Re TQ [2025] VSC 82 (7 March 2025)

1. On 10 December 2024, TQ was released by police on bail to attend the Magistrates' Court of Victoria at Mildura on 13 December 2024 in respect of the Informant Von Tunk Charge. TQ was also released on bail to attend the Magistrates' Court of Victoria at Mildura on 17 March 2025 in respect of the Informant Harding Charge, the Informant Gear Charge and the Informant Pitt Charges. TQ failed to appear at the Magistrates' Court on 13 December 2024.
2. TQ was then arrested on 31 January 2025 and charged with the following offences:

(1) Assault, contrary to common law, contravention of a family violence intervention order, contrary to section 123(2) of the Family Violence Protection Act and trespass, contrary to section 9(1)(e) of the Summary Offences Act, each alleged to have been committed on 6 October 2024 (together, "the Informant Fraser Charges").

(2) Failure to answer bail in respect of the Informant Von Tunk Charge, contrary to section 30(1) of the Bail Act 1977 (Vic) ("the Informant Hatzimanolis Charge").

1. TQ was released on bail to attend the Magistrates' Court on 6 February 2025 in respect of the Informant Von Tunk Charge, the Informant Fraser Charges and the Informant Hatzimanolis Charge. TQ failed to appear at court on that date.
2. On 12 February 2025, TQ was arrested and charged with theft, contrary to section 74 of the Crimes Act, alleged to have been committed on 24 December 2024 and 3 charges of failing to answer bail on 6 February 2025, contrary to section 30(1) of the Bail Act (together, "the Informant McBain Charges").
3. At the time of the initial hearing before this court on 28 February 2025, TQ had been on remand since his arrest on 12 February 2025. He made an unsuccessful application for bail, heard on 13 and 17 February 2025 in the Magistrates' Court in respect of the Informant Von Tunk Charge, the Informant Fraser Charges, the Informant Hatzimanolis Charge and the Informant McBain Charges.
4. That application for bail was refused on the basis that TQ posed an unacceptable risk of endangering the safety or welfare of any person, whether by committing an offence that had that effect or by any other means and of failing to surrender into custody in accordance with conditions of bail.[3] The court also ordered that bail be revoked in respect of the Informant Harding Charge, the Informant Gear Charge and the Informant Pitt Charges.
5. The Informant Fraser Charges, the Informant Harding Charge, the Informant Von Tunk Charge, the Informant Gear Charge, the Informant Pitt Charges, the Informant Hatzimanolis Charge and the Informant McBain Charges (together, "the Supreme Court Bail Application Charges") were next listed for mention in the Magistrates' Court on 27 February 2025.
6. A case management conference was held at the Magistrates' Court on 27 February 2025, during which the parties discussed the status of the Supreme Court Bail Application Charges.
7. At the hearing of the initial application for bail before this court on 28 February 2025, counsel for TQ informed the court that as a result of the case management conference:

(1) Victoria Police would withdraw the Informant McBain Charges.

(2) Victoria Police would amend the Informant Pitt Charges to a Summary Offences Act charge of assault in circumstances of excessive self-defence, to which TQ had indicated he would plead guilty.

(3) Victoria Police would amend the Informant Fraser Charges to a charge of contravention of a family violence intervention order intending to cause harm or fear for safety, to which TQ had indicated he would plead guilty.

(4) TQ had indicated he would plead guilty to the Informant Von Tunk Charge and the Informant Gear Charge.

(5) TQ was considering an offer by Victoria Police to withdraw the Informant Harding Charge and for TQ to plead guilty to the charge of wilful damage under the Summary Offences Act.

1. There are also 2 other outstanding charges against TQ, being contravention of a community correction order made on 30 May 2018, as varied on 10 October 2018, in respect of a conviction of wilfully damaging property ("the Informant Bellini Charge") and failure to answer bail on 6 August 2024 in respect of the Informant Bellini Charge ("the Informant Taylor Charge"). TQ is currently on bail in respect of the Informant Bellini Charge and the Informant Taylor Charge, which are next listed for mention in the Magistrates' Court on 17 March 2025.
2. Counsel for TQ also informed this court on 28 February 2025 that TQ had indicated he would plead guilty to the Informant Bellini Charge.

A.2 Initial application heard on 28 February 2025

1. On 20 February 2025, TQ filed a notice of intention to make an application for bail in this court in respect of the Supreme Court Bail Application Charges. In support of his application, TQ relied upon the combined weight of a number of factors said to support the existence of a compelling reason justifying the grant of bail. It was further suggested that any risk associated with a grant of bail could not be considered unacceptable. In both respects, TQ placed particular weight upon his Aboriginality, his relatively limited prior criminal history, the likelihood of a non-custodial sentence being imposed if found guilty of the charges and the availability of culturally appropriate supports and treatment.
2. The prosecution conceded that it was open to the court to find that a compelling reason existed, but initially opposed TQ's application on the basis that TQ presented an unacceptable risk of endangering the safety or welfare of any person, whether by committing an offence that had that effect or by any other means and of failing to surrender into custody in accordance with the conditions of bail. The prosecution emphasised the violent and anti-social nature of TQ's alleged offending, as well as his recent failures to attend court to answer bail.
3. TQ's application for bail was heard on 28 February 2025. At the conclusion of that hearing, TQ was granted bail for 1 week subject to strict conditions. The prosecution accepted that any unacceptable risk could be ameliorated to an acceptable level by the imposition of strict conditions of bail for that limited period. At the time of making those orders, for the reasons outlined below,[4] I was satisfied that TQ had established the existence of a compelling reason that justified the grant of bail and that the prosecution had not established that TQ posed an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.

