Re Thorpe

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0152

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by Shaquel THORPE

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2024
DATE OF RULING:	8 July 2024
DATE OF REASONS:	15 July 2024
CASE MAY BE CITED AS:	Re Thorpe
MEDIUM NEUTRAL CITATION:	[2024] VSC 414

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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offence alleged to have been committed whilst on bail for another Schedule 2 offence – Applicant identifies as Aboriginal – Requirement to demonstrate exceptional circumstances – Exceptional circumstances demonstrated – Whether unacceptable risk – Stable accommodation – Family support – Availability of culturally appropriate supports and treatment – Risk ameliorated through strict conditions – Bail granted – Bail Act 1977 (Vic), ss 1B, 3A, 3AAA, 4A, 4AA, 4D, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the applicant	S Gillahan	Victorian Aboriginal Legal Service
For the respondent	J Piggott	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

The applicant, Shaquel Thorpe (“Thorpe”), was arrested on 23 November 2023 and charged with the following offences, alleged to have been committed in the early hours of the same day:
(1)Aggravated burglary, contrary to section 77(1) of the Crimes Act 1958 (Vic).
(2)Sexual assault, contrary to section 40(1) of the Crimes Act.
(3)Carrying a controlled weapon without lawful excuse, contrary to section 6(1) of the Control of Weapons Act 1990 (Vic).
(4)Possession of a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(Collectively, “the November 2023 Charges”.)
Thorpe made an application for bail in respect of the November 2023 Charges in the Magistrates’ Court of Victoria at Shepparton the following day. That application was granted.
On 1 May 2024, while on bail in respect of the November 2023 Charges, Thorpe was again arrested and charged with the following offences, alleged to have been committed on 29 April 2024:
(1)Attempt to commit an indictable offence, namely armed robbery, contrary to section 321M of the Crimes Act.
(2)Unlawful assault with a weapon, contrary to section 24(2) of the Summary Offences Act 1966 (Vic).
(3)Assault without lawful excuse, contrary to common law.
(Collectively, “the May 2024 Charges”).[1]
[1]The charge sheet as filed in respect of the May 2024 Charges states that the alleged offending occurred on 1 May 2024. However, the date of 29 April 2024 is provided in both the police summary and informant’s report. The correct date was confirmed to be 29 April 2024 by the informant at the hearing.
Thorpe has been on remand since his arrest in relation to the May 2024 Charges. He has made unsuccessful applications for bail in the Shepparton Magistrates’ Court on 2 May 2024, 31 May 2024 and 27 June 2024. The first 2 of these applications were refused on the basis that, although exceptional circumstances were established, Thorpe would pose an unacceptable risk to the safety or welfare of another person if granted bail. The most recent application was refused on the basis that Thorpe had not demonstrated that any new facts or circumstances had arisen since the previous refusal.[2]
[2]See Bail Act 1977 (Vic), ss 18, 18AA(1)(a).
Thorpe filed a notice of intention to make an application for bail in this court on 28 June 2024. In support of his application, Thorpe relied upon the combined weight of a number of factors said to support the existence of exceptional circumstances 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, Thorpe placed particular weight upon his Aboriginality, his youth and lack of a criminal history, and the availability of culturally appropriate supports and treatment.
The prosecution opposed Thorpe’s application on the basis that exceptional circumstances had not been established and, in any event, Thorpe would present an unacceptable risk of endangering the safety or welfare of another person, whether by committing an offence that has that effect or by any other means if granted bail.
Thorpe’s application for bail was heard on 8 July 2024. At the conclusion of the hearing, orders were made granting Thorpe bail on his own undertaking and subject to certain conditions. At the time of making those orders, I informed the parties that reasons for my decision would be provided in due course. Those reasons are as follows.

