armed robbery, which is item 22(a)) and is therefore subject to the Step 1 - show compelling reason test pursuant to s 4AA(3).[2]

18 Bail must be refused if the applicant is unable to satisfy the Court that there is a compelling reason for the grant of bail.

19 A compelling reason is a 'forceful, and therefore convincing reason' and 'difficult to resist' when considering all of the circumstances of the matter.[3] The circumstances include, but are not limited to, the relevant surrounding circumstances as set out in s 3AAA(1) of the Act.

20 Even if the applicant demonstrates a compelling reason justifying the grant of bail, the Court must still refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1) of the Act, and that the risk is unacceptable.[4] This once again requires consideration of the surrounding circumstances as set out in s 3AAA(1) of the Act, along with consideration of whether the imposition of any bail conditions would mitigate the risk to an acceptable level.

Determination in relation to an Aboriginal person

21 Further, in making a determination in relation to an Aboriginal person, the Court is required to take into account any issues that arise due to that person's Aboriginality, including -

(a) 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.

22 Ms McLaughlin is a 35 year old Aboriginal woman. Her people are Yorta Yorta on her mother's side and Yolgnu on her father's side.

23 She, along with her three siblings, was initially raised by her mother and her mother's de facto partner. However, in 1992, the children were removed from their mother's care by the Department of Health and Human Services due to concerns about her ability to protect the children amidst excessive alcohol consumption. The children were ultimately separated as there was a significant age-gap and differing needs.

24 Ms McLaughlin reported physical abuse by her foster parents from the age of five and made a formal statement to police at the age of eight. She later reported being the victim of sexual abuse by her mother's de facto partner at the age of two and by a foster parent between the age of three and five. Across her childhood, Ms McLaughlin often moved foster homes and exhibited challenging behaviour, excessive alcohol consumption, marijuana use and had a sexual relationship with an 18-year-old from the age of 13. She was briefly able to fulfill her desire to return home to her mother's care in 2003, however the arrangement only lasted until 2005 due to conflict between the pair.

25 Ms McLaughlin is reportedly a talented artist and previously obtained a Certificate III in Aboriginal and Torres Strait Islander Art & Design. In 2005, she was a finalist in the Victorian Indigenous Art Awards.

26 Ms McLaughlin was homeless from approximately 2018 until April 2024, when she obtained accommodation in Collingwood through Launch Housing. Her rent has been subsidised by the Collingwood Office of Housing while she has been in custody, so that she does not lose her tenancy.

27 Ms McLaughlin was diagnosed with Paranoid Schizophrenia on 3 October 2022 and mental & behavioural disturbance due to polysubstance use.

28 The applicant has a relevant criminal history dating back over ten years. However, notably, many of her earlier charges resolved without conviction or were dismissed.

29 It is clear that Ms McLaughlin's offending escalated in 2022 and began to include property and drug offences. In this application, the Court was assisted by a joint chronology that detailed the procedural history of the recent matters that remain unresolved. As noted above, these largely involve property offences, although there has been a gradual increase in violent offending.

30 The applicant relies upon a combination of surrounding circumstances to demonstrate that there is a compelling reason justifying the grant of bail. This includes the applicant's Aboriginality and the considerations within s 3A of the Act, the strength of the prosecution case, delay and the likely sentence, the applicant's vulnerability and the availability of bail supports.

31 The applicant places great reliance upon the general matters in s 3A(a)-(c), which include the systemic over-representation of Aboriginal persons in custody, the risk of custody, and the importance of maintaining cultural links. Further, the applicant points to the specific experiences she has experienced that are relevant to s 3A(d), including involvement with foster care from 1992 to 2006 and over 20 placements in state-run facilities and foster homes, extreme trauma, neglect and abuse throughout childhood, sexual abuse, separation from her siblings and her mother's care, homelessness, and ongoing mental health issues. In addition, the applicant points to her previous experiences with state care to demonstrate that custody is likely to be a particularly distressing experience. She further hopes to access the Koori Court if the matter resolves.

32 The applicant submits that there are triable issues as to whether she was attempting to commit theft on the occasion of incident 2, as the CCTV footage does not clearly establish that she intended to grab any of the complainant's property. The applicant further disputes whether the harm caused to the complainant satisfies the definition of 'injury'.

33 The applicant notes that she will have spent 85 days in custody by the time of the Committal Case Conference. Having never received a recorded conviction or a custodial disposition, the applicant suggests that she is unlikely to receive a term of imprisonment that exceeds this period on remand.

34 The applicant points to her stable accommodation and that it is the first time that she has had access to secure housing in a long time. It is submitted that the secure housing is protective and, importantly, is placed in close proximity to the support services available to the applicant.

35 The applicant reiterates her exceptional vulnerability and points to the range of services she has available to her if she is granted bail. This includes an appointment with Sara Cantwell, a Mental Health Clinician at the Neighbourhood Justice Centre ('NJC'), on the day after her release, access to a Case Manager through the Salvation Army 'Greenlight Program', three months of assertive outreach support through the ReStart program, culturally appropriate services as identified by the Dhumba Murmuk Djerring Unit of the Court, dispute resolution services through the NJC and transitional support from the Dame Phyllis Frost Centre.