1. A further application for bail was made today. That application was not opposed by the prosecution.
2. At the hearing today, counsel for TQ indicated that each of the Supreme Court Bail Application Charges had resolved, and that they would proceed before the Koori Court in approximately 2 months' time.
3. For the reasons that follow,[5] the further application for bail is granted.

1. The following accounts of the offending to which the Supreme Court Bail Application Charges relate are based on the prosecution case and comprise allegations only.

1. On 29 April 2024, a family violence final intervention order was issued by the Magistrates' Court ("the Intervention Order"), specifying TQ as the respondent and naming a protected person ("the Protected Person"). The terms of the Intervention Order prohibit TQ from going to or remaining within 100 metres of the Protected Person's residence if affected by drugs or alcohol. The Intervention Order will expire at midnight on 28 April 2025, unless extended or varied.
2. On 6 October 2024, TQ allegedly attended the Protected Person's residence and entered the house through a laundry window. At approximately 2.45pm that day, the Protected Person returned home and discovered TQ inside the home.
3. When the Protected Person requested that TQ leave, TQ allegedly became angry and pushed the Protected Person in the chest. It is alleged TQ then grabbed the Protected Person by her neck and held her up against an internal wall of the house by her throat. The Protected Person pushed TQ away, and he allegedly struck her face with his elbow as she did so.
4. The Protected Person pushed TQ out of the back door of the house, locked it and called police. TQ had left the house by the time the police arrived.
5. TQ was interviewed at Mildura Police Station on 9 December 2024 and allegedly made full admissions to the alleged offending.

1. On 3 November 2024, TQ visited the house of an acquaintance several times throughout the day. When requested to leave by the acquaintance, on each occasion TQ left peacefully.
2. At approximately 9.30pm that day, TQ returned to the house and allegedly yelled and banged on the front door. TQ was again asked to leave the house by the acquaintance.
3. As TQ was leaving the house, he allegedly threw a lit cigarette into a large plastic rubbish bin on the property, causing the bin and its contents to catch fire. When the acquaintance walked outside to put some rubbish in the bin, she observed flames coming from inside the bin.
4. Following his arrest on 9 December 2024, TQ was interviewed at Mildura Police Station and allegedly admitted to throwing a lit cigarette into the rubbish bin with the intention of it starting a fire because "they" owed him money.

1. At approximately 4.00pm on 30 November 2024, TQ attended the Protected Person's residence to collect some of his belongings. The Protected Person requested that TQ leave the residence. TQ allegedly began to yell at the Protected Person, and the Protected Person opened the front door for TQ.
2. As TQ allegedly continued to yell at the Protected Person, the Protected Person led TQ out of the residence and closed the door on him. TQ allegedly continued to yell at the Protected Person and began kicking at the door. The Protected Person contacted police, who attended shortly after and spoke to the Protected Person at her residence.
3. Following his arrest on 9 December 2024, TQ was interviewed at Mildura Police Station and allegedly made full admissions to the alleged offending.

1. At approximately 8.20pm on 30 November 2024, TQ allegedly visited an acquaintance's house looking for her partner. The acquaintance told TQ that her partner was not at home.
2. TQ allegedly became angry and threw a rock at the acquaintance's motor vehicle, causing the rear windscreen to shatter. It is alleged TQ then left the property after a verbal argument with the acquaintance's partner, who had exited the house after the windscreen was shattered.
3. Following his arrest on 9 December 2024, TQ was interviewed at Mildura Police Station and admitted to throwing the rock through the vehicle's window because "they" owed him money.

1. On or around 18 November 2024, a former male work colleague of TQ lent $50 to TQ. The former colleague subsequently attempted to contact TQ to request that the money be repaid.
2. At approximately 12.00 noon on 2 December 2024, the former colleague encountered TQ while walking along a street in Mildura. TQ allegedly exited a residence on that street, holding a brick and a bicycle rim. He allegedly began shouting at his former colleague, asking why the former colleague had been knocking on doors in the street and telling people that TQ owed him money.
3. TQ then allegedly dropped the bicycle rim and approached his former colleague with the brick, punching his former colleague and twice striking him on the forehead with the brick, causing his former colleague to bleed and become disorientated and dizzy. TQ then allegedly dropped the brick, returned to the residence and picked up a manual edge trimmer. TQ then allegedly swung the edge trimmer around and shouted verbal abuse at his former colleague.
4. When a member of the public began to shout at TQ to stop, TQ allegedly ran away.
5. Following his arrest on 9 December 2024, TQ was interviewed at Mildura Police Station. He denied knowing his former colleague when shown photographs of him, and provided no comment in relation to the alleged incident.

1. At approximately 2.15pm on 24 December 2024, TQ entered a public venue in Mildura with another male and female. TQ allegedly proceeded to the bar area and attempted to purchase a drink. TQ and his companions were asked to produce identification. They were unable to do so, and were asked to leave.
2. As TQ exited that venue, he allegedly took an Australian flag located inside the venue. As he then walked to another public venue in Mildura, he was allegedly observed by staff at that second venue with an Australian flag.
3. It is alleged that closed circuit television footage shows TQ taking an Australian flag from the first venue and TQ then with the flag in his possession at the second venue.
4. Following his arrest on 12 February 2024, TQ was interviewed at Mildura Police Station. TQ admitted grabbing an Australian flag at the first venue, but stated that he threw the flag on the ground within 10 seconds of taking it.

1. As noted above,[6] the Informant Hatzimanolis Charge relates to TQ's failure to answer bail in respect of the Informant Von Tunk Charge.