B. Background

B.1 Alleged offending

B.1.1 The November 2023 Charges

On 21 November 2023, Thorpe booked a 3 day stay at a motel in Cobram, Victoria. He was checked in later that day by the motel manager.
The motel manager resides with her husband in an apartment attached to the motel. At approximately 7.00pm on 22 November 2023, the motel manager’s husband left for work and she remained at home in their apartment. At around 10.00pm, she undressed and laid in bed, falling asleep soon after.
At 2.03am on 23 November 2023, Thorpe was captured on closed circuit television walking from his room towards the motel manager’s apartment. The footage allegedly shows him stopping abruptly approximately 15 metres from the apartment and waiting while another resident exits their room, before moving closer to the motel manager’s apartment and taking a seat.
The footage then allegedly shows the other resident returning and re-entering his apartment at 2.06am. It is alleged that Thorpe is then shown to immediately stand up and walk directly towards the door of the motel manager’s apartment, open the unlocked door and enter.
It is alleged that the motel manager then awoke to a person moving around in her bed and assumed it to be her husband. She then felt a person place their hand on her buttocks and attempt to lift her leg. Still believing it was her husband, she asked, “what are you doing?”. It is alleged that an unfamiliar male voice replied, “I’ve got money, I just want a root”. Realising it was not her husband, the motel manager quickly stood up from her bed and repeatedly demanded that the man leave her apartment. She then put on a dressing gown and turned on the bedroom light.
The male allegedly exited the bed and the motel manager observed that he was completely naked. As the motel manager walked toward the front door, she was allegedly followed by the man, who started throwing $50 notes at her. It is alleged that as he began getting dressed, the motel manager recognised the man as Thorpe, having checked him into the motel and observed him over the preceding days. Thorpe allegedly told the motel manager that he had been to Bendigo and Shepparton “looking for a root” and asked her not to call the police.
The motel manager then contacted her husband and asked him to return home. It is alleged that Thorpe exited the apartment and returned to his room. When the motel manager’s husband arrived back at the motel, he and a colleague observed Thorpe preparing to leave the motel and intervened. Thorpe was allegedly in possession of half a pair of scissors, which he surrendered to the motel manager’s husband on demand.
Police arrived at the motel at approximately 3.08am. They spoke to Thorpe in his room and seized a plastic zip-lock bag containing approximately 2 grams of cannabis. Photographs of the motel manager’s apartment were taken, showing a $50 note on the floor of the living area, half a pair of scissors matching the other half surrendered by Thorpe on the kitchen bench, a mobile phone on the table in the living room, a pair of socks hanging over a chair near the entry door, and a pair of grey underwear next to the bed in the main bedroom.
Thorpe was arrested at approximately 5.20am and transferred to Wangaratta Police Station, where he was photographed wearing the same clothing as is shown on the closed circuit television footage from the motel.
Thorpe was then cautioned and interviewed. Amongst other things, in his record of interview, Thorpe stated he was intoxicated from an afternoon of drinking and had simply walked into the wrong room. He admitted to undressing and entering the motel manager’s bed, and also admitted to taking a pair of scissors into the motel manager’s apartment, stating he carried them for “self-protection”. He denied touching the motel manager or offering her money, but also stated that he was “that wasted last night, I can’t even really remember”. He also claimed ownership of each of the foreign items police located in the motel manager’s apartment.

B.1.2 The May 2024 Charges

On 29 April 2024 at approximately 1.24am, Kennith Curtis (“Curtis”) attended a service station on Benalla Road in Shepparton. Curtis, who was on shift working as a truck driver, filled his truck with fuel and then entered the service station to pay. As he returned to his truck, he found a male standing by the driver’s door.
It is alleged that the male demanded, “give me your wallet”, and then, “just give me some money”. Curtis noticed the male was holding what appeared to him as a baton out in front of him in his left hand. Curtis, believing the baton would be used against him if he did not act, kicked the male in the chest and overpowered him. The pair allegedly wrestled for a while, with Curtis attempting to take the object from the male. He was unable to do so, and eventually let the male go.
Curtis allegedly watched the male walk away across Benalla Road with the baton, and then Curtis entered the service station where he had a conversation with the attendant. The attendant indicated that he had not seen the altercation, but that the male had come in earlier and tried to purchase cigarettes.
At around 1.30am, Curtis drove to Shepparton Police Station and reported the incident. He provided a signed statement detailing the incident and described the alleged offender as being in his late teens, skinny and Caucasian, wearing black pants and a black Kathmandu-branded jacket.
Closed circuit television footage later provided to police from the service station allegedly depicts Thorpe entering the service station at around 1.18am and unsuccessfully attempting to buy cigarettes. He is shown wearing a black Kathmandu-branded puffer jacket and black pants. He then exits at approximately 1.20am and walks out of view.
The footage then shows Curtis driving into the service station, filling his truck with fuel and going inside to pay at approximately 1.24am. While Curtis is inside, the footage allegedly shows Thorpe returning to view and walking directly to the driver’s side of Curtis’ truck.
The footage then allegedly shows Curtis exiting the service station and returning to his truck at 1.25am, where he is shown encountering Thorpe, who is holding a black metal bar in his left hand. Without descending into the detail, the altercation which ensues, as captured on the footage, is largely consistent with the account provided by Curtis to police in his statement.
Police attended at Thorpe’s home address at 8.25am on 1 May 2024 and executed a search warrant. Thorpe was arrested and cautioned. It is alleged that he confessed to having committed the offence because he “just wanted smokes”. Clothing matching that which Thorpe was allegedly shown to be wearing on closed circuit television was seized from Thorpe’s bedroom, including a black Kathmandu-branded jacket and black pants. Thorpe also allegedly provided police with the exact location where he had discarded the weapon used during the offending, from which location a black metal bar from a set of dumbbell weights was later recovered.
Police subsequently transferred Thorpe to Shepparton Police Station, where he was cautioned and interviewed. DNA[3] samples were obtained from both Thorpe and Curtis for comparison with the Kathmandu-branded jacket seized from Thorpe’s room and the metal bar located by police.
[3]That is, deoxyribonucleic acid.

