JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2020
DATE OF JUDGMENT:	23 April 2020
CASE MAY BE CITED AS:	Thomas v Kitching
MEDIUM NEUTRAL CITATION:	[2020] VSC 206

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CRIMINAL LAW — Application for bail — Aboriginal woman, aged 44, charged with burglary, dishonesty offences, assaults and others — Applicant must meet “exceptional circumstances” threshold because charged with “Schedule 2 offences” (viz, offences against Bail Act 1977 (Vic)) during period of community correction order (“CCO”) — Bail refused twice by Magistrates’ Court — Over two months since arrest — Long criminal record and history of illicit drug use, but never imprisoned — Six-year period of abstinence until last two years — Not provided prescribed anti-depressant and anti-psychotic medications for first seven weeks in custody — Mental health deteriorating in custody — Suffering from untreated cervical bleeding and lump in breast — COVID-19-related delays mean, if ultimately convicted but not bailed, any resulting prison sentence likely to exceed period of custody imposed — Whether exceptional circumstances — Whether “unacceptable risk” of offending on bail — Bail not opposed by respondent — Bail granted on own undertaking with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Prior	Law & Advocacy Centre for Women
For the Respondents	Mr S Payne	Anthony Albore, Victoria Police

HIS HONOUR:

Overview

Felicia Thomas[1] is a 44-year-old Aboriginal woman from Shepparton. She has an extensive criminal history for a range of offences. On 13 February 2020, Ms Thomas was arrested and charged with burglary, assaults, and dishonesty, bail and other offences. Her applications for bail in the Magistrates’ Court on 17 February 2020, and again on 2 April 2020, were refused. She now applies to this Court for bail.
[1] Ms Thomas is also known as Felicia Scott.

In order for her application to be granted, Ms Thomas must satisfy the Court that there are exceptional circumstances justifying her release on bail.[2] Further, the respondent[3] must fail to satisfy the Court that there is an unacceptable risk that, if released, Ms Thomas would (for example) commit an offence while on bail.[4] It is submitted on behalf of Ms Thomas that those issues should be decided in her favour and that bail should be granted on her own undertaking, with conditions.
[2] See s 4A of the Bail Act 1977 (Vic).
[3] While there are two police informants, I shall refer to the respondent in the singular in these reasons.
[4] See ss 4A(4), 4D and 4E of the Bail Act 1977 (Vic).

The respondent does not oppose bail. Indeed, it is accepted that, on the material in the affidavit of Ms Thomas’s solicitor, it is open to find that there are exceptional circumstances justifying a grant of bail. The respondent also…

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 Thomas v Kitching

Details

AGLC: Thomas v Kitching [2020] VSC 206
Case: [2020] VSC 206
Decision Date: 23 April 2020

CaseChat Overview and Summary

The applicant, Ms Thomas, was charged with a range of offences including burglary, dishonesty offences, and assaults. The matter was heard in the County Court of Victoria. Ms Thomas had been remanded in custody since her arrest over two months prior, following two unsuccessful bail applications in the Magistrates’ Court. The legal issues before the County Court were whether the applicant met the threshold for being granted bail, given she was charged with offences classified as "Schedule 2 offences" under the Bail Act 1977 (Vic) and was already serving a community correction order (CCO). Furthermore, the court needed to determine if there was an unacceptable risk of her reoffending if granted bail and whether there were exceptional circumstances warranting bail.

The County Court considered the applicant’s long criminal history and substance abuse issues, as well as her six-year period of abstinence from illicit drugs before relapsing in the last two years. The court also noted the applicant's mental health, which had deteriorated in custody, particularly due to the delay in receiving prescribed medications and the impact of untreated cervical bleeding and a lump in her breast. Additionally, the court acknowledged that any resulting prison sentence might exceed the period of her current custody due to COVID-19-related delays. Despite the significant risk factors, the court found that the exceptional circumstances, including the applicant’s deteriorating mental health and medical conditions, outweighed the risk of reoffending. Consequently, the court granted bail on the applicant’s own undertaking with specified conditions.

No orders were made in relation to the respondent, as the application was unopposed. The court’s decision hinged on the exceptional nature of Ms Thomas’s circumstances, particularly her health and mental state, and the potential for a disproportionately lengthy sentence if she were to be convicted and remain in custody.

Orders