Re RK [2024] VSC 792 (18 December 2024)

1 RK ('the applicant') seeks bail in relation to sixteen sets of charges brought by various informants.[1] A summary of the charges is set out below, but I have considered all of the alleged offending:

(a) The applicant is charged with five counts of unlawful assault (summary, one of them being aggravated), aggravated burglary, intentionally cause injury, recklessly cause injury and threat to kill. Those charges relate to three occasions on which the applicant is alleged to have engaged in violent behaviour against his mother, sister and nephew, each of whom is the subject of a family violence intervention order ('FVIO') in respect of which the applicant is the respondent.

(b) The applicant is also charged with persistent contravention of an FVIO, four counts of breach an FVIO by attendance, contravene an FVIO by correspondence and contravene an FVIO by agency communication. Those charges relate to six occasions on which the applicant either attended the residence of his mother or sought to contact her in breach of an FVIO.

(c) The applicant is charged with two counts of stalking, one count of attempted stalking and two counts of use carriage service to harass. Those charges relate to alleged stalking and contact by the applicant in relation to a former partner.

(d) The applicant is alleged to have committed a range of less serious offences, including many charges of fail to answer bail as well as charges of theft, trespass, handle stolen goods, retention of stolen goods and resist police officer. He is also alleged to have committed various offences associated with breaching the conditions of his bail.

2 The applicant is a 31-year-old Aboriginal man with diagnoses of schizoaffective disorder and schizophrenia and a history of substance use. As at the date of the hearing, he had spent 239 days on remand in relation to the charges. His most recent period of remand was for 46 days. During his previous period of remand, he spent nearly two months in the Thomas Embling Hospital. The matter was listed for mention before the Magistrates' Court on 10 December 2024.

3 At the conclusion of the hearing, I granted bail to the applicant. These are my reasons for granting bail.

4 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').[2]

Determination in relation to an Aboriginal person

5 In making the assessment, it is relevant that the applicant is an Aboriginal person. The applicant's father is a Madi Madi man and his grandmother on his mother's side is a Gunditjmara woman. In making a determination in relation to an Aboriginal person, the Court is required to take into account any issues that arise due to that person's Aboriginality.[3] Those matters include 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; the risk of harm and trauma that being in custody poses to Aboriginal people; and the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community.[4]

6 Section 3A in its current form was introduced by s 33 of the Bail Amendment Act 2023. In the second reading speech, the Minister said that s 3A required bail decision-makers to consider 'broader systemic factors that drive inequality as well as circumstances relevant to Aboriginal people' and that the provision was 'intended 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'.[5] The considerations in s 3A are relevant both to the assessment of exceptional circumstances and unacceptable risk, which are explained below.[6] As Incerti J observed in Re Terei:

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.[7]

7 As the applicant is charged with a Schedule 2 offence within the meaning of the Act,[8] which is alleged to have been committed while the applicant was on bail for a Schedule 2 offence,[9] bail must be refused unless he can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[10] In considering whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those relevant in s 3AAA(1) of the Act.[11]

8 If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the unacceptable risk test. Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[12] Those risks include, relevantly, the risk that the accused would, if released on bail:

(iaa) commit a Schedule 1 offence or a Schedule 2 offence; or

(i) otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or

(iv) fail to surrender into custody in accordance with the conditions of bail; ...[13]

9 In considering whether any relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[14]

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

11 Each of the four FVIOs relate to family members of the applicant, including his mother, sister and nephew. The orders contain full no contact and exclusion conditions.

12 As noted, the applicant is a 31-year-old Aboriginal man. He has diagnoses of schizoaffective disorder and schizophrenia and he spent some of his previous period of remand at Thomas Embling Hospital. He has not worked for several years due to his mental health issues. He has a history of substance dependence, including using ice since he was 27 years old. His relationship with his mother is fractured.

13 The applicant has an NDIS plan, which entitles him to 21 hours of intensive support work (3 hours per day). The NDIS plan provides the applicant with support relating to day-to-day activities such as shopping and attending medical appointments. He also has access to the Hume Community Mental Health Service, including regular appointments and depot injections.