B.2 Thorpe’s personal circumstances

Thorpe is a 23-year-old Aboriginal man with connections to the Barkindji people of the Darling River and the Torres Strait Islander peoples through his paternal line. He was born on 30 June 2001 in Bendigo and subsequently moved with his family to various locations in regional Victoria, before eventually settling in Cobram.
Thorpe completed schooling up until year 9, but experienced struggles with learning and reports having difficulty with reading and writing. While he has no confirmed diagnosis of any physical or intellectual disability or cognitive impairment, reference was made by Thorpe’s counsel to a possible cognitive or intellectual impairment based on his history and behaviour.
Thorpe has a significant history of trauma and loss, and a childhood marred by violence and abuse. Thorpe’s father has been described as an aggressive and intimidating man, who abused alcohol and was physically abusive towards Thorpe’s mother.[4] When Thorpe was 10 years old, his father was murdered by his cousin. Thorpe’s paternal grandfather, grandmother and aunt have also passed away in his lifetime. Thorpe has reported frequently attending funerals for Aboriginal family members as he was growing up. As a result of these losses, Thorpe is said to have experienced “a profound sense of dislocation and disconnection to his culture”.
[4]Thorpe has reported that there was no abuse directed towards him or any of his siblings.
Thorpe’s relationships with his surviving family members have also been strained at various points in recent years. Thorpe’s mother reported 3 family violence incidents involving Thorpe to Victoria Police between July and November 2023, with Thorpe reportedly displaying “controlling, abusive and aggressive” behaviour towards her on each occasion.
The third of these incidents resulted in an interim family violence intervention order being issued against Thorpe on 15 November 2023. This order named his mother and his youngest sister as protected persons.[5] Though this order presently remains in force, it was varied to a limited order in June 2024 to allow safe contact between Thorpe and his family members, with the only remaining condition on the final order being a prohibition on committing family violence against the protected persons.
[5]The informant gave evidence at the hearing that Thorpe’s youngest sister was included on the intervention order as a child residing in a house where family violence was alleged to be occurring, and not because any family violence was alleged to have been directed towards her. He further stated that it was standard practice for police to include children on intervention orders in this way.
Thorpe’s mother gave evidence at the hearing of this application in relation to the circumstances surrounding these incidents and the intervention order. She stated that Thorpe had always been “a really good kid”, but issues had started to emerge around 2 years ago as his mental health began to decline. The family violence which led to the imposition of the intervention order was described by her as “very, very low level”, involving verbal abuse and threats of violence but never physical intimidation or assault. Her evidence was that she had not made a request for an intervention order and, although she consented to its imposition, she did not understand at the time that its consequences would be as far-reaching as they were. She also described several (unsuccessful) attempts to request or obtain external assistance for Thorpe in relation to these issues and his mental health more generally during this period.
As a result of the imposition of the intervention order, Thorpe left the family home in Cobram shortly before the alleged offending the subject of the November 2023 Charges. He has since experienced housing instability and periods of homelessness. After his arrest in relation to the November 2023 Charges, he was initially bailed to an address in Stud Park, New South Wales. Later, the bail address was changed by consent to an address in Shepparton where Thorpe lived with his sister and her partner’s family. Thorpe’s mother gave evidence that she did not consider this latter bail address to be a good or stable residence for Thorpe, citing issues with family violence and drug abuse.
Despite these struggles, Thorpe’s family has been described as “close-knit and supportive”. His proposed bail address is his family home in Cobram, where he would reside with his mother, brother and youngest sister. Despite initially expressing reservations at the time of Thorpe’s arrest in relation to the May 2024 Charges,[6] Thorpe’s mother is supportive of his application for bail. She gave evidence at the hearing that she did not have any concerns about Thorpe returning to live in the family home provided that appropriate supports were put in place. She stated that she had witnessed a “complete change in his attitude” since the period during which the family violence intervention order was made, and expressed full confidence that Thorpe would abide by his bail conditions and not commit any family violence. She also undertook to the court to immediately notify police if she became aware that Thorpe had breached any condition of a grant of bail.
[6]It is alleged that when police contacted Thorpe’s mother on 1 May 2024 following his arrest, she described Thorpe as “a liability to the community due to his mental health” and further stated that she could not provide support for Thorpe if he were granted bail.
Further, Thorpe’s mother is not working at present and spends most of the day and each night at home. She has consented to engage in family violence case management with Thorpe through Rumbalara Aboriginal Cooperative if he were granted bail, and has expressed a desire and ability to assist Thorpe with transportation to and from appointments. Another sister, with whom Thorpe reports “a particularly close relationship”, has also indicated that she would assist Thorpe with attending any appointments if he were granted bail. Thorpe’s mother also offered a sum of money (which represented her savings) to provide by way of bail guarantee if required by the court.
Thorpe has experienced significant struggles with his mental health and alcohol dependence, particularly since early 2023. He has reported drinking alcohol in increasing quantities since the age of 16, and describes using it as a “coping mechanism”. He has a limited history of illicit drug abuse, but has reported using cannabis on at least a weekly basis on or around the time of his arrest. Despite never having been formally diagnosed with a mental illness, Thorpe has also reported struggling with depression and anxiety in recent months. Multiple practitioners have suggested he exhibits narcissistic traits and may suffer from narcissistic personality disorder. He has an appointment to be assessed by a consultant forensic psychiatrist on 7 October 2024.[7]
[7]The timing of this appointment was not of Thorpe’s choosing, but rather reflects the availability of the consultant forensic psychiatrist.
It appears that at least some of these issues led to an incident requiring police involvement on 16 April 2024. At approximately 8.30pm, police responded to a call from a member of the public reporting a male causing trouble on a residential street in Shepparton, which was proximate to where Thorpe was residing at that time. Upon their arrival, Thorpe was found in possession of a crowbar, was “ranting about the noise of cars” and had reportedly positioned rubbish bins across the road so as to block oncoming traffic. Police negotiated Thorpe to the ground. The steps taken included a “Conducted Energy Device” (more commonly referred to as a “taser”) being “activated”.

