Thomas v Kitching
[2020] VSC 206
•23 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 0072
IN THE MATTER OF an application for bail by Felicia Thomas
Between:
| FELICIA THOMAS | Applicant |
| -and- | |
| S/C ALEXANDRIA KITCHING & ANOR | Respondents |
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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 accepts that any risk can be sufficiently ameliorated by the imposition of particular bail conditions.
In my view, the parties’ submissions and concessions should be accepted.
On a daily basis since Ms Thomas went into custody, the COVID-19 pandemic has changed the world in numerous and profound ways. Like almost every other institution, the criminal justice system of this State is not immune from the impact of the pandemic. Among the many changes is increased hardship for all prisoners, particularly because of the suspension of personal visits and rehabilitative programmes in the last month, as well as the feelings of uncertainty and helplessness that the pandemic engenders. Another change is that the delays in hearing many matters — especially contested cases — have extended substantially, or have even been rendered indeterminate in some cases.
Given concerns about her physical health and her precarious mental state, and the fact that the delay in hearing her case may well result in her serving more time in custody than the duration of any prison sentence likely to be imposed if she is convicted on all charges, as well as the respondent’s concessions and a number of other factors in her favour, I am satisfied that Ms Thomas has demonstrated exceptional circumstances justifying her release on bail.
While I am also satisfied that, given her past history, there is a risk that Ms Thomas will commit an offence while on bail if released, in all the circumstances, including the particular conditions of bail proposed by the respondent, I am not satisfied that that risk is unacceptable.
Accordingly, I propose to release Ms Thomas on bail with conditions of the kind proposed.
My more detailed reasons for those conclusions and proposed orders follow.
Summary of alleged offending and bail history
I turn first to a summary of the alleged offending.
Assault (28 May 2019)[5]
[5] Contrary to the Summary Offences Act 1966 (Vic), s 23.
At about 2:00 p.m. on 28 May 2019, Ms Thomas was sitting in the gaming area of the Shepparton Club. A supervisor asked Ms Thomas to leave, as she had a self-exclusion order in place. Ms Thomas refused to leave and became verbally abusive, whereupon the supervisor sought assistance from her duty manager Wayne Sutton. Ms Thomas collected her money and walked towards the exit, but was verbally abusive towards Mr Sutton. She said, “You’re a big cunt and stick this up your arse,” after which she spat in his face. Mr Sutton tried to grab Ms Thomas, but she broke free and left.
When interviewed by police, Ms Thomas admitted the offence and said she wished to apologise to Mr Sutton. She said that she is an ice user and that it affects her.
Ms Thomas was released. She was charged on summons by Constable Warren Funston on 8 October 2019.
Theft (16 September 2019)[6]
[6] Contrary to the Crimes Act 1958 (Vic), s 74.
On 16 September 2019, Ms Thomas jumped a fence into the yard of a home in Shepparton and hid behind a vehicle. When confronted by the occupant, Ms Thomas said she was looking for a ball. She then left on foot carrying a shopping bag containing Christmas lights belonging to the occupant.
When arrested on 16 December 2019, Ms Thomas admitted the incident. She was charged with theft by Senior Constable Alexandria Kitching and bailed to appear at Shepparton Magistrates’ Court on 30 March 2020. Her bail conditions included a curfew.
Assault (9 January 2020)[7]
[7] Contrary to the Summary Offences Act 1966 (Vic), s 23.
At about 9:00 p.m. on 9 January 2020, Ms Thomas went to her former partner Brett Hamilton’s house and asked him for money and cigarettes. After a disagreement, Ms Thomas hit Mr Hamilton in the face with an icy pole.
Burglary, theft, handling, deception, offending whilst on bail (17-22 January 2020)[8]
[8] Contrary to the Crimes Act 1958 (Vic), ss 74, 76, 81 and 88; and the Bail Act 1977 (Vic), s 30B.