14 The applicant does not have a significant criminal history.

15 The applicant relied principally on his Aboriginality, his vulnerability in custody as a result of his Aboriginality and his mental health diagnoses, and the significant period he has spent on remand, which it was submitted is likely to exceed any custodial sentence imposed as a result of the charges. The applicant also said that there was likely to be delay in resolving the matters because of the need for the applicant to be assessed by a psychiatrist and because there are triable issues in relation to a number of the matters. The applicant submitted that much of his alleged offending is causally-connected to his homelessness. In relation to the risk of family violence, the applicant submitted that there have been no reports of family violence offending or breaches of FVIOs since 21 December 2023, which is close to 12 months ago.

16 The respondent accepted that the applicant's mental health diagnoses, NDIS support, lack of criminal history and time spent on remand could establish exceptional circumstances.

17 Although there is no single factor that, on its own, makes the circumstances exceptional, I am persuaded that in combination the circumstances are exceptional. I give great weight to the fact that it is almost inevitable that the period on remand, including further remand, would exceed any term of imprisonment that might be imposed.

18 Significantly, the applicant has spent 239 days on remand in relation to the charges. Given that the applicant has not previously had any convictions recorded, his personal circumstances and the nature of the alleged offending, there is a very real prospect that, in the event that he is convicted of one or more of the charges and receives a custodial sentence, the period he has spent on remand would well exceed any custodial sentence he receives. It is also possible that there will be a further delay before the charges are resolved. That is a significant factor in favour of there being exceptional circumstances justifying the grant of bail.

19 It is important that the Court, when considering whether to grant bail, assesses whether there are alternatives that can ameliorate or avoid incarceration on remand and is conscious of the additional burdens that incarceration entails for Aboriginal people. The overrepresentation of Aboriginal people in the criminal justice system is also a relevant factor.

20 Further, the applicant would be vulnerable in a custodial setting by reason of his mental health diagnoses and, as already noted, he resided at Thomas Embling Hospital for a period of time earlier this year.

21 I accept that some of the alleged offending is causally connected to the applicant's homelessness, although some of the alleged offending, particularly the charges relating to family violence, is more serious.

22 I also take into account the fact that the more serious offences were alleged to have been committed some time ago. No doubt the delay in the finalisation of the charges has been accentuated by reason of the applicant's failure to answer bail. However, there are a number of reasons for that failure, including the applicant's mental health. This does not appear to be a case of deliberating flouting bail conditions.

23 I am satisfied that there are exceptional circumstances that justify the grant of bail and note that the respondent fairly submitted that it was open for the Court to so find.

24 The respondent contended that the applicant poses an unacceptable risk of failing to surrender into custody with the conditions of bail and also referred to the risk of the applicant committing a further Schedule 2 offence or otherwise endangering the safety or welfare of any other person through an act of violence. In respect of the latter two risks, the respondent accepted that the severity of the applicant's offending has reduced somewhat over the past 12 months.

25 However, the respondent noted the applicant's poor compliance with previous bail undertakings, including failing to appear at court in answer to his bail. The respondent also relied on the severity of some of the alleged offending, the FVIOs to which he is the respondent and the applicant's drug use, submitting that the relevant risks are increased by the applicant's substance use and proposed living arrangements. The respondent said that it is proposed that the applicant be returned to largely the same environment that he was in before he was remanded and noted that, after a previous period of remand and specific mental health treatment at the Thomas Embling Hospital, the applicant offended shortly after his release on bail.

26 The applicant relied on many of his submissions regarding exceptional circumstances on the issue of unacceptable risk. Further, the applicant submitted that through the NDIS he has transport from custody to his home should he be bailed and 21 hours per week of high-intensity support work. He also submitted that there is now a line of communication between his lawyer and his NDIS Support Coordinator, meaning that they are aware of his upcoming court dates.