Police subsequently transferred Thorpe to the emergency department of Goulburn Valley Health at Shepparton for a mental health assessment. Medical records from this admission state that Thorpe was experiencing paranoid ideation and presenting symptoms of alcohol abuse. The records also indicate that Thorpe’s mother was contacted and expressed concern to treating practitioners as to Thorpe’s history of alcohol abuse, his isolated lifestyle and his “delusional states”. A week later, Thorpe again presented to the emergency department displaying symptoms of alcohol abuse.
Thorpe has not received any treatment for his mental health while in custody. He has expressed an intention to cease using all illicit substances and to seek support for his mental health issues and alcohol dependency if granted bail. He has also provided verbal consent to participate in the court integrated services program and to engage with culturally appropriate supportive services, including both addiction and dependency treatment and family violence case management support through Rumbalara Aboriginal Cooperative.
Thorpe has no criminal history and no outstanding charges. However, he does have a recent history of failing to comply with the conditions of his previous grant of bail, as well as being the subject of a family violence intervention order. In addition to allegedly reoffending while on bail, participation in the court integrated services program was added as a condition of Thorpe’s bail in relation to the November 2023 Charges on 26 March 2024. However, he failed to attend several scheduled appointments. In a psychiatric report dated 2 May 2024 prepared by Forensicare’s mental health advice and response service to assist the Magistrates’ Court in proceedings against Thorpe, concerns were expressed about Thorpe’s attitude towards engaging with supportive services and abiding by his conditions of bail, as well as his apparent lack of remorse in respect of previous breaches and lack of understanding or acceptance of the consequences of his actions. He was reported as stating that he was not interested in participating in a rehabilitation program. The report also indicated that there was no evidence of delusions and no paranoia verbalised.

C. Legal principles

Amongst the May 2024 Charges is an offence listed under Schedule 2 of the Bail Act 1977 (Vic).[8] As Thorpe was on bail for another Schedule 2 offence[9] at the time of his alleged offending, he must demonstrate the existence of exceptional circumstances justifying the grant of bail.[10]
[8]Namely attempted armed robbery: Bail Act, sch 2, items 22(a) and 31.
[9]Namely aggravated burglary: ibid, sch 2, item 22(b).
[10]Ibid, ss 4AA(2)(c)(i), 4A.
The phrase “exceptional circumstances” is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances must be such as to take the case out of the ordinary or norm.[11] Although the threshold is high, it is not an impossible standard to reach. Exceptional circumstances may be established by a combination of matters, even when none of the individual circumstances relied upon is considered exceptional in and of itself.[12]
[11]See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.
[12]Ibid.
If satisfied that exceptional circumstances exist, the court must then determine whether an applicant presents an unacceptable risk of endangering the safety or welfare of any person, whether by committing an offence that has that effect or by any other means, interfering with a witness or otherwise obstructing the course of justice, or failing to surrender into custody in accordance with their bail undertaking.[13] The court must refuse bail if satisfied that there is an unacceptable risk of this kind, notwithstanding that the exceptional circumstances test has been met.[14] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[15]
[13]Bail Act, ss 4D(a), 4E(1).
[14]Ibid, s 4E(1).
[15]Ibid, s 4E(2).
In assessing whether a risk of the kind contemplated under section 4E(1) is an unacceptable risk, the court must consider whether the risk 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.
[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.
In considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[19] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1) of the Bail Act:
[19]Ibid, ss 4A(3), 4E(3)(a).
…
(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
…

(f) whether there is in force—[20]
[20]See also ibid, s 5AAAA.
(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 [domestic violence order] 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
(iv)having a disability, including physical disability, intellectual disability and cognitive impairment;

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

…

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.
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.
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.[21] 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”.[22]
[21]Victoria, Parliamentary Debates, Legislative Council, 31 August 2023, 2939 (Harriet Shing).
[22]Ibid, 2941, referring to HA v The Queen [2021] VSCA 64, [59] (Maxwell P and Kaye JA).
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).[23] 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;[24] 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.[25] 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.[26]
[23]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).
[24]Ibid, s 3A(4).
[25]Ibid, s 3A(3).
[26]Ibid, s 3A(5).
In short, although the requirements of the provision are not intended to be onerous,[27] 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 exceptional circumstances justifying a grant of bail exist, and also whether an applicant poses an unacceptable risk of the kind described under section 4E(1).
[27]Victoria, Parliamentary Debates, Legislative Council, 31 August 2023, 2942 (Harriet Shing).
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 exceptionality or risk in an application for bail made by an Aboriginal person. However, the Aboriginality of an applicant would ordinarily be a “weighty factor”[28] to which serious regard must be given in any application for bail.[29]
[28]Re Terei [2024] VSC 294, [61] (Incerti J).
[29]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.
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).[30] 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.
[30]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).
More generally, in interpreting and applying the Bail Act, including each of the sections outlined above, the court is required to take into account the guiding principles set out in section 1B. These include competing considerations of maximising the safety of the community, and the presumption of innocence and the right to liberty.[31]