On 18 January 2020, Ms Thomas went to Cash Converters in Shepparton and pawned pieces of jewellery that had been stolen recently from a home in Daldy Crescent.
On 19 January, an occupant of a home in Hillier Street saw Ms Thomas jump over the fence into her back yard, which adjoins the home in Daldy Crescent. Ms Thomas told the occupant she was being chased and continued jumping fences.
The occupant of the house in Daldy Crescent was away from those premises between 17 and 19 January 2020. Police allege that Ms Thomas entered that house more than once over that period and stole items from within valued at over $7,000.
On 22 January 2020, police discovered stolen power tools and a Medicare card belonging to another at Ms Thomas’s home address.
Assault (1 February 2020)[9]
[9] Contrary to the Summary Offences Act 1966 (Vic), s 23.
At about 11:10 p.m. on 1 February 2020, Ms Thomas went to her former partner Mr Hamilton’s house uninvited. She threw rocks at the wall. Mr Hamilton asked her to leave, but she refused. Ms Thomas hit, scratched and bit Mr Hamilton. He called police, who photographed scratches to his arms and stomach. Ms Thomas left before police arrived.
Shoplifting (6 February 2020)
At about 4:15 p.m. on 6 February 2020, Ms Thomas took four pairs of men’s shorts from a Rebel Sport shop in Shepparton without paying.
(Curiously, while this incident forms part of the summary of allegations put against Ms Thomas, police have not charged her with any offence but have indicated that they may do so at a later stage.)
State false name and breach bail curfew (13 February 2020)[10]
[10] Contrary to the Crimes Act 1958 (Vic), s 456A(3)(b); and the Bail Act 1977 (Vic), s 30A.
At about 3:30 a.m. on 13 February 2020, a police officer saw Ms Thomas in Stewart Street, Shepparton. He was aware that she was wanted in relation to outstanding matters. When approached, Ms Thomas gave police a false name — ‘Lisa Murray’ (which is her sister’s name) — and then took off on foot. She was apprehended a short while later.
Interview, charges and remand
When interviewed, Ms Thomas denied the foregoing allegations. She was charged by S/C Kitching with a total of twelve offences and remanded in custody.
Bail refused (17 February and 2 April 2020)
On 17 February 2020, Ms Thomas applied for bail at Shepparton Magistrates’ Court. The magistrate was not satisfied that exceptional circumstances had been shown, and bail was refused. It appears that her bail on the theft charge of 16 December 2019 was also revoked.[11]
[11] See s 18AE of the Bail Act 1977 (Vic).
On 2 April 2020, Ms Thomas made a further application for bail. The same magistrate refused the application, as she was not satisfied that new facts and circumstances were established.
Next mention of foregoing matters
The foregoing matters (bar one) are listed to return to Shepparton Magistrates’ Court on 28 April 2020.
The alleged assault on 28 May 2019 returns on 5 May 2020. Ms Thomas was charged with that offence on summons. A warrant was issued on 24 January 2020 and executed on the day of her arrest on 13 February 2020.
Outstanding breach of CCO[12]
[12] See s 83AD of the Sentencing Act 1991 (Vic).
Also on 13 February 2020, Ms Thomas was charged, on summons, with contravening a community correction order (“CCO”) that had been imposed on her initially on 18 January 2019, and varied on 9 December 2019. That order was originally imposed for various offences, including contravening a family violence intervention order, contravening a conduct condition of bail, wilful damage and resisting police.
This matter is listed to return to Shepparton Magistrates’ Court on 5 May 2020.[13]
[13] There does not appear to have been any order converting the summons for this charge into a remand.
Ms Thomas’s background
Before turning to the parties’ submissions in more detail, I shall summarise Ms Thomas’s background and personal circumstances. These are set out in the affidavit of her solicitor Ms McPhail, none of which is disputed by the respondent.