1. TQ is an Aboriginal man in his late 20's with connections to the Barkindji people of the Mildura region of Victoria through his paternal line; and to the Yorta Yorta people of the Deniliquin region of New South Wales through his maternal line. His grandmother was a descendent of the Stolen Generation and was raised in a mission in New South Wales. TQ resides in Mildura.
2. TQ's childhood was characterised by economic and social challenges. TQ's father was seldom present. He was raised primarily by his mother. While TQ's mother was a loving and caring parent, she bore the burden of intergenerational difficulties associated with being a descendant of the Stolen Generation, suffered from health conditions and was frequently hospitalised. TQ recalls several episodes where his mother was affected by "fits", during which he attended to her and called an ambulance to assist.
3. TQ has reported being exposed to violence and substance abuse as a child, both within his family and among the broader community.
4. TQ has 3 entries within his prior criminal history in the Children's Court of Victoria, the first being from 2012 when he was 16 years of age.
5. In spite of these challenges, TQ completed secondary schooling and immediately commenced full-time employment. This involved working in vineyards, as a farmhand and completing general maintenance work.
6. TQ's mother unexpectedly passed away in 2019, and his brother passed away in 2020. He has reported that these losses had a significant impact upon his emotional wellbeing. While TQ continued to work in the years that followed, in 2024 he ceased employment due to a decline in his mental health, which he attributes to enduring grief over the passing of his mother and brother. This decline and the cessation of his employment broadly correspond with the timing of TQ's recent alleged offending.
7. Around the same time, TQ commenced the use of illicit substances. TQ has reported that he began using methamphetamine daily around 5 to 6 years ago. He has also reported that he began to use marijuana around 7 years ago, and that he used it every couple of days.
8. Although TQ's relationship with the Protected Person has recently been strained, TQ has ties to his culture through his family and friendships in Mildura and relies on those ties as a source of support. By way of example, TQ has a connection to Mallee District Aboriginal Services, an Aboriginal community controlled health organisation that delivers services to the community of Mildura, among other locations. Prior to his remand, he attended Mallee District Aboriginal Services to connect with other members of his community, have meals and share stories.
9. TQ has a young son who resides separately with his mother in Mildura. TQ has a positive relationship with his son and saw him regularly in the community prior to his remand. TQ's son's mother is not Aboriginal. TQ is the only link that his son has to his Aboriginality.
10. TQ has experienced housing instability and homelessness since the latter half of 2024. While he had spent parts of this period residing with family members and associates, he had not had consistent accommodation at any particular address. No viable bail address was able to be proposed when bail was refused on 17 February 2025.
11. TQ had reported previously being diagnosed with depression and anxiety. He had also communicated that his depressive and anxious symptoms had been exacerbated by the time he had spent in custody. That said, no supporting material was provided to the court in respect of TQ's psychological state.
12. Aside from the 3 entries within the Mildura Children's Court,[7] the first entry in TQ's criminal record in Victoria as an adult was a financial penalty in May 2017 for intentional damage to property, 2 charges of unlawful assault, being drunk in a public place and failing to answer bail. TQ was convicted of a single charge of wilful damage to property on 30 May 2018 and was sentenced to a community correction order for a period of 6 months. The order was varied in October 2018 to add a further 3 months to the length of the order following a contravention.
13. TQ also has a criminal history in New South Wales. On 6 September 2016, he was found guilty in absentia for an assault committed on 25 May 2016.
14. TQ has a recent history of several instances of failing to comply with the conditions of his previous grants of bail. In addition to allegedly reoffending while on bail, TQ has failed to attend court on several occasions.

1. For the purposes of the initial application for bail on 28 February 2025, the court was assisted by a Court Integrated Services Program report dated 26 February 2025 and prepared by a case manager at Court Support Services. The report was based on assessments with TQ conducted via telephone on 13 February 2025 and 26 February 2025.
2. Court Support Services recommended TQ as suitable for case management, that the Court Integrated Services Program should form part of any bail conditions and that the matter should be adjourned to allow time to commence a treatment and support plan.
3. The report noted that TQ presented with issues in relation to illicit and other substances, mental health, accommodation and family violence risk. The report also stated that the following initial treatment and support plan had been arranged for TQ should he be granted bail, namely that TQ would:

(1) Reside at an address in Mildura with a friend.

(2) Attend a further assessment in relation to substance abuse or alcohol issues, or both, with an accredited worker.

(3) Attend an appointment with a general practitioner for a mental health review.

(4) Attend his first Court Integrated Services Program appointment on Tuesday, 4 March 2025.

1. Finally, the report noted that TQ was willing to be referred to alcohol and other drug counsellors, had participated in a men's behaviour change program in the past and was willing to do so again if deemed necessary.

B.4 Cultural support plan from Court Services Victoria

1. The court was also assisted by a cultural support plan provided to the court on 27 February 2025 and prepared by a director of Koori Policy and Planning at Court Services Victoria.
2. In the event that TQ were granted bail, it was recommended that referral to the following culturally appropriate bail supports be considered:

(1) Ngwala Willumbong. Through the clinical services unit, Yitjawudik is a 24-hour residential rehabilitation centre for Aboriginal men over the age of 18 years who suffer from alcohol or drug dependency problems.

(2) Dardi Munwurro. Designed and managed by First Nations alcohol and other drug workers, the program's principles consider fundamental issues such as intergenerational trauma and racism and work directly with the community through community service organisations, families and individuals seeking help.

1. In interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B. These include the competing considerations of maximising the safety of the community, and the presumption of innocence and the right to liberty.[8]
2. TQ is charged with an offence listed under Schedule 2 of the Bail Act, namely, contravention of an order under section 123 of the Family Violence Protection Act.[9]
3. Accordingly, pursuant to section 4AA(3) of the Bail Act, he must demonstrate that a compelling reason exists to justify the grant of bail.
4. The expression "compelling reason" is not defined in the Bail Act. However, the construction adopted by Beach JA in Re Ceylan[10] has been subsequently applied on numerous occasions,[11] and was cited with approval by the Court of Appeal in Rodgers v The Queen[12] in summarising the principles to be applied when considering the compelling reason test:[13]

(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.