D. Submissions

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

D.1 Thorpe’s submissions

On behalf of Thorpe, it was submitted that exceptional circumstances justifying a grant of bail could be established by the combined weight of several factors, including:
(1)His 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. Thorpe’s experiences of trauma and loss and the cultural disconnect and dislocation he has experienced as a result were referred to, as was his background of social and economic disadvantage. Reference was also made to his declining mental health and issues with alcohol, and the availability of culturally appropriate supports through Rumbalara Aboriginal Cooperative if granted bail. Further, it was submitted that the deterrent effect that remand could have on Thorpe’s ability to participate in Koori Court, for which he would be eligible if a plea of guilty were entered in relation to the May 2024 Charges, was another relevant consideration.[32]
(2)His young age.
(3)His lack of any prior criminal history.
(4)His mental health issues and possible cognitive impairment.
(5)Delay. It was submitted that, as the committal in respect of the November 2023 Charges is scheduled for 3 October 2024 and the May 2024 Charges are listed for committal mention on 30 July 2024, Thorpe is facing at least a further 6 months on remand. It was noted that in any event, neither matter would be likely to resolve before a report in relation to Thorpe’s forensic assessment scheduled for 7 October 2024 was made available, which would most likely be at some point in November.
(6)The strength of the prosecution case. Although accepting that the circumstances of the alleged offending are not in issue for the most part, it was submitted that there are triable issues in relation to the prosecution cases for both the November 2023 Charges and the May 2024 Charges, largely surrounding intention.
(7)The objective gravity of the alleged offending. It was submitted that, although serious, the alleged offending sits within the lower range of seriousness for this type of offending. It was also contended that no physical violence was alleged in relation to either the November 2023 Charges or the May 2024 Charges.
(8)The likely sentence to be imposed if he were to be found guilty of the alleged offending. Although conceding that a term of imprisonment would be open if Thorpe were found guilty of the offences with which he is charged, it was submitted that there is a possibility that the time he will spend on remand may ultimately exceed any term of imprisonment. It was also submitted that in light of Thorpe’s personal circumstances and background, the principles in Bugmy v The Queen[33] and R v Verdins[34] would likely have application and result in a reduction in any sentence imposed.
(9)The availability of a bail guarantee.[35]
(10)The availability of strict conditions of bail.
[32]Referring to Re Firebrace [2023] VSC 137, [119]-[120] (Incerti J).
[33](2013) 249 CLR 571.
[34](2007) 16 VR 269.
[35]See par 35 above.
Although acknowledging that Thorpe was on bail in relation to the November 2023 Charges at the time of the alleged offending the subject of the May 2024 Charges, it was submitted that it is of particular importance that this was Thorpe’s first ever grant of bail, and that the seriousness of bail and consequences of non-compliance have now been demonstrated to him.
In relation to Thorpe’s failure to engage with the court integrated services program in contravention of the conditions of his last grant of bail,[36] it was noted that this condition was only imposed 4 months after bail was granted, at which point it was submitted that “the ship had sailed on any particularly good mindset that [Thorpe] had”.[37] It was further submitted that Thorpe would be in a very different position if granted bail now, given that he would be residing at the family home and able to immediately engage in therapeutic supports “with a clear head and a renewed focus”.
[36]See par 40 above.
[37]Referring specifically to the fact that Thorpe had relapsed into drinking and was residing in a negative environment: see pars 33, 37-38 above.
The fact that the motel manager opposes a grant of bail to Thorpe was referred to.[38] However, it was submitted that Thorpe has no reason or need to have any contact with her, and that he would be willing to comply with a condition to not have any contact with her or go within a specified distance of her address, if required. Nevertheless, it was conceded that in a small town such as Cobram, “accidental contact” may be unavoidable.
[38]Bail Act, s 3AAA(1)(j). See further par 70 below.
The family violence intervention order currently in place against Thorpe was also acknowledged to be a relevant consideration,[39] but its now limited form was referred to.[40] Mention was also made of the fact that Thorpe’s mother has previously shown a preparedness to report any unacceptable behaviour on his part to police, and could thus be expected to do the same in the event of any future incident.
[39]Ibid, s 3AAA(1)(f).
[40]See par 31 above.
As to risk, it was submitted that the prosecution had not discharged its evidentiary burden of proving that Thorpe would present an unacceptable risk of the kind contemplated under section 4E(1) of the Bail Act. Any risk alleged in respect of Thorpe was said to be rendered acceptable by a combination of factors, including:
(1)His Aboriginality.
(2)His youth.
(3)His lack of any prior criminal history.
(4)The deterrent effect of Thorpe’s time on remand thus far and his appreciation of the extended period of time in custody that will likely result in the event of non-compliance with bail.
(5)The availability of support and supervision through the court integrated services program.
(6)The availability of culturally appropriate supports through the Rumbalara Aboriginal Cooperative, including both addiction and dependency treatment and family violence case management support.
(7)The likely link between the alleged offending and Thorpe’s alcohol dependency, and the availability of supportive services in the community to address this.
(8)Family support.
(9)The availability of stable accommodation.
(10)The availability of a bail guarantee.
(11)The availability of strict conditions of bail and bail monitoring, if necessary.

As to the final of these points, among the conditions of bail proposed on behalf of Thorpe were requirements to reside at the family home, to accept all referrals from and follow all lawful directions of the court integrated services program, to comply with a curfew condition and to abide by domestic and international travel restrictions. At the hearing, Thorpe’s counsel confirmed that he would also consent to conditions requiring that he regularly report to the Cobram Police Station and refrain from consuming alcohol.
Further, it was submitted that ongoing remand may increase the long-term risk of Thorpe reoffending in the community by denying him access to treatment and family support.

