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Supreme Court 19 January 2023

R v Vincent

[2023] NSWSC 8

Assault & violencePublic order & justice offences
BAIL WHERE THE APPLICANT IS A 33 YEAR WHERE UNLIKELY THAT A TERM OF FULL REFERENCE TO THE BUGMY BAR BOOK CHAPTER

Citation: R v Vincent [2023] NSWSC 8
Court: Supreme Court of New South Wales
Date: 19 January 2023
Judge(s): Yehia J

Background

The applicant, a 33-year-old Aboriginal woman, had been held on remand since 16 August 2022 following charges of stalking and intimidation and being armed with intent to commit an indictable offence. The allegations arose from an incident at a Dubbo residential building where she was said to have chased a homeless man down four flights of stairs while armed with a steak knife and threatening to stab him. After police attended, she was conveyed to hospital by ambulance and scheduled under the Mental Health Act 2007 (NSW), then admitted to Dubbo Mental Health Unit as an inpatient.

The applicant applied to the Supreme Court for release on bail. The Crown opposed the application, pointing to a history of prior bail breaches in 2011, 2016, and 2017, as well as a failure to appear at Dubbo Local Court in August 2017. A hearing in the Local Court was listed for 3 February 2023.

Legal Issues

  • Whether the applicant posed an unacceptable risk of non-appearance, commission of a serious offence, or danger to the complainant and the community under the Bail Act 2013 (NSW)
  • Whether any identified risks could be sufficiently mitigated by bail conditions
  • What weight should be given to the applicant's mental health, history of self-harm, and Aboriginal background in the bail assessment
  • Whether the likely sentencing outcome, if the applicant were convicted, was relevant to the bail determination

Decision

Risk assessment under the Bail Act:
Yehia J accepted that the bail concerns raised by the Crown were legitimately founded on the applicant's criminal record and prior breaches of bail (at [13]). The court was also satisfied that the prosecution case was strong, given the applicant's alleged admissions to police (at [7]). However, the court noted that the Bail Act does not require an absence of all risk; rather, it requires an informed balancing of risk (at [13]). The court further recognised that whether a risk is unacceptable must take into account whether bail conditions can adequately mitigate it (at [14]).

Mental health, self-harm, and impacts of remand:
The court drew on research from the Bugmy Bar Book chapter on the impacts of imprisonment and remand, noting that even short periods of incarceration can have wide-ranging detrimental effects, particularly on First Nations women (at [16]-[18], [22]). The applicant's NSW Corrective Services Records disclosed a history of self-harm and depression, which added specific weight to the general research findings (at [19]). The court observed that the impacts of incarceration on First Nations peoples, especially women, should never be underestimated (at [22]).

Likely sentencing outcome:
The court was not persuaded that, even if convicted, the applicant would necessarily receive a term of full-time imprisonment (at [23]). This assessment informed the overall bail determination. The court found that the applicant's underlying issues would be better addressed outside of custody, and that appropriate community-based treatment and care would better serve the protection of the community (at [23]).

Bail conditions:
The court granted bail with conditions directing 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 (at [23]). These conditions were central to the court's conclusion that the identified risks could be sufficiently mitigated.

Orders Made

  • Bail is granted

Key Takeaways

  • The Supreme Court confirmed that the unacceptable risk test under the Bail Act 2013 (NSW) requires an informed balancing of risk, not the elimination of all risk, and that the availability of mitigating bail conditions forms a necessary part of that assessment (at [13]-[14]).

  • Research from the Bugmy Bar Book on the impacts of imprisonment and remand was treated as a legitimate and useful resource in the bail assessment, providing context for evidence about an individual applicant's circumstances rather than serving as a free-standing basis for release (at [22]).

  • Where a court is not persuaded that full-time imprisonment would follow conviction, this assessment of the likely sentencing outcome is a relevant factor weighing in favour of release on bail (at [23]).

  • The disproportionate harms of even short-term remand for First Nations women, including loss of connection to culture and community and negative mental health consequences, carried specific weight in the court's evaluation of the risks and benefits of continued custody (at [17], [22]).

  • Bail conditions directing engagement with Aboriginal health services and community mental health support were accepted as capable of mitigating the identified unacceptable risks in circumstances where an applicant had documented mental health concerns and a history of self-harm (at [23]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW) ss 17, 18 and 19
- Crimes Act 1900 (NSW) s 114 (1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13 (1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9 and 10A
- Mental Health Act 2007 (NSW) s 22

Cases
- DPP v Zaiter [2016] NSWCCA 247
- R v Hamilton [2022] NSWSC 127
- R v Lago [2014] NSWSC 660
- R v Peter Tsallas [2017] NSWSC 64
- Raad v R [2015] NSWSC 532