Ms Thomas has an extensive criminal history spanning the last 25 years, albeit with a substantial break between 2013 and 2019, which I shall address shortly. She has prior convictions or findings of guilt for numerous offences, including theft; using indecent, insulting or threatening language; shoplifting; wilful and criminal damage; assaults; resisting police; bail offences; driving offences; cultivating cannabis; possessing methamphetamine; breaching family violence intervention orders; and breaching a suspended sentence and non-custodial orders. She has received undertakings, fines, a suspended sentence and CCOs, but never an immediate prison sentence.
Ms Thomas was raised in Shepparton, but attended numerous different schools around the State. Sadly, her parents were alcoholics and she witnessed extensive family violence as she was growing up. She left school in Year 9 as a result of disruptions at home and the frequent violence. She also began using illicit drugs as a teenager.
In addition to her sister, Ms Thomas had two brothers. She was close to her younger brother, for whom she took on a caring role. Sadly, however, he died as a teenager, when she was 21.
At the age of 16, Ms Thomas commenced a relationship with a man who would become the father of two of her three children. They separated when she was 28.
Ms Thomas was then involved in a series of relationships that were marred by family violence and drug use.
In March 2013, Ms Thomas attended a residential rehabilitation programme. While she became abstinent from drug use, she also lost the custody of all three of her children.
Over the next five or six years, Ms Thomas remained drug-free. She attended a community church. She also completed a certificate in hairdressing and, ultimately, set up a mobile hairdressing business. The break in her criminal history (between late-2013 to early-2019) reflects this golden period of rehabilitation.
In 2017, she commenced a relationship with Mr Hamilton. Sadly, the relationship was characterised by extensive family violence, and she eventually fell back into drug use. (That said, it will be seen that there were numerous occasions on which Mr Hamilton complained to police about Ms Thomas being violent towards him.) The father of two of Ms Thomas’s children also died during this period.
While in custody, Ms Thomas has gained some insight into her experience of family violence. She has engaged in a programme (“Out of the Dark”) directed at that particular problem, as well as with Alcoholics Anonymous.
Over the years, Ms Thomas has been diagnosed with and treated for depression, anxiety and post-traumatic stress disorder (“PTSD”). She has been medicated when in the community, including with anti-depressants and the anti-psychotic Seroquel.
Disappointingly, despite the express directions made by the magistrate at the first bail application on 17 February 2020, Ms Thomas did not receive that medication while in custody until 2 April 2020 — which was the day of her second application for bail, some seven weeks into her remand.
Not surprisingly, Ms Thomas reports a decline in her mental health in custody. She has developed anxiety symptoms, including claustrophobia and rather disturbing bouts of excessive washing.
Ms Thomas also reports that she has a cervical cyst that is currently bleeding. She is still awaiting the results of a pap smear test conducted nearly three weeks ago.
Ms Thomas has had a lump in her right breast for some time, which troubles her. Also of concern is that she reports she has received no treatment for that complaint while in custody.
Ms Thomas suffered injuries as a result of an assault prior to her going into custody. These injuries cause her ongoing pain for which, again, she has received no treatment either.
Ms Thomas has the ongoing support of her mother, with whom she is able to live in Shepparton. If released on bail, Ms Thomas would live with and care for her mother, who has diabetes and a heart problem, and is finding things particularly difficult during the COVID-19 pandemic.
On 31 March 2020, just prior to her previous bail application, Ms Thomas was assessed as suitable to participate in the Court Integrated Services Programme (“CISP”) Remand Outreach Programme (“CROP”). In (reasonable) anticipation of a grant of bail, that organisation made referrals to Primary Care Connect for family violence counselling and to Rumbalara Aboriginal Co-operative (“Rumbalara”) for intake and assessment for alcohol and other drugs (“AOD”) services, and also an appointment with a general practitioner. In addition, Ms Thomas engaged with a forensic case worker from the Australian Community Support Organisation (“ACSO”) involved in the Restart Programme, who was planning to assist her to establish supports in the community.
