R v Vincent

1. [1]

   The applicant, Victoria Vincent, has pleaded not guilty to offences of stalk and intimidate, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and being armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW). The proceedings are listed for hearing at Dubbo Local Court on 3 February 2023. The applicant has been in custody since 16 August 2022.

2. [2]

   Ms Vincent comes before this Court to make an application for release. That application is opposed by the Crown. This is not a show cause offence. The Crown opposes bail on the basis that the applicant poses an unacceptable risk of non-appearance; commission of a serious offence; and a risk of danger to the complainant, individuals, and the community.

3. [3]

   In support of that position, the Crown points to the applicant having breached bail in the past and a history of non-compliance with court orders. For instance, the applicant failed to appear on 24 August 2017 at Dubbo Local Court; a matter of which was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant also breached bail in September 2011; October and November 2016; and in June 2017.

4. [4]

   The allegations relate to an incident where the applicant is said to have chased the complainant down a stairwell whilst she was armed with a knife. The applicant was residing at an address in Church Street, Dubbo. The complainant was homeless and had been staying in the stairwell.

5. [5]

   It is alleged that without provocation, the applicant began yelling at the complainant and threatened to stab the complainant. At the time, she was holding a steak knife. The applicant chased the complainant down four flights of stairs and out of the building, all the while thrusting the knife towards him.

6. [6]

   Police attended and spoke to the applicant. She admitted chasing the complainant out of the building whilst she was in possession of a knife. Due to her behaviour, the applicant was conveyed to hospital by ambulance and scheduled by police pursuant to s 22 of the Mental Health Act 2007 (NSW). She was later admitted to Dubbo Mental Health Unit as an inpatient. Clearly, the police were concerned about the applicant’s mental health.

7. [7]

   Given the admissions alleged to have been made by the applicant, I am satisfied that this is a strong prosecution case.

Unacceptable Risk

1. [8]

   Section 19(1) of the Bail Act 2013 (NSW) (“Bail Act”) provides that:

2. [9]

   Accordingly, in determining if there is an unacceptable risk, I must have regard to the bail concerns as set out in s 17(2) of the Bail Act.

3. [10]

   In R v Lago [2014] NSWSC 660, Hamill J indicated that the provisions of the Bail Act cast an onus on the party who is opposed to the grant of bail. In relation to the assessment of unacceptable risk, his Honour stated at [8] – [9]:

4. [11]

   Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) of the Bail Act sets out a list, which is both mandatory and exhaustive, of the factors to be considered by the bail authority in assessing bail concerns under s 17 of the Bail Act: see Raad v R [2015] NSWSC 532.

5. [12]

   I have considered the following matters pursuant to s 18(1) of the Bail Act:

6. [13]

   I accept that the bail concerns relied on by the Crown are legitimately raised given the applicant’s criminal record and previous breaches of bail. However, the estimation of risk is always difficult to assess. The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk. In R v Tsintzas [2017] NSWCCA 172, at [50], N Adams J said:

7. [14]

   An assessment of whether the risk is unacceptable also includes consideration of whether the risk can be mitigated by bail conditions: see R v Hamilton [2022] NSWSC 127 at [14].

8. [15]

   It is well recognised in this Court that bail decisions involve a discretionary evaluative judgment on a variety of factors about which, and within limits, reasonable minds may differ. Every bail application presents its own unique factual matrix, and the bail authority must have regard to such facts when making a determination under the Bail Act: see DPP v Zaiter [2016] NSWCCA 247 at [31]; R v Peter Tsallas [2017] NSWSC 64 at [21].

The Bugmy Bar Book

1. [16]

   The applicant relies upon the Bugmy Bar Book Chapter titled ‘Impacts of Imprisonment and Remand in Custody’ (“the Chapter”). [1] Research shows that imprisonment has negative impacts on the physical and mental health of incarcerated individuals, and these impacts persist after release. [2] Other documented impacts of imprisonment include loss of housing, barriers to employment, and significant negative impacts on families and communities, which may affect families and communities in different ways. [3]

2. [17]

   The family and community impacts of incarceration are more pronounced for Aboriginal and/or Torres Strait Islander Peoples, particularly women. [4] Loss of culture and disconnection from Country and community due to imprisonment may have adverse impacts on the social and emotional well-being of Aboriginal and/or Torres Strait Islander Peoples incarcerated. [5]

3. [18]

   Even short periods of incarceration, including remand, can have a wide-ranging detrimental impact and may be linked with subsequent contact with the criminal justice system. [6] The Chapter refers to research which shows that people who receive non-custodial penalties are significantly less likely to be re-convicted, even within the next 12 months, than those who receive sentences of imprisonment. [7]

4. [19]

   The Australian Government Productivity Commission (2021) found the 21% of people in prison have a history of self-harm. [8] In this case, as indicated above, the applicant’s NSW Corrective Services Records indicate a history of self-harm and depression.

5. [20]

   The 2009 New South Wales Inmate Health Survey found that First Nations Peoples in prison “were more likely to have ever attempted suicide than non-Aboriginal inmates and Aboriginal men were more likely to have ever self-harmed”. [9]

6. [21]

   The Australian Law Reform Commission (2017) found that “being held in prison for even a short period of time can be disruptive and destabilising, especially for women where the ‘social as well as the financial costs of these short-term remands can be very high’”. [10]

7. [22]

   The Bugmy Bar Book research is a useful resource which has assisted the Court in understanding the impact of remand in custody, even for short periods. The research lends context to the material that has been tendered on behalf of the applicant which relates directly to her individual circumstances and background. The impact of incarceration on First Nations Peoples, and, in particular, First Nations women should never be under-estimated.

8. [23]

   Given that I am not persuaded that, even if found guilty, the applicant would necessarily be sentenced to a term of full-time custody, I am satisfied that the applicant should be released to bail. In making that determination, I have had regard to the amended proposed bail conditions and, in particular, the conditions which direct the applicant to re-engage with the Dubbo Aboriginal Medical Service and the Dubbo Community Mental Health Drug and Alcohol Service for assessment, care, and treatment. The applicant’s underlying issues will be better treated and managed outside of the custodial environment. Such treatment and care will better serve the protection of the community.

9. [24]

   Accordingly, I grant bail.