(2) It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional.

(3) A compelling reason is one which is forceful and therefore convincing - a reason which is 'difficult to resist'.

1. While it may be the case that none of the matters relied upon may be regarded as compelling individually, when taken together, their combined weight may satisfy the compelling reason test.[14]
2. If satisfied that a compelling reason exists, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[15] In assessing that risk, the court must consider whether the risk posed may be mitigated by any conditions of bail.[16] Section 5AAA(1) of the Bail Act requires the court, when considering the release of an applicant on bail, to impose any conditions it considers will reduce any risk to an acceptable level. A non-exhaustive list of possible conditions is outlined under section 5AAA(4), which relevantly includes attendance upon and participation in a bail support service.[17] Section 5AAA(4A) provides that, if the court is considering imposing such a condition in respect of an applicant who is an Aboriginal person, regard must be had to the importance of participation in Aboriginal bail support services[18] where such services are available and appropriate.
3. The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the compelling reason test has been met.[19] The notion of unacceptable risk does not concern merely any risk of offending. Rather, the question is whether such a risk is unacceptable.[20] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[21]
4. In considering both whether a compelling reason exists and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[22] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1) of the Bail Act:

(aa) whether, if the accused were found guilty of the offence with which the accused is charged, it is likely -

(i) that the accused would be sentenced to a term of imprisonment; and

(ii) if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(i) was on bail for another offence; or

...

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f) whether there is in force - [23]

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised DVO[24] made against the accused;

(g) the accused's personal circumstances, associations, home environment and background;

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

(i) being an Aboriginal person; or

...

(iii) experiencing any ill health, including mental illness; or

...

(i) the availability of treatment or bail support services;

...

(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

...

1. In cases such as this where an applicant has been charged with a family violence offence, section 5AAAA(2) of the Bail Act requires the court to consider:

(a) whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and

(b) whether that risk could be mitigated by -

(i) the imposition of a condition; or

(ii) the making of a family violence intervention order.

1. If the court is considering the release of an applicant on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of the risk that the applicant may endanger the safety or welfare of any person, whether by committing an offence that has that effect or by any other means, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the bail undertaking.[25] However, those conditions must be no more onerous than is required to reduce the likelihood of the risk in question, and must be reasonable, having regard to the nature of the alleged offending and the circumstances of the applicant.[26]
2. In addition, the conditions of bail must, relevantly, be consistent with each condition of each family violence intervention order to which the applicant is subject unless the court is satisfied that a condition that is inconsistent with a family violence intervention order would better protect the safety or welfare of an alleged victim of the offence with which the accused is charged, or a protected person (within the meaning of the Family Violence Protection Act).[27]
3. Further, section 3A(1) of the Bail Act provides that, in making a determination in relation to an Aboriginal person, the court must take into account any issues that arise due to that person's Aboriginality. The provision provides a non-exhaustive list of considerations to be taken into account in such applications, 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.

1. The considerations outlined in paragraphs (a) to (c) are directed towards ensuring that a bail decision maker has regard to systemic and multigenerational disadvantages faced by Aboriginal peoples, and therefore have general application to any bail application made by an Aboriginal person. While the considerations enumerated in paragraph (d) more obviously concern an applicant's personal circumstances, they must nevertheless be viewed through the lens of the applicant's history and culture, with the matters referred to in paragraphs (a) to (c) (and, if applicable, paragraph (e)) in mind.[28]
2. The list of considerations under section 3A(1) was significantly broadened in March 2024, following "significant" reforms to the Bail Act directed in part towards addressing the discriminatory impact of the bail system on Aboriginal peoples and the grossly disproportionate rates of remand among members of their communities.[29] As they pertain to section 3A, the reforms are intended to ensure that courts have greater regard to the broader systemic factors that have driven inequality; as well as circumstances relevant to Aboriginal people, including factors that make them particularly vulnerable in custody. In this way, the provision supports the common law requirement that bail decision makers must "ensure incarceration rates of Aboriginal peoples are not further compounded unless there is good reason".[30]
3. This responsibility must be kept front of mind in the practical application of section 3A(1). The significance of section 3A is evident from the fact that it is a standalone provision, rather than incorporated into the broader list of surrounding circumstances under section 3AAA(1).[31] Its significance is also confirmed by the fact that, following the recent reforms to the Bail Act, the considerations in section 3A(1) must be taken into account regardless of the extent or duration of an applicant's connection to their culture or heritage;[32] and those in paragraphs (a) to (c) must be taken into account whether or not any evidence or information in respect of these issues is put before the court.[33] It is then further reinforced by the requirement for the court, when refusing to grant bail to an Aboriginal person, to expressly identify the specific matters listed under section 3A(1) to which regard has been had.[34]
4. In short, although the requirements of the provision are not intended to be onerous,[35] the process of taking an applicant's Aboriginality into account in the manner that section 3A demands must underpin any determination made under the Bail Act in respect of an Aboriginal person, including whether a compelling reason justifying a grant of bail exists, and also whether an applicant poses an unacceptable risk of the kind described under section 4E(1).[36]
5. This is of course not to suggest that an Aboriginal applicant charged with committing serious crimes should automatically be granted bail. Nor does it mean that a more lenient test is to be applied in assessing compellability or risk in an application for bail made by an Aboriginal person. However, the Aboriginality of an applicant would ordinarily be a "weighty factor"[37] to which serious regard must be given in any application for bail.[38]
6. The considerations listed under section 3A must also be understood in light of the cultural rights possessed by Aboriginal peoples and protected under section 19 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[39] This includes the rights of Aboriginal peoples to enjoy their identity and culture and to maintain their language, their kinship ties and their distinctive spiritual, material and economic relationship with the land, waters and other resources.[40]

