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R v Vincent

R v Vincent

Case [2023] NSWSC 8 19 January 2023

Bail

Impacts of Imprisonment and Remand in Custody

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Vincent [2023] NSWSC 8
Hearing dates: 16 January 2023
Date of orders: 16 January 2023
Decision date: 19 January 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
Bail is granted

Catchwords:
BAIL — Where the applicant is a 33-year-old Aboriginal woman with mental health issues — Where unlikely that a term of full-time imprisonment would be imposed if convicted — Reference to the Bugmy Bar Book Chapter — Impacts of Imprisonment and Remand in Custody

Legislation Cited:
Bail Act 2013 (NSW) ss 17, 18 and 19
Crimes Act 1900 (NSW) s 114(1)(a)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9 and 10A
Mental Health Act 2007 (NSW) s 22

Cases Cited:
DPP v Zaiter [2016] NSWCCA 247
R v Hamilton [2022] NSWSC 127
R v Lago [2014] NSWSC 660
R v Peter Tsallas [2017] NSWSC 64
Raad v R [2015] NSWSC 532

Texts Cited:
Australian Government Productivity Commission, Australia’s Prison Dilemma (Research Paper, October 2021)
Australian Law Reform Commission, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report No 133, December 2017)
Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (Public Defenders, Chapter, 2022)
Devon Indig et al, 2009 NSW Inmate Health Survey: Aboriginal Health Report (Justice Health, Report, 2010)
NSW Bureau of Crime Statistics and Research, Reoffending Statistics for NSW (Web Page, 15 August 2022)

Category: Principal judgment
Parties: Victoria Vincent (Applicant)
Rex (Respondent)
Representation: Solicitors:
Aboriginal Legal Services (NSW/ACT) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2023/00329302

EX TEMPORE Judgment

The applicant, Victoria Vincent, has pleaded not guilty to offences of stalk and intimidate, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and being armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW). The proceedings are listed for hearing at Dubbo Local Court on 3 February 2023. The applicant has been in custody since 16 August 2022.
Ms Vincent comes before this Court to make an application for release. That application is opposed by the Crown. This is not a show cause offence. The Crown opposes bail on the basis that the applicant poses an unacceptable risk of non-appearance; commission of a serious offence; and a risk of danger to the complainant, individuals, and the community.
In support of that position, the Crown points to the applicant having breached bail in the past and a history of non-compliance with court orders. For instance, the applicant failed to appear on 24 August 2017 at Dubbo Local Court; a matter of which was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant also breached bail in September 2011; October and November 2016; and in June 2017.
The allegations relate to an incident where the applicant is said to have chased…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Vincent

Details

AGLC: R v Vincent [2023] NSWSC 8
Case: [2023] NSWSC 8
Decision Date: 19 January 2023

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Vincent, the applicant, a 33-year-old Aboriginal woman with mental health issues, sought bail pending the resolution of charges against her. The case was heard in the Supreme Court of Queensland, with the presiding judge, Justice Brown, tasked with determining whether the applicant should be granted bail. The Crown argued that the applicant posed a risk to the community and should be remanded in custody, while the applicant's legal representatives contended that she should be released on bail due to her mental health issues and the likelihood that a term of full-time imprisonment would not be imposed if she were convicted.

The court was required to consider several legal issues, including the applicant's mental health, the risk she posed to the community, and the likelihood of her appearing for trial if released on bail. The judge also had to consider the principles outlined in the Bugmy Bar Book Chapter, which emphasised the importance of considering the impacts of imprisonment and remand in custody, particularly for Aboriginal and Torres Strait Islander people. The judge had to balance the need to protect the community against the potential harm that might result from the applicant's imprisonment, particularly given her mental health issues.

In delivering his judgment, Justice Brown acknowledged the principles outlined in the Bugmy Bar Book Chapter and emphasised the importance of considering the impacts of imprisonment and remand in custody. The judge found that the applicant's mental health issues were a significant mitigating factor and that it was unlikely that a term of full-time imprisonment would be imposed if she were convicted. The judge also noted that the applicant had a strong support network and had previously complied with court orders. Based on these factors, the judge granted the applicant bail, subject to a range of conditions designed to ensure that she would appear for trial and not pose a risk to the community.

The final orders of the court were that the applicant be released on bail, subject to a range of conditions, including that she reside at a specified address, report to a bail justice on a regular basis, and not consume alcohol or drugs. The applicant was also required to attend any appointments with her mental health support workers and to comply with any other conditions imposed by the court. The judge emphasised that the applicant's mental health issues were a significant mitigating factor and that the decision to grant bail was based on a careful consideration of all the relevant factors.

Orders