Yesterday, an updated report was provided by Fiona Devlin, who is an Assessment and Referral Practitioner with CROP. In her report, Ms Devlin advised that ongoing management by CISP is no longer required, as immediate supports and referrals have already been arranged to assist Ms Thomas upon her release, if granted bail. Those arrangements include the following:
· an appointment with Primary Care Connect tomorrow, Friday 24 April 2020, at 1:00 p.m. for counselling and family violence support;
· an appointment with Rumbalara AOD services for an assessment by telephone on Monday 29 April 2020 at 11:00 a.m.;
· an appointment with a general practitioner at Rumbalara’s Medical Clinic on Wednesday 29 April 2020 at 11:40 a.m. for a physical and mental health review; and
· support from Bronte McDonald, a forensic case worker with ACSO’s Restart Programme, which will involve (what is described as) “assertive outreach” for three months post-release.
The Court has also received reports from Primary Care Connect, Rumbalara and ACSO confirming those appointments and arrangements.
Exceptional circumstances and unacceptable risk
As I indicated earlier, the law governing this application is that bail must be refused unless Ms Thomas satisfies the Court that exceptional circumstances exist that justify the grant of bail.[14] This is because Ms Thomas is alleged to have committed a “Schedule 2 offence” (here, any of the offences against the Bail Act 1977 (Vic)) during the period of a CCO imposed for any Schedule 2 offence (here, for example, contravening a family violence intervention order).[15]
[14] See s 4A(1A) of the Bail Act 1977 (Vic).
[15] See s 4AA(2)(c)(iv) of the Bail Act 1977 (Vic).
The Bail Act also provides that, even where exceptional circumstances are established, the application still must be refused if the Court is satisfied that, were Ms Thomas released, there would be an unacceptable risk that, while on bail, she would do any of the things listed in s 4E(1)(a), which include endangering the safety or welfare of any person or committing an offence while on bail.[16]
[16] See ss 4D(1)(a) and 4E(1)(a)(ii) and (b) of the Bail Act 1977 (Vic).
Ms Thomas’s submissions
I turn now to the parties’ submissions.
Ms Prior, who appeared for Ms Thomas, submitted that there were several interrelated matters[17] that combined to establish the necessary exceptional circumstances to justify a grant of bail and, when coupled with proposed conditions of bail, showed that any risk of offending or the like would not be unacceptable.
Strength of prosecution case and level of alleged offending
[17] As for the “surrounding circumstances” relevant to bail, see s 3AAA of the Bail Act 1977 (Vic).
First, while it was accepted that pleas of guilty would be entered to some charges, others were disputed. Further, of those charges disputed, it was submitted that there were weaknesses in the prosecution case or features of the allegations that showed the alleged offences were comparatively minor.
For example, the alleged assault of Mr Hamilton with an icy police is disputed. Even if Ms Thomas were found guilty of that offence, it is difficult to imagine that a prison sentence would result from piffing an icy pole at a man with an alleged history of serious domestic violence.
As for the alleged assault on Mr Hamilton on 1 February 2020, it was said that Ms Thomas instructs that she acted in self-defence.
As for the alleged dishonesty offences, several are alternatives. Police have already accepted that a number of charges would not proceed. Further, counsel submitted that there remains a lack of evidence and a factual dispute in relation to some of the charges.
The charge of stating a false name is not disputed, but carries only a fine.[18]
[18] See Crimes Act 1958 (Vic), s 456AA(3)(b).
While it was said that the breach of bail curfew was not in issue, Ms Thomas instructs that she was not aware that she was on bail at that time.
The theft charge concerning the Christmas decorations and the breach of CCO are listed for pleas of guilty.
The assault by spitting at the duty manager at the gaming venue was admitted by Ms Thomas. She was drug-affected and apologetic at the time, and remains sorry for her behaviour.
Delays resulting from COVID-19 pandemic
At the time of Ms Thomas’s arrest, all contested hearings in the Magistrates’ Court were to be vacated and listed on 15 June 2020 for mention. If not bailed in the meantime, by that stage, Ms Thomas will have been in custody for over four months, and a contested hearing still would have been a good way off from there.