D.2 Prosecution’s submissions

The prosecution submitted that the combination of matters relied upon did not reach the high threshold required to establish exceptional circumstances. Further, even if the court were satisfied of the existence of exceptional circumstances, it was submitted that bail ought to be refused on the basis that Thorpe posed an unacceptable risk of endangering the safety or welfare of another person.
In this regard, it was submitted that the alleged offending was extremely serious, involving “high harm and high impact to the victims”. The maximum penalties for each of the alleged offences were referred to as reflective of the seriousness of the charges Thorpe faces.[41] It was further submitted that the alleged offending, and particularly the subject of the November 2023 Charges, involved serious examples of the relevant offences.
[41]Specifically, 25 years’ imprisonment in respect of aggravated burglary (Crimes Act, s 77(2)); 10 years’ imprisonment in respect of sexual assault (Crimes Act, s 40(2)); 20 years’ imprisonment in respect of attempted armed robbery (Crimes Act, ss 75A(2), 321P(1)(a)); and 2 years’ imprisonment in respect of unlawful assault with a weapon: Summary Offences Act, s 24(2).
In support of this submission, the prosecution noted that the alleged offending on both counts was committed against persons with whom Thorpe had no personal relationship, and was such as to inflict a high level of psychological harm. The submission made on behalf of Thorpe that none of the alleged offending involved physical violence was rejected, with the subject of the November 2023 Charges in particular referred to as “more physically violent” than “a weapon that leaves a cut or a bruise or a broken bone”.
On this basis, exception was also taken to the submission that Thorpe could potentially spend more time on remand than any sentence ultimately imposed. Although conceding that the principles in Bugmy v The Queen[42] would likely apply to any sentence imposed, it was submitted that there was no evidence presently before the court to support the application of the principles in R v Verdins.[43]
[42](2013) 249 CLR 571.
[43](2007) 16 VR 269.
Further, the prosecution case in respect of both matters was submitted to be strong, with both involving partial admissions on Thorpe’s part. As to delay, counsel for the prosecution submitted that proceedings were moving forward “at a cracking pace” in the County Court and no delay was anticipated. Further, it was stated that DNA evidence would not be relied upon[44] and thus no delay would be incurred in waiting for results of any testing.
[44]See par 26 above.
As to Thorpe’s personal circumstances, it was conceded that Thorpe’s Aboriginality, “youngish” age and lack of criminal priors were relevant considerations. However, it was submitted that there was nothing in Thorpe’s history or background that brought the circumstances outside of the ordinary, and that many matters come before the court which involve applicants from a far more disadvantaged background. Further, issue was taken with the submission that Thorpe may be suffering from some form of cognitive impairment, and although it was conceded that “a bit of a question mark” exists over Thorpe’s mental health, the prosecution noted that he had not received any formal diagnosis of a mental health condition and there was a dearth of evidence in this regard.
Specifically in relation to risk, it was submitted that the court should have concern regarding the genuineness of Thorpe’s stated commitment to abide by the conditions of any grant of bail and engage with supportive services. Reference was made to the fact that, in addition to allegedly reoffending while on bail, Thorpe failed to comply with conditions of this earlier grant of bail, including participation in the court integrated services program. Further, it was submitted that various comments made by Thorpe in the psychiatric assessment carried out following his arrest in relation to the May 2024 Charges displayed a lack of insight and judgment, a lack of consideration for his alleged victims and a lack of interest in rehabilitation.[45]
[45]See par 40 above.
Based on this, it was submitted that Thorpe had displayed a “propensity of committing high harm offences with no forethought to the impact on the victims, their families, and the wider community”. Referring to both the May 2024 Charges and the incident on 16 April 2024 which required police intervention and culminated in Thorpe’s admission to hospital,[46] it was submitted that Thorpe had continued to display concerning behaviours and commit further serious offences while on bail and therefore presented an unacceptable risk of reoffending in a way that would endanger the safety and welfare of other persons.
[46]See pars 37-38 above.
Further, the views of the motel manager as to Thorpe’s application for bail were referred to. In light of the fact that Cobram is a small rural town and the proposed bail address is approximately 1 kilometre from her home address, the motel manager has expressed significant concerns for her own welfare and for that of the broader community if Thorpe were granted bail.
Objection was also taken to Thorpe’s reliance on the availability of family support and a stable residence as factors ameliorating any risk associated with a grant of bail. The persisting family violence intervention order was referred to,[47] as well as the fact that Thorpe’s mother previously stated that she was unable to provide him with support.[48] It was submitted that Thorpe’s family would have little influence over his behaviour or compliance with his conditions of bail.

E. Consideration

[47]See par 31 above.

[48]See fn 6 above.