1. On behalf of TQ, it was submitted that a compelling reason justifying a grant of bail could be established by the combined weight of several factors, including:

(1) TQ's Aboriginality. In this regard, reference was made to section 3A of the Bail Act and each of the considerations now listed under that provision, as well as the broader purposes of the March 2024 reforms. TQ's status as a descendent of the Stolen Generation and the intergenerational difficulties he has experienced as a result were referred to, as was his background of social and economic disadvantage. Further, it was submitted that TQ's opportunity to meaningfully participate in Koori Court, for which he would be eligible if a plea of guilty were entered in relation to outstanding charges, was another relevant consideration.[41]

(2) The nature and seriousness of the alleged offending. It was submitted that the alleged offending sat within the lower range of seriousness for this type of offending. It was also contended that no injuries were sustained by the Protected Person in relation to the Informant Fraser Charges.

(3) The strength of the prosecution case. It was submitted that there were triable issues in relation to the Informant Harding Charge, Informant McBain Charges, Informant Pitt Charges and the Informant Fraser Charges.

(4) TQ's relatively limited prior criminal history and the fact that he had never been held on remand or served a custodial sentence prior to 12 February 2025.

(5) The availability of culturally specific support services, including legal representation by the Victorian Aboriginal Legal Service and the support of a Victorian Aboriginal Legal Service client support officer, as well as the support of the Court Integrated Services Program, to assist TQ in complying with future bail conditions.[42] It was also submitted that TQ was enthusiastic about participating in any rehabilitation programs that can be provided by Mallee District Aboriginal Services and the Men's Healing Program conducted by Dardi Munwurro, as well as any other supports recommended by the Court Integrated Services Program, if granted bail.

(6) His background of trauma, dislocation and difficulty.

(7) His mental health issues, including his declining mental health by reason of him being held on remand.

(8) The length of time TQ is likely to spend in custody if bail is refused.

(9) The likely sentence to be imposed if he were to be found guilty of the alleged offending. It was submitted that a community correction order was within the range of the likely sentence and that TQ was unlikely to receive any term of imprisonment. It was also submitted that in light of TQ's personal circumstances and background, the principles in Bugmy v The Queen[43] and Marrah v The Queen[44] would likely have application and result in a reduction in any sentence imposed. It was further submitted that TQ's preference to enter the Koori Court for any plea to the charges would moderate any sentence.[45]

(10) In light of the above, the probability that any further time in custody would exceed the likely sentence to be imposed.

(11) The fact that stable accommodation had been proposed and was available to TQ, should he be released on bail.

(12) The availability of conditions of bail to ameliorate any unacceptable risk posed by TQ to an acceptable level.

1. Although acknowledging that the majority of TQ's alleged offending took place whilst he was on bail in relation to other charges, it was submitted that save for the failures to answer bail, there had been no substantive offending since December 2024. It was also submitted that TQ's transience and unsettled circumstances have been major barriers to his compliance with bail conditions.
2. In relation to how the availability (or otherwise) of stable accommodation should impact upon consideration of whether or not TQ ought to be granted bail, it was submitted that while the unavailability of stable accommodation for a bail applicant is of relevance, it should not be given undue weight in determining the application.[46] It was also submitted that in any event and by way of distinction from TQ's previous circumstances while on bail, accommodation with a friend had become available to TQ were he to be granted bail.
3. The Intervention Order currently in place against TQ was acknowledged to be a relevant consideration.[47]
4. As to unacceptable risk, it was submitted that many of the matters relevant to establishing a compelling reason justifying an order granting bail to TQ also operated to ameliorate unacceptable risks of the kind contemplated under section 4E(1) of the Bail Act to an acceptable level.
5. Any unacceptable risk alleged in respect of TQ was said to be rendered acceptable by a combination of factors, including those referred to at sub-paragraphs 83(4), (5) and (11) of these reasons above.
6. With respect to the risk of endangerment of the safety or welfare of any person, it was submitted that the decisions by police members to previously grant TQ bail in respect of his alleged offending is an important factor in deciding whether the risk of public endangerment posed by TQ, if granted bail, was unacceptable. It was also submitted that TQ's criminal record did not suggest that he posed an unacceptable risk in this regard.
7. It was conceded that the alleged unacceptable risk of TQ failing to answer bail was more meaningful than an unacceptable risk of endangering the safety or welfare of any other person, given TQ's recent failures to answer bail in August 2024, December 2024 and February 2025. It was submitted, however, that the additional, culturally appropriate supports now available to TQ if granted bail should be viewed by the court as ameliorating any unacceptable risk in this regard to an acceptable level.
8. The following conditions were proposed on behalf of TQ, should bail be granted, namely that he:

(1) Reside as directed by the Court Integrated Services Program or relevant organisation.

(2) Report to Mildura Police Station at a frequency determined by the court.

(3) Abide by any current intervention orders where he is the respondent.

(4) Not use any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(5) Any other condition that the court deemed appropriate.