36 Turning to unacceptable risk, the applicant submits that the respondent has not demonstrated risk to a sufficient degree, nor that the risk cannot be managed by appropriate bail conditions. The applicant identifies that the consideration of s 3A must also occur within the context of unacceptable risk and points, in particular, to the availability of the support services to drastically change the situational factors that contributed to the previous offending. This is said to make the risk acceptable.

37 The respondent concedes that the applicant has demonstrated a compelling reason to justify the grant of bail. The respondent nevertheless notes that the prosecution case is strong and that any triable issues do not detract from this strength. The respondent also notes that the applicant has an extensive criminal history and a history of non-compliance with bail.

38 The respondent accepts that the applicant has had a complex, traumatic and disadvantaged upbringing and that she is vulnerable in custody. The respondent nevertheless has concerns about the proposed housing. The respondent concedes that there is a likelihood that the period on remand, if bail is refused, would exceed any term of imprisonment.

39 Turning to unacceptable risk, the respondent submits that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, namely the complainant in incident 1. The existing PSIO at the time of this offending is said to demonstrate that the applicant has a disregard for court orders and that no bail conditions are able to mitigate this risk.

Section 3A of the Act

40 I have written previously about the significant reforms to the Bail Act 1977 this year,[5] however the discussion bears repeating and expanding.

41 The recent reforms focused, in large part, on the consideration of an applicant's Aboriginality when a decision-maker is faced with an application for bail. The reforms require the Court to actively engage with the applicant's cultural identity in both a specific and a general way. The legislature is very clear in its intention: the engagement with the applicant's Aboriginality is 'to support the common law responsibility on bail decision makers to ensure incarceration rates of Aboriginal peoples are not further compounded unless there is good reason'.[6]

42 Section 3A requires the Court to 'take into account any issues that arise due to a person's Aboriginality' and provides a non-exhaustive list of considerations. Sub-sections (a)-(c) are general factors that apply to an application by any Aboriginal person, including the systemic over-representation in the criminal justice system, the risk of harm that custody poses, and the importance of maintaining and developing cultural connection and kinship. Sub-section (d) calls for an examination of the specific circumstances of the applicant, including their experiences during childhood and any mental illness. Sub-section (e) directs the Court to approach the circumstances more broadly and consider any other cultural issues or obligations, such as the impact of ongoing remand on the prospects of accessing the Koori court system or any other culturally specific activities that would be accessible on bail.

43 The consideration of these factors is necessarily an involved process. It requires the decision maker to contemplate what the historic and ongoing overrepresentation of Aboriginal and Torres Strait Islander people in custody means for the individual before them. It also requires the decision maker to contemplate the specific circumstances of the individual within the broader context of their cultural identity and to view their circumstances through that lens. The Bugmy Bar Book provides carefully researched materials that speak to the significance of this cultural identity on every aspect of the individual and their application.

44 The consideration under s 3A has an important role to play in assessing whether the applicant has established exceptional circumstances or a compelling reason justifying the grant of bail. In many instances, the applicant's Aboriginality and their specific circumstances, viewed in the context of systemic incarceration, may satisfy these tests. This naturally requires consideration of the seriousness of the offending and each application will turn on its facts. However, factors that are ordinarily significant, such as whether the applicant is likely to spend more time on remand than their eventual sentence, will gain added strength when viewed through the particular lens of s 3A.

45 The consideration of Aboriginality arguably has even more work to do in considering whether the applicant poses an unacceptable risk of endangering the safety of any person, interfering with a witness or failing to surrender.

46 The assessment of risk turns on all of the circumstances of the individual and their offending. There will never be an absence of any risk. The real enquiry is about the level of risk that we are content to 'accept' on an application and as a society. This test requires the bail decision maker to balance the apparent risk of the applicant with the conditions that are available to mitigate this risk and to determine if this reaches an acceptable level.

47 The expansion of s 3A introduces an additional factor into this equation. The decision maker must consider whether the risk outweighs the inherent harm in contributing to the over-incarceration of Aboriginal people. This brings to life the legislature's intention to only contribute to this damning statistic where there is 'good reason'. This does not make an application for bail easier for an Aboriginal or Torres Strait Islander person; very serious offending or the presence of family violence may well provide that good reason and the consideration of s 3A may not tip the scales of risk. Nevertheless, it is a weighty consideration.

48 The availability of supports is an important factor in the assessment of risk, especially culturally appropriate programs. This does not require the supports to be so encompassing as to reduce risk to a negligible degree. In many instances, the addition of some supports may prove a circuit-breaker and a protective force, and may reduce risk to an acceptable degree. It is also important to not over-support, such that an individual is overwhelmed upon release and suffocates amidst services.