E.1 Exceptional circumstances

In my view, exceptional circumstances justifying a grant of bail are demonstrated by the combined weight of several factors.
First, Thorpe’s youth[49] and lack of any prior criminal history[50] are significant factors weighing in favour of a grant of bail.
[49]Re Chol [2020] VSC 580, [32], [59] (Lasry J); Re Gloury-Hyde [2018] VSC 393, [35] (Priest JA); Re Scott [2011] VSC 674, [15(A)] (T Forrest J); Andreevski v The Queen [2009] VSC 115, [6(3)], [10] (Coghlan J).
[50]Bail Act, s 3AAA(1)(c).
Secondly, Thorpe’s Aboriginality and the special vulnerability[51] and greater risk of harm and trauma he may face in custody as a result are also significant considerations.[52]
[51]Ibid, ss 3AAA(1)(h)(i).
[52]Ibid, s 3A(1)(b).
Thirdly, Thorpe has a significant history of loss, trauma and abuse.[53] Contrary to the prosecution’s submission,[54] Thorpe’s background is far from ordinary. His early childhood was spent in a household afflicted by abuse, family violence and alcohol dependence. The murder of his father by his father’s cousin when Thorpe was 10 years old was undoubtedly an exceptionally distressing and traumatic event.
[53]Ibid, s 3A(1)(d)(i).
[54]See par 67 above.
Fourthly, the death of Thorpe’s father in such tragic circumstances at an early age resulted in the loss of Thorpe’s primary connection to his Aboriginal culture and community. The deaths of several other Aboriginal family members in subsequent years have led Thorpe to experience a sense of cultural dislocation and disconnection.[55]
[55]Bail Act, s 3A(1)(e).
Fifthly, the alleged offending occurred at a time when Thorpe was experiencing homelessness, housing instability and unsuitability, his relationships with much of his immediate family had broken down and his issues with mental health and alcohol dependency were intensifying.
Sixthly, and relatedly, if granted bail, Thorpe will have available to him stable accommodation and the support of his family. He is also willing and able to participate in treatment relating to drug and alcohol dependency and family violence at Rumbalara Aboriginal Cooperative, with the involvement and assistance of his mother and his sister.[56] Conversely, if he were to remain on remand, Thorpe may struggle to access culturally appropriate supports, and may be deterred from seeking to have some of the charges he faces dealt with in Koori Court.
[56]See the observations of Incerti J in Re Terei (No 2) [2024] VSC 352, [22] concerning the importance of appropriate support.
I am satisfied that the combined weight of these factors, when considered in light of all the circumstances of this case including the surrounding circumstances and the considerations set out in section 3A(1)(a) to (c) of the Bail Act, establishes the existence of exceptional circumstances. That said, I will briefly address some of the other issues raised.
While there can be no question that the alleged offending underpinning both the November 2023 Charges and the May 2024 Charges is serious, such that I do not accept Thorpe’s submission that it falls at the lower end of seriousness for the relevant offences, I likewise do not accept the prosecution’s submission that it falls within the highest range. Without minimising the experiences of either of Thorpe’s alleged victims in any way, and remaining cognisant of the fear and trauma that offending of the kind alleged can result in, it is significant that neither of Thorpe’s victims sustained any physical injury. Further, although Thorpe’s actions in arming himself with makeshift weapons in both circumstances is concerning, it is not alleged that either the half pair of scissors or the metal bar were actually used to perpetrate any violence. Indeed, as conceded by the informant at the hearing, there is no evidence that Thorpe even took the scissors into the motel manager’s bedroom.
Further, the psychiatric assessment carried out following Thorpe’s arrest in relation to the May 2024 Charges, and the submission that he displayed a lack of insight and judgment, a lack of consideration for his alleged victims and a lack of interest in rehabilitation, must be viewed in the context in which the assessment was made. This assessment was conducted shortly after Thorpe had again been taken into custody and it was only approximately a month after Thorpe was assessed as experiencing paranoid ideation and presenting symptoms of alcohol abuse. In my view, a certain level of circumspection ought to be attached to the findings made in this assessment until a formal report is produced following further psychiatric assessment in October 2024.
It is neither necessary nor appropriate to comment on the strength of the prosecution case in respect of either the November 2023 Charges and the May 2024 Charges in any detail at this stage, beyond to state that neither case could presently be described as weak. However, I reject the prosecution’s submission that Thorpe’s conduct demonstrates a propensity on his behalf for committing high harm offences with no forethought to the impact on the victims, their families, and the wider community. In addition to the comments made in the previous paragraph about the limited weight that ought to be attached to the assessment conducted in May 2024, the existence of 2 alleged offences of a fundamentally different nature, occurring many months apart, and preceded by a lack of criminal history, does not provide a basis for such a submission.
While the prospect of a term of imprisonment must loom large if Thorpe is found or pleads guilty to the alleged offending, the likely application of the principles in Bugmy v The Queen[57] and potential application of those in R v Verdins[58] may result in a substantial reduction in any sentence imposed.
[57](2013) 249 CLR 571.
[58](2007) 16 VR 269.
With respect to the bail guarantee offered, the circumstances are such that it would have been inappropriate to impose this obligation on a single mother who has other dependents and is currently unemployed. However, it is material that she was willing to offer the bail guarantee when it represented a significant financial commitment on her part.
As to delay, while acknowledging that some delay may be incurred in awaiting the results of a psychiatric assessment of Thorpe, I do not consider that any such delay could at this stage be considered exceptional. That said, it has been taken into account in my overall assessment that exceptional circumstances have been established.