1. The prosecution conceded at the hearing on 28 February 2025 that it was open to the court to find that a compelling reason existed that justified the grant of bail, however initially opposed TQ's application on the basis that TQ presented an unacceptable risk of endangering the safety or welfare of any person, whether by committing an offence that had that effect or by any other means and of failing to surrender into custody in accordance with the conditions of bail.
2. In regard to the risk of TQ endangering the safety or welfare of any person, the prosecution submitted that TQ's alleged offending constituted erratic and destructive behaviours throughout the Mildura community. In support of this submission, the prosecution noted that TQ's alleged offending included assaulting family members and associates using weapons, setting fire to a property where children were present and stealing an Australian flag and throwing it onto the ground.
3. Further, it was submitted that the court was required to consider the risk of TQ committing family violence, in light of the Intervention Order and the nature of the alleged offending with which TQ has been charged, in particular the Informant Von Tunk Charge and the Informant Fraser Charges.
4. In this regard, while it was conceded that a stable bail address would help mitigate the risk of further offending, it was noted by the prosecution that, in light of the proximity of the proposed accommodation to the residence specified in the Intervention Order, TQ would be in breach of the Intervention Order if he were to consume drugs or alcohol at his proposed residential address. It was further noted that TQ had described his use of methamphetamine as a daily habit, and the use of marijuana every couple of days.
5. The prosecution conceded that it was unlikely that TQ would receive a custodial sentence if he were found guilty of all alleged offending, and consequently any time he spent in custody on remand would exceed any sentence he is likely to receive. The prosecution maintained, however, that the alleged offending was inherently serious.
6. As to the risk of TQ failing to surrender into custody in accordance with the conditions of bail, the prosecution noted that TQ had recently been arrested and released on bail for the same matters, and that if released on bail, he would be released on 7 counts of bail, some of which were for serious family violence offending.
7. The prosecution also noted that the Protected Person, being the victim in respect of the Informant Von Tunk Charges and the Informant Fraser Charges, had been consulted and was supportive of TQ being granted bail.
8. While it was submitted that the risk posed by TQ could not be ameliorated to an acceptable level by the bail conditions proposed on behalf of TQ, the prosecution proposed that the following bail conditions could do so, namely that TQ:

(1) Reside at [address] ("the Residence").

(2) Remain at the Residence between the hours of 9.00pm and 6.00am each day ("the Curfew Hours").

(3) Present himself at the front door of the Residence during the Curfew Hours if and when called upon by a member of Victoria Police to do so.

(4) If within 100 metres of [address], submit to a preliminary breath test or a preliminary oral fluid test if requested by a member of Victoria Police who suspects TQ to be affected by alcohol or a drug within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(5) Abstain from consuming any alcohol or drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), without lawful authorisation under that Act.

(6) Comply with the conditions of the family violence intervention order [reference number] issued by the Mildura Magistrates Court on [date].

(7) Report to the officer in charge of the Mildura Police Station each Monday between the hours of 8.00am - 8.00pm.

(8) Not contact, directly or indirectly, any witness for the prosecution other than the informants and [the Protected Person].

(9) Comply with all lawful conditions imposed by the Court Integrated Services Program.

(10) Comply with all lawful conditions imposed by the Men's Healing and Behaviour Change Program.

1. At the hearing on 28 February 2025, the various supports that would be available to TQ were discussed should he be granted bail. Following those discussions, the prosecution ultimately confirmed that it did not oppose a limited grant of bail to TQ, subject to strict conditions, including that TQ be required to engage with the supports that were submitted to ameliorate the risk posed by TQ, as outlined below.

1. Having considered all the relevant circumstances, including the surrounding circumstances in section 3AAA of the Bail Act and the matters specified in section 3A, I was satisfied at the hearing on 28 February 2025 that a compelling reason existed to justify the grant of bail. As this issue was not in dispute, it suffices to observe that, although the charges against TQ include allegations of family violence offending, a compelling reason was established by the combined weight of several factors.
2. Those factors included his Aboriginality, the intergenerational difficulties he has experienced as a descendent of the Stolen Generation, his background of social and economic disadvantage and the level of support offered by various services including the Court Integrated Services Program, the Dardi Munwurro Men's Healing and Behaviour Change Program, Mallee District Aboriginal Services and the Victorian Aboriginal Legal Service, as well as the fact that TQ was unlikely to be sentenced to a term of imprisonment if found guilty of any or all of the Supreme Court Bail Application Charges. TQ's time on remand if bail were refused was therefore also likely to exceed any term of imprisonment imposed.

1. I was also satisfied that any risk posed by TQ would not be unacceptable if bail were granted for only 1 week on stringent conditions.[48] This was appropriate in the circumstances of this case to allow TQ an opportunity to demonstrate compliance with conditions of bail.
2. The following conditions were ultimately agreed to by TQ and supported by the prosecution at the hearing on 28 February 2025:

(1) Reside at [address] ("the Residence"), unless travelling to, or from, Melbourne for the purposes of attending, or returning from, court.

(2) Not change his place of residence without leave of the court.

(3) Remain at the Residence between the hours of 9.00pm and 6.00am each day ("the Curfew Hours"), unless travelling to, or from, Melbourne for the purposes of attending, or returning from, court.

(4) Present himself at the front door of the Residence during the Curfew Hours if and when called upon by a member of Victoria Police to do so.

(5) Report to the officer in charge of the Mildura Police Station, or her or his nominee, each Monday between the hours of 8.00am and 8.00pm.

(6) If within 100 metres of [address], submit to a preliminary breath test or a preliminary oral fluid test if requested by a member of Victoria Police who suspects the applicant to be affected by alcohol or a drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(7) Not consume alcohol.

(8) Not use or possess any drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act without lawful authorisation under that Act.

(9) Accept all referrals from and comply with all lawful directions imposed by the Court Integrated Services Program, including attending his first Court Integrated Services Program appointment at 11.00am on Monday, 3 March 2025.

(10) Comply with all lawful directions imposed by the Dardi Munwurro Men's Healing and Behaviour Change Program, including attending his first appointment for that program at 12.00 noon on Tuesday, 4 March 2025.

