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Supreme Court 19 February 2026

R v Bottomley

[2026] NSWSC 133

Assault & violenceTheft & propertyFirearms & weapons
BAIL RELEASE APPLICATION UNACCEPTABLE RISK TEST SELF SIGNIFICANT NEED OF SUPPORT BAIL GRANTED

Citation: [2026] NSWSC 133
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 19 February 2026
Judge(s): Dhanji J

Background

The applicant, a 38-year-old woman, sought release on bail pursuant to s 49 of the Bail Act 2013 (NSW) after approximately five months in custody. She had been arrested on 23 September 2025 and charged with larceny, attempted armed robbery with an offensive weapon, and demanding property with menaces.

The allegations