Since her arrest, the Magistrates’ Court has issued a practice direction that suggests that any matters that do not proceed as a plea of guilty will suffer an even further delay.
In counsel’s submission, there is a real risk that, without bail, even if Ms Thomas were convicted of all outstanding matters, the likely delays are such that she would end up spending more time in custody than the total length any prison sentence that might be imposed upon her.
Additional hardship of custody resulting from COVID-19 pandemic
Counsel submitted that the foregoing point is made all the stronger when regard is also had to the particular hardship that Ms Thomas has endured, and would be likely to continue to endure, were she to remain in custody.
Ms Thomas is already finding custody very difficult given her concerns about her physical and mental health. But the burden of custody and those afflictions is likely to be all the greater for Ms Thomas as a result of the pandemic-induced changes to prison conditions, including the suspension of personal visits and rehabilitative programmes in the last month or so, as well as the uncertainty and increased feelings of helplessness that any prisoner would experience in the present environment.
Aboriginality
Ms Prior also pointed to s 3A of the Bail Act, which provides that:
In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including—
(a)the person’s cultural background, including the person’s ties to extended family or place; and
(b)any other relevant cultural issue or obligation.
Ms Prior also referred to the recent remarks of Kaye JA in Re Kennedy, where his Honour referred to s 3A and said this:[19]
[19] Re Kennedy [2020] VSC 187 at [6].
[6] … As an Aboriginal man, the applicant belongs to a particularly vulnerable section of the community, who are over-represented in the criminal justice system, and who also have poorer health outcomes than non-Aboriginal persons. In that connection, while he is in custody, the applicant may be at greater risk of serious infection from the COVID-19 virus than otherwise.
…
If the applicant is released on bail, he has available to him culturally appropriate assistance and treatment through the Rumbalara Aboriginal Co-operative. In addition, he has accommodation available to him, as he will be residing with his mother in her home in Mooroopna.
Counsel submitted that those remarks were equally applicable in the present case. This has been Ms Thomas’s first time in custody and, in Ms Prior’s submission, her Aboriginality makes all the more relevant the hardship she is suffering. As was also pointed out in the affidavit material, Ms Thomas “figures in the statistical over-representation of Aboriginal women incarcerated as victims of family violence”.
Conditions of bail
Counsel for Ms Thomas accepts that the conditions proposed by the respondent are appropriate and would ameliorate any risk of offending while on bail to a level that was not unacceptable. Indeed, Ms McPhail had proposed very similar conditions in her quite detailed and helpful affidavit.
Supports in place
Counsel submitted that the supports in place for Ms Thomas upon release also go to both exceptional circumstances and the amelioration of any risk of offending while on bail.
Further, Ms Thomas will have particular motivations upon release that, hopefully, will drive her towards rehabilitation. They are, first, to be in a fit state to care for her mother in these unprecedented times and, secondly, to avoid, again, falling into the spiral of drug and alcohol abuse and offending in which she found herself in the last year or two.
Previous history of rehabilitation
Counsel submitted that, while her long history of illicit drug use and criminal offending counts against her, Ms Thomas’s five-to-six-year period of abstinence from drugs — and offending — shows that she is capable of the type of rehabilitation necessary.
The salutary effect of incarceration
In her oral submissions this morning, Ms Prior also conveyed her instructions about the salutary effect that being remanded in custody has had on Ms Thomas. I accept that, having experienced the rigours of remand in prison for the last ten weeks, not only will Ms Thomas have detoxified, but she will also have had an experience that she would be likely to be determined to avoid repeating in the future.
Respondent’s submissions
I turn now to the submissions made on behalf of the respondent.