(11) Comply with all lawful directions imposed by Mallee District Aboriginal Services, including attending the Mallee District Aboriginal Services Health Service by no later than Wednesday, 5 March 2025 to make a medical appointment to obtain a mental health care plan.

(12) Subject to [name], Client Services Officer with the Victorian Aboriginal Legal Service, attending the Residence on Saturday, 1 March 2025 or Sunday, 2 March 2025, or both, meet with [name] on that day or days for as long as [name] makes himself available.

(13) Comply with the conditions of the family violence intervention order [reference number] issued by the Magistrates' Court of Victoria at Mildura on [date].

(14) Not have any contact with, or seek to contact, any witness for the prosecution, whether directly or indirectly, other than the informants and [the Protected Person].

(15) Not attend [address].

(16) Not leave the State of Victoria.

(17) Not attend any port, airport or international point of departure.

(18) Surrender any current passport or any interstate or international travel documents in his possession or control to the informants, or their nominees, within 24 hours of the date of these orders.

(19) Not apply for any passport or any interstate or international travel documents or cause, whether directly or indirectly, any other person to do so on his behalf.

(20) Attend the Supreme Court of Victoria at Melbourne at 9.00am on Friday, 7 March 2025 and there surrender himself and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.

1. TQ was warned of the serious consequences if he failed to comply with these conditions. He engaged fully with the court in accepting them and expressed a keenness to use the week to engage in various step directed towards his rehabilitation.

1. Bail was only granted on 28 February 2025 until 9.00am today. TQ again applied for bail based on the evidence tendered at the previous hearing and further evidence adduced today, to which I will refer below.

G. Further evidence concerning TQ's compliance with conditions of bail

1. In advance of the hearing today, a further report by the Court Integrated Services Program was provided to the court on 5 March 2025. The report outlined, amongst other things, that:

(1) TQ met with his Victorian Aboriginal Legal Service Community Engagement Officer for approximately 30 minutes on 2 March 2025.

(2) TQ attended his initial Court Integrated Services Program case management appointment on 3 March 2025 and a subsequent appointment on 5 March 2025. TQ has a further appointment scheduled on 11 March 2025.

(3) TQ attended his first session with the Dardi Munwurro Men's Healing and Behaviour Change Program on 4 March 2025. TQ has a further session scheduled on 11 March 2025.

(4) TQ attended Mallee District Aboriginal Services and signed a consent form for the transfer of his medical records to the Mallee District Aboriginal Services Health Service. Once those records are available, TQ will be able to make an appointment to see a general practitioner there. He has been referred to the Mallee District Aboriginal Services Social Emotional & Wellbeing Team to be allocated a mental health support worker in the meantime.

(5) TQ attended his employment placement service and has requested support to transfer to a new employment placement service. He has also initiated enquiries into securing part time or casual employment independently of employment placement services.

(6) TQ reported that he had abstained from substance use and alcohol consumption since being released from custody on 28 February 2025. He advised that his mental health is a priority for him, that he wants to make positive changes and will continue to engage with the support services available to him.

1. A report by Victoria Police was also filed with the court on 6 March 2025 in relation to the outcome of bail compliance checks conducted by Victoria Police. The report noted that:

(1) TQ had presented at the door of the Residence during curfew hours when a check was conducted.

(2) TQ had reported to Mildura Police Station as required by the conditions of his bail.

(3) There was no information to suggest that TQ had not complied with the conditions of his bail.

1. In circumstances where there has been compliance with the bail conditions for the past week, it was submitted on behalf of TQ that both a compelling reason had been established and that the prosecution had not shown that TQ posed an unacceptable risk.
2. In these circumstances, the prosecution did not oppose the further application for bail on substantially the same conditions to those imposed on 28 February 2025, with the difference that the grant of bail would be made until TQ's next court date rather than being limited to a shorter period of time.
3. Notwithstanding this agreed position between the parties, TQ requested that the conditions of bail include a requirement for him to return before this court for judicial monitoring of his compliance with the conditions of bail.

I. Consideration of application for further grant of bail

1. Having considered all the relevant circumstances, including the surrounding circumstances in section 3AAA of the Bail Act and the matters specified in section 3A, I am again satisfied that a compelling reason exists substantially for the same reasons as previously found on 28 February 2025.
2. In light of TQ's compliance with his conditions of bail during the 1 week period of bail, and the considerable level of support he continues to receive, I am again satisfied that if bail were to continue on largely the same conditions, any unacceptable risk posed by TQ can be reduced to an acceptable level.

1. For the reasons outlined above, TQ's further application for bail will be granted on the following conditions, namely that TQ must:

(1) Reside at [address] ("the Residence"), unless travelling to, or from, Melbourne for the purposes of attending, or returning from, court.

(2) Not change his place of residence without leave of the court.

(3) Remain at the Residence between the hours of 9.00pm and 6.00am each day ("the Curfew Hours"), unless travelling to, or from, Melbourne for the purposes of attending, or returning from, court.

(4) Present himself at the front door of the Residence during the Curfew Hours if and when called upon by a member of Victoria Police to do so.

(5) Report to the officer in charge of the Mildura Police Station, or her or his nominee, each Monday between the hours of 8.00am and 8.00pm.

(6) If within 100 metres of [address], submit to a preliminary breath test or a preliminary oral fluid test if requested by a member of Victoria Police who suspects the applicant to be affected by alcohol or a drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(7) Not consume alcohol.

(8) Not use or possess any drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act without lawful authorisation under that Act.

(9) Accept all referrals from and comply with all lawful directions imposed by the Court Integrated Services Program.

(10) Comply with all lawful directions imposed by the Dardi Munwurro Men's Healing and Behaviour Change Program.