E.2 Unacceptable risk

With respect to risk, the prosecution has failed to establish that any risk that may arise if Thorpe were granted bail would be unacceptable. Of course, every grant of bail carries with it some risk, and that risk is necessarily more pronounced in the case of an applicant, like Thorpe, who is alleged to have committed further offences while on bail and who failed to comply with conditions of his previous grant of bail. However, risk insofar as it relates to Thorpe should be assessed in the context of the marked differences between the circumstances and conditions under which bail was previously granted to him, and those existing and proposed on this application.
After being granted bail in November 2023, Thorpe’s living situation was highly unstable and unsafe, and his family relationships were under great strain. His mental health was declining and he was battling issues with alcohol dependency. He had no access to support for these issues, and engagement with the court integrated services program was only added as a condition of bail 4 months later, at a time when it appears that the situation was already unsatisfactory.[59]
[59]See par 56 above.
The contrast between these circumstances and those surrounding this application is significant. A stable residence in the form of the family home is available to Thorpe, where he will be under the close supervision of his mother much of the time. I place significant weight on the support Thorpe’s mother has expressed for a grant of bail, her desire to assist Thorpe in obtaining support and her belief that time spent on remand has prompted him to seek to turn a corner in his life. She was a forthright witness who demonstrated a strong resolve to do her utmost to ensure Thorpe complied with any conditions imposed if bail were granted.
In addition to the support from his mother and other members of his family, Thorpe has consented to immediate and ongoing participation in the court integrated services program as a condition of bail. Further, Thorpe has expressed the desire and commitment to engage in culturally appropriate supportive services through Rumbalara Aboriginal Cooperative, in order to address his issues with substance dependency and family violence.[60]
[60]See pars 35, 73 above.
While Thorpe’s stated willingness to engage with these supportive services must be viewed with a degree of circumspection in light of his previous failures in this regard,[61] the prospect of Thorpe obtaining treatment and support for his alcohol dependency and mental health issues and addressing his history of family violence in a culturally appropriate community setting is a powerful factor weighing in favour of a grant of bail. Given the clear linkages between the alleged offending and Thorpe’s issues with alcohol and his mental health,[62] an opportunity to meaningfully address these issues may have significant positive impacts on his rehabilitation and longer term risk of reoffending.
[61]See par 40 above.
[62]See par 17 above.
The degree of risk associated with a grant of bail to Thorpe is further mitigated by several other proposed conditions that were not imposed as part of his previous grant of bail. These include that Thorpe must report regularly to the Cobram Police Station, refrain from the consumption of alcohol and any illicit substances and abide by a strict curfew.
While the existence of the family violence intervention order and the views of the motel manager as to a grant of bail are relevant considerations, neither displace my conclusion as to risk. As to the former matter, Thorpe’s mother is fully supportive of a grant of bail, and undertook to the court to immediately contact police in the event of any incident. Further, Thorpe and his mother have both consented to engage in family violence case management. As to the latter matter, while the prospect of “accidental contact” with the motel manager is concerning, the imposition of contact restrictions and a prohibition on attending or going within 100 metres of the motel manager’s residence would bring any risk within an acceptable level.[63]
[63]In light of the small size of Cobram, it would not be feasible to impose a larger exclusion zone.
Taking into account the exceptionality of Thorpe’s circumstances, the conditions that can be put in place to reduce any unacceptable risk associated with a grant of bail to an acceptable level and the overriding responsibility of the court to refrain from contributing to the overrepresentation of Aboriginal peoples in custody without good reason for doing so,[64] Thorpe’s application for bail will be granted.
[64]HA v The Queen [2021] VSCA 64, [59] (Maxwell P and Kaye JA).

F. Conclusion

For the reasons outlined above, I am satisfied of the existence of exceptional circumstances justifying a grant of bail. Further, the prosecution failed to establish that, with the appropriate conditions of bail put in place, Thorpe would present an unacceptable risk of endangering the safety or welfare of another person.
Accordingly, at the conclusion of the hearing, orders were made granting Thorpe bail on his own undertaking and subject to the following conditions:
(1)Reside at [address] (“the Residence”).
(2)Not change his place of residence without leave of the court.
(3)Report to the officer in charge of the Cobram Police Station, or her or his nominee, every Monday, Wednesday and Friday between the hours of 9.00am and 3.00pm.
(4)Not leave the Residence between the hours of 8.00pm and 7.00am each day (“the Curfew Hours”).
(5)Present at the front door of the Residence during the Curfew Hours upon the reasonable request of the informants, [names], or their nominees, being authorised members of Victoria Police.
(6)Not consume alcohol.
(7)Not use or possess any drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(8)Not leave the State of Victoria.
(9)Not attend any port, airport or international point of departure.
(10)Surrender any current passport or any interstate or international travel documents in his possession or control to the informant or his nominee within 24 hours of the date of these orders.
(11)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.
(12)Not have any contact with, or seek to contact, any witnesses for the prosecution, whether directly or indirectly, other than the informants.
(13)Not attend or go within 100 metres of the [motel address].
(14)Accept all referrals from and comply with all lawful directions of the court integrated services program.
(15)Engage in addiction and dependency treatment and family violence case management support at Rumbalara Aboriginal Cooperative.
(16)Attend the Magistrates’ Court of Victoria at Shepparton at 10.00am on 30 July 2024 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.
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[2024] VSC 414

8 July 2024