Thomas v Kitching

The applicant, a 44-year-old Aboriginal woman, was before the Supreme Court of Victoria seeking bail in respect of charges including burglary, dishonesty offences, assaults and others. The applicant was before the court having twice been refused bail by the Magistrates' Court, which was attributed to the applicant being charged with Schedule 2 offences during a period of a community correction order. The court was required to determine whether there were exceptional circumstances warranting the applicant's release on bail and whether her release would represent an unacceptable risk of reoffending.

The court found that the applicant's significant criminal history, which included a six-year period of abstinence from offending, did not preclude the finding of exceptional circumstances. The court found that the applicant's history of illicit drug use and failure to comply with prescribed medication regimens while in custody, together with her untreated cervical bleeding and lump in her breast, were exceptional circumstances warranting bail. The court also found that the risk of reoffending was not unacceptable because the respondent did not oppose bail and the applicant had provided a personal undertaking together with strict bail conditions.

The court granted the applicant bail on her own undertaking and imposed conditions including that she reside at a specified address, comply with a curfew, submit to electronic monitoring, and refrain from consuming alcohol or illicit drugs. The applicant was also required to attend medical appointments and comply with prescribed medication regimens. The court ordered that if the applicant was ultimately convicted but not bailed, any resulting prison sentence was to be backdated to the date of her arrest.