(11) Comply with all lawful directions imposed by Mallee District Aboriginal Services.

(12) Comply with all lawful directions imposed by [name], Client Services Officer with the Victorian Aboriginal Legal Service.

(13) Comply with the conditions of the family violence intervention order [reference number] issued by the Magistrates' Court of Victoria at Mildura on [date].

(14) Not have any contact with, or seek to contact, any witness for the prosecution, whether directly or indirectly, other than the informants and [the Protected Person].

(15) Not attend [address].

(16) Not leave the State of Victoria.

(17) Not attend any port, airport or international point of departure.

(18) Surrender any current passport or any interstate or international travel documents in his possession or control to the informants, or their nominees, within 24 hours of the date of these orders.

(19) Not apply for any passport or any interstate or international travel documents or cause, whether directly or indirectly, any other person to do so on his behalf.

(20) Appear before this court for judicial monitoring to review his compliance with these orders at 9.30am on Friday, 28 March 2025, and any further dates this court appoints during the course of these orders

(21) Attend the Magistrates' Court of Victoria at Mildura at 10.00am on Thursday, 13 March 2025 and there surrender himself and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.

[1] A pseudonym has been used to protect the identity of a person named in an order made under the Family Violence Protection Act and to ensure compliance with s 166 of that Act.

[2] The charge sheet provided to the court referred to the charge of criminal damage by fire (arson) being brought under section 197(1) of the Crimes Act.

[3] Bail Act, s 4E.

[8] Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).

[9] Bail Act, sch 2, item 18.

[10] [2018] VSC 361, [45]-[48] (Beach JA). When Beach JA considered the meaning of "compelling reason" in this context, it was in determining whether there was "compelling reason why [an applicant's] detention in custody is not justified" under a previous iteration of the Bail Act. The test outlined in s 4C(1A) of the current version Bail Act instead requires the court to refuse bail unless satisfied that "a compelling reason exists that justifies the grant of bail". However, in Re Alsulayhim [2018] VSC 570, Beach JA stated that "[w]hile the statutory language is slightly different, the expression 'compelling reason' remains" and as such held that there was "no reason to depart from the analysis or holding in [Re Ceylan] concerning the proper construction of the expression 'compelling reason'": at [28].

[11] See, for example, Re JB [2020] VSC 184, [24] (Kaye JA); Re JM [2019] VSC 156, [56]-[57] (Champion J); Re Alsulayhim [2018] VSC 570, [27]-[28].

[12] [2019] VSCA 214.

[13] Ibid, [43] (Beach, Kaye and Ashley JJA).

[14] Re AC [2022] VSC 370, [72] (Champion J). See also Re Koshani [2019] VSC 678, [6] (Ashley JA).

[15] Bail Act, s 4D(a).

[16] Ibid, s 4E(3)(b).

[17] Ibid, s 5AAA(4)(g).

[18] Pursuant to ibid, s 3, "Aboriginal bail support service" means a bail support service that is provided by an entity that is managed by Aboriginal people or operates for the benefit of Aboriginal people.

[19] Ibid, s 4E(1).

[20] Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).

[21] Bail Act, s 4E(2).

[22] Ibid, ss 4C(3), 4E(3)(a).

[23] See also ibid, s 5AAAA.

[24] As that term is defined in s 4 of the Family Violence Protection Act: see the definition of "recognised DVO" in s 3 of the Bail Act.

[25] Bail Act, ss 4E(1)(a) and 5AAA(1).

[26] Ibid, s 5AAA(2)(a) and (b).

[27] Ibid, s 5AAA(2)(c) and (3).

[28] Re Thorpe [2024] VSC 414, [47].

[29] Victoria, Parliamentary Debates, Legislative Council, 31 August 2023, 2939 (Harriet Shing).

[30] Ibid, 2941, referring to HA v The Queen [2021] VSCA 64, [59] (Maxwell P and Kaye JA); Re Thorpe [2024] VSC 414, [48].

[31] Separate and in addition to the surrounding circumstance of special vulnerability of an accused due to being an Aboriginal person: Bail Act, s 3AAA(1)(h)(i).

[32] Ibid, s 3A(4).

[33] Ibid_,_ s 3A(3).

[34] Ibid, s 3A(5); Re Thorpe [2024] VSC 414, [49].

[35] Victoria, Parliamentary Debates, Legislative Council, 31 August 2023, 2942 (Harriet Shing).

[36] Re Thorpe [2024] VSC 414, [50].

[37] Re Terei [2024] VSC 294, [61] (Incerti J).

[38] Re Thorpe [2024] VSC 414, [51]. The reference to "ordinarily" must be included in such a general statement because, although the imperative to take into account the matters referred to in s 3A is plain, the actual weight to be given in any individual case must be determined according to its own particular facts and circumstances.

[39] Following the March 2024 reforms to the Bail Act, express reference to s 19 of the Charter of Human Rights and Responsibilities Act is made in the notes to section 3A. See also Re GG [2021] VSC 12, [44] (Incerti J); Director of Public Prosecutions v SE [2017] VSC 13, [21] (Bell J).

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

[41] Referring to Re Terei [2024] VSC 294, [65], [85] (Incerti J).

[42] Referring to Re Mclaughlin [2024] VSC 706, [48] (Incerti J).

[43] [2013] HCA 37; (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[44] [2014] VSCA 119 (Redlich and Tate JJA).

[45] Referring to Honeysett v The Queen (2014) 253 CLR 122 (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[46] Referring to Re Marino [2021] VSC 769, [42] (Niall JA, as his Honour then was).

[47] Bail Act, s 3AAA(1)(f).

[48] See Re FT [2024] VSC 158, [51], citing Re KA (No 2) [2022] VSC 363, [12] (Beach JA).