27 The applicant relied on the fact that there has been no alleged Schedule 2 offending since June 2022 and no family violence charges or recorded incidents since December 2023. The applicant proposed various bail conditions that he submitted would reduce the likelihood of the relevant risks eventuating.

28 The applicant also referred to an ongoing attempt to facilitate a referral to a culturally-appropriate service, Dardi Munwurro, which provides both in-community support and residential support designed and managed by First Nations alcohol and drug workers. As at the date of the hearing, the referral was still ongoing.

29 There is a risk that the applicant might commit a further Schedule 2 offence or otherwise endanger the safety or welfare of any other person through an act of violence. However, the most recent charge of violent offending relates to events that occurred almost 12 months ago. The more recent charges are of a less serious nature and do not suggest an ongoing unacceptable risk of the relevant kind.

30 There is also obviously a risk that the applicant will fail to surrender into custody in accordance with the conditions of bail in light of the several charges of fail to answer bail which are the subject of this application. However, there has been some recent improvement in the management of this risk, including by the facilitation of a direct line of communication between the applicant's solicitor and his NDIS Support Coordinator. The applicant's solicitor has also made initial efforts to facilitate a referral to Dardi Munwurro. While that process is ongoing, a successful referral would significantly mitigate the relevant risks and I therefore emphasise the importance of the applicant's solicitor completing that referral, or a similar referral, as soon as possible.

31 Further, I am not satisfied that any of the relevant risks are unacceptable having regard to the overall seriousness of the alleged offending, the surrounding circumstances to which I have already referred (including, in particular, the applicant's Aboriginality and mental health diagnoses) and the bail conditions that I imposed, which mitigate the relevant risks to some extent. I also consider that the risks must be weighed against the prospect of the applicant serving an even longer period of remand which is increasingly capable of being characterised as 'akin to a form of preventive detention'.[15]

32 Ultimately, I consider that the respondent has not proved that an unacceptable risk would result from granting bail. Accordingly, I granted the applicant bail.

33 Finally, as I observed at the hearing, there has been a lamentable delay in the hearing of the charges the subject of the application, some of which date back several years. This delay has led to the applicant spending a very considerable period of time on remand relative to the seriousness of the charges and other relevant factors. Although that delay may be attributable in part to the applicant's non-attendance at court on several occasions, it underscores the great importance of resolving the charges as soon as possible.

[1] A pseudonym has been used to ensure compliance with s 166 of the Family Violence Protection Act 2008.

[5] Victoria, Parliamentary Debates, Legislative Assembly, 16 August 2023, 2900 (Anthony Carbines, Minister for Police, Minister for Crime Prevention, Minister for Racing).

[6] See notes to ss 4A(3) and 4E(3)(a) of the Act. See also Re Terei [2024] VSC 294, [58] (Incerti J).

[7] [2024] VSC 294, [61]. See also HA (a pseudonym) v The Queen [2021] VSCA 64, [58]-[59] (Maxwell P and Kaye JA) (citations omitted) ('HA'), in relation to a previous version of the provision.

[8] Namely, persistent contravention of a family violence intervention order, an offence against s 125A of the Family Violence Protection Act 2008; see the Act, sch 2, item 19.

[9] Namely, aggravated burglary, contrary to s 77(1) of the Crimes Act 1958; see the Act, sch 2, item 22(b).

[13] Section 4E(1)(a)(iaa) was inserted by the Youth Justice Act 2024 and commenced operation on 2 December 2024, after the notice of intention to make an application for bail was filed but before the hearing of the application. Section 34(24) of the Act provides that an amendment made by a relevant provision of the Youth Justice Act 2024 applies to an application made on or after the commencement of the provision, regardless of when the offence is alleged to have been committed. As Fox J explained in Re Tiburcy [2024] VSC 163 in relation to a similar transitional provision of the Act, a bail application itself is made on the day of the hearing, and not earlier: [21] n 20. Accordingly, the amended form of s 4E(1)(a) applied to this application.

[15] HA [2021] VSCA 64, [63] (Maxwell P and Kaye JA).