In what were also very helpful written submissions and a detailed affidavit filed ahead of the hearing, Mr Payne, who appeared for the respondent, and Mr Albore, a solicitor with Victoria Police, both foreshadowed that the respondent would be conceding that it is open to find exceptional circumstances and that there is no unacceptable risk that Ms Thomas would engage in the type of behaviour described in s 4E(1)(a) of the Bail Act, particularly if certain bail conditions are imposed.
Mr Payne confirmed that stance in his oral submission this morning.
In his written submissions, Mr Payne referred in some detail to several of the recent decisions of this Court concerning the COVID-19 pandemic.[20]
[20]Re Broes [2020] VSC 128 (Lasry J); Re Lado [2020] VSC 132 (Tinney J); Re McCann [2020] VSC 138 (Lasry J); Re Tong [2020] VSC 141 (Lasry J)
He accepted that, given the current state of the COVID-19 pandemic and its effect on the listing of contested hearings, it is uncertain how long Ms Thomas may have to wait for her matters to be finalised.
Mr Payne also submitted that, notwithstanding the extent of Ms Thomas’s prior criminal history, having regard to the nature of the alleged offending and her demonstrated ability to rehabilitate herself once drug-free, “it is unlikely that a custodial sentence will be imposed even if all matters are proven”. In his submission, the circumstances of the alleged offending and her prior history of drug use “would render a partially therapeutic disposition in the form of a [CCO] a more likely outcome”.
Mr Payne also pointed out that, given s 5AAAA(1) of the Bail Act, the Court must inquire of the respondent whether there is in force a family violence intervention order against the applicant. Section 5AAA(2)(c) also provides that (subject to satisfaction that a different condition will better protect an alleged victim of an offence with which the applicant for bail is charged or a “protected person” within the meaning of the Family Violence Protection Act 2008 (Vic)) bail conditions must be consistent with each condition of each family violence intervention order.
While Ms Thomas alleges family violence by him, the fact is that Mr Hamilton is not only an alleged victim of offending by Ms Thomas, but he is also the applicant for, and an “affected family member” in respect of, an interim family violence intervention order granted on 30 January 2020. The order prevents Ms Thomas from approaching or remaining within five metres of Mr Hamilton. Between 27 December 2017 and 9 February 2020, there were 21 separate occasions on which police received notification of an incident between Ms Thomas and Mr Hamilton. And Ms Thomas has previously been convicted of contravening a family violence intervention order.
On 17 April 2020, the respondent ascertained Mr Hamilton’s attitude towards Ms Thomas’s application for bail. He is supportive of her receiving bail and is not in fear of her. He told the respondent that he believes that Ms Thomas’s offending towards him was as a result of her drug use, which results in her being a completely different person. He also said he wishes to rekindle a friendship with Ms Thomas.
As I understand it, Mr Hamilton’s attitude is one of the many factors informing the respondent’s attitude to bail. Further, the fact that there is an interim family violence intervention order in place is another reason behind the submission that one of the conditions of bail be that Ms Thomas comply with the terms of that interim order.
It is against the background of those concessions that the ultimate concession regarding exceptional circumstances is made.
Mr Payne also submitted that, having regard to the repeat nature of Ms Thomas’s alleged offending while subject to a CCO and on summons for other matters, there is a risk that, if released, she would endanger the safety or welfare of another and commit offences. However, he also conceded that, in view of all of the surrounding circumstances and the conditions of bail proposed, the risk which Ms Thomas poses is not unacceptable.
After hearing further submissions from both Mr Payne and Ms Prior this morning, and with some minor tweaking, the conditions of bail proposed by the respondent are as follows:
(a) Ms Thomas is to reside at [REDACTED], Shepparton, Victoria (“her residence”).
(b) Ms Thomas is to comply with the terms of the interim family violence intervention order (dated 30 January 2020; No L10072947).
(c) Ms Thomas is to engage in the support services arranged by the Court Integrated Services Programme (“CISP”), including with Primary Care Connect, the Rumbalara Aboriginal Co-operative and the Australian Community Support Organisation.