49 As noted by both parties, this application is subject to the show compelling reason test. Although it is conceded by the respondent that the applicant has demonstrated a compelling reason justifying her release on bail, I would have considered that this threshold was met in any event. Ms McLaughlin has never served a term of imprisonment and has no recorded convictions. It is therefore very unlikely that she will receive a sentence that exceeds the period on remand and this is a compelling factor. Further, I take into account that discrimination has pervaded the lives of Aboriginal people and that incarceration has a cyclical impact on their social and emotional wellbeing.[7] I have also taken into account the challenging circumstances that Ms McLaughlin has faced in her life, especially an involvement with foster care from a very young age and an upbringing riddled with trauma. Additionally, her offending appears to coincide with a deterioration in her mental health, which provides yet another compelling reason for placing her with supports rather than behind bars. Ms McLaughlin is also a direct descendant of the Stolen Generation and it is important to acknowledge the impact this may have on her. For example, a recent study of the Australian Institute of Health and Welfare has explored the lasting impacts on the descendants of the Stolen Generation as compared to Aboriginal and Torres Strait Islander people without any experience of being removed, which included a finding that descendants are 1.5 times as likely to have been arrested in the last five years and 1.3 times as likely to have poor mental health.[8]

50 The significant question in this matter is whether the applicant poses an unacceptable risk of endangering the safety or welfare of any person.

51 There is a very real risk that the applicant will endanger others, as it is evident that her offending was escalating in the days leading up to the offending and there was already a PSIO in place to protect the complainant in one of the incidents.

52 However, as I have said above, the question is whether this risk is 'unacceptable' when viewed against the supports available to the applicant on bail and when taking into consideration the need to not contribute to the number of Aboriginal people in custody (without good reason).

53 The applicant proposes a range of services to address this risk. These were not available to her prior to entering custody and, if she avails herself of the services, will offer a significant protective factor. The services are voluntary and are far from a complete 'wraparound' service. However, the question is whether the conditions are able to reduce the risk to an acceptable level. I am satisfied that the suite of services offered by the NJC go a long way to addressing this risk, including an appointment with Sara Cantwell to facilitate access to these services. I will make attending the appointment with Ms Cantwell a condition of bail.

54 It is equally clear that the applicant was experiencing a deterioration in her mental health at the time of the offending and this is a significant contributor to the risk she poses. Since her last bail application, the applicant no longer meets the criteria for an inpatient assessment order and the Court was informed that this, in part, may stem from her compliance with medication while on remand. It also demonstrates that her mental health has improved to some degree and that she is willing to engage with mental health services and medication.

55 Finally, and as I have explored above, the s 3A considerations are a strongly determinative factor in assessing whether the risk is unacceptable. It is significant that the grant of bail may assist the applicant in seeking a resolution to this matter through the Koori Court. In any event, it is clear from the applicant's early engagement with art and her efforts to honour her late father, that her culture is an important protective factor. The availability of culturally appropriate services as part of her bail conditions are an important consideration. Although I accept there is risk in this grant of bail, I see no good reason to contribute to the over-representation of Aboriginal people in custody by keeping Ms McLaughlin incarcerated.

56 I have had regard to the paramount importance of community safety when deciding to grant bail. The question a bail maker needs to ask is whether bail conditions provide the necessary protection to the community and the accused in the short and long term. Put another way, do the conditions make the risk an acceptable one. In this case, treatment for Ms McLaughlin's mental health and substance abuse are critical to community safety and protection. The proposed conditions provide a realistic pathway to address these concerns. Access to the NJC and the other support services is more likely to provide short term and ongoing benefits and protection to the applicant and the community compared to further time on remand.

57 For the above reasons, I am satisfied that Makia McLaughlin be admitted to bail on her own undertaking and on the following special conditions:

(a) She attend the Melbourne Magistrates' Court on 10 January 2025 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.

(b) She reside at the [Collingwood address] in Victoria, and not change that address without the leave of the Court.

(c) She remain at those premises between the hours of 11pm-6am each day for the duration of bail.

(d) She present herself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.

(e) She must comply with all current Personal Safety Intervention Orders in which she is the respondent.

(f) She attend the Neighbourhood Justice Centre on 14 November at midday to make contact with Ms Sara Cantwell from the Client Services team.

(g) She attend a medical appointment with the Victorian Aboriginal Health Service on 15 November 2024.

(h) She report every Friday to the Officer in Charge of the Police Station at Collingwood or his or her nominee, between the hours of 6am and 2pm.

(i) She appear for Aboriginal Hearing Day at the Neighbourhood Justice Centre at 10am on 21 November 2024 for all outstanding matters.

(j) She reappear before the Court for judicial monitoring to review her compliance with this order at 2pm on 3 December 2024, and any further dates this Court appoints during the course of this order.

[1] Pursuant to s 4.

[2] Pursuant to item 31 of Schedule 2 of the Act.

[3] Re Ceylan [2018] VSC 361, [47].

[5] Re Terei [2024] VSC 294.

[6] Victoria_, Parliamentary Debates_, Legislative Assembly, 31 August 2023, 2941 (Harriet Shing, Minister for Water, Minister for Regional Development, Minister for Equality).

[7] Bugmy Bar Book Committee, 'Impacts of Imprisonment and Remand in Custody' in Bugmy Bar Book (online, November 2022), 1.

[8] Bugmy Bar Book Committee, 'Aboriginal and Torres Strait Islander Stolen Generations and Descendants' in Bugmy Bar Book (online, January 2020), 5-6.