(d) Ms Thomas:
(i) is not to leave her residence between 9:00 p.m. and 6:00 a.m. other than in an emergency (“the curfew hours”); and
(ii) if upon a reasonable request by police to do so, is to present herself at the front door of her residence during the curfew hours.
(e) Ms Thomas is not to contact any witnesses for the prosecution, other than the informants.
(f) Ms Thomas is not to leave the State of Victoria.
(g) Ms Thomas is to appear, in accordance with the prevailing Practice Direction of the Magistrates’ Court, at the Magistrates’ Court at Shepparton on 28 April 2020 at 9:30 a.m. and thereafter as directed by that court.
Conclusions
I turn now to my conclusions.
Only two days ago, in Re Diab, Beach JA said the following about the relevance of the COVID-19 pandemic to applications for bail:[21]
[38] The way in which COVID-19 may be relevant in the establishment of exceptional circumstances has been discussed in a number of recent decisions of this Court. More generally, the way in which the current health crisis may be relevant in a bail application has also been discussed. The following propositions have emerged:
(1) Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
(2) The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
(3) The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4) In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.
[21] Re Diab [2020] VSC 196 at [38] (footnotes omitted).
Applying those principles (which, in my opinion, are correctly stated), I am satisfied that the delay in the final hearing of the charges the subject of the present application is now likely to be such, and the hardship of incarceration (particularly under present conditions) for her is such, that there is a real risk that, if Ms Thomas is not released on bail forthwith, she will end up spending more time in custody than any prison sentence that might be imposed were she convicted of all the charges she faces. This is all the more compelling a proposition when it is recognised that several of the offences charged would not warrant imprisonment in any event, and the respondent, in carefully considered submissions, concedes that a non-custodial sentence is the more likely disposition.
In my view, it is also in the interests of both Ms Thomas and the community that she be given an opportunity to continue with her rehabilitation and recovery whilst on bail, rather than risking damage to her rehabilitative prospects by continued incarceration.
Thus, for these reasons, I am satisfied that there are exceptional circumstances that justify a grant of bail.
Further, while I am satisfied that there is a risk that, if released on bail, Ms Thomas will commit a further offence or endanger the safety or welfare of another, I am not satisfied that that is an unacceptable risk in all of the circumstances, including the proposed conditions.
While it might be thought that the condition concerning compliance with the interim family violence intervention order is unnecessary — since Ms Thomas must comply with the terms of that order in any event — I think that that is a proportionate and reasonable condition, especially given her history of previous offending and the nature of some of the charges she faces. It is intended that all of these conditions will have the effect of assisting Ms Thomas’s rehabilitation and reintegration. Further, the condition concerning the intervention order also should serve to remind Ms Thomas that even relatively minor failures to comply with that independent requirement could see her on the losing end of an application to revoke her bail.
Orders
Accordingly, the application for bail is granted.
Ms Thomas will be admitted to bail upon her own undertaking and with the following conditions:
(a) Ms Thomas is to reside at [REDACTED], Shepparton, Victoria (“her residence”).
(b) Ms Thomas is to comply with the terms of the interim family violence intervention order (dated 30 January 2020; No L10072947).
(c) Ms Thomas is to engage in the support services arranged by the Court Integrated Services Programme (“CISP”), including with Primary Care Connect, the Rumbalara Aboriginal Co-operative and the Australian Community Support Organisation.
(d) Ms Thomas:
(i) is not to leave her residence between 9:00 p.m. and 6:00 a.m. other than in an emergency (“the curfew hours”); and
(ii) if upon a reasonable by police to do so, is to present herself at the front door of her residence during the curfew hours.
(e) Ms Thomas is not to contact any witnesses for the prosecution, other than the informants.
(f) Ms Thomas is not to leave the State of Victoria.
(g) Ms Thomas is to appear, in accordance with the prevailing Practice Direction of the Magistrates’ Court, at the Magistrates’ Court at Shepparton on 28 April 2020 at 9:30 a.m. and thereafter as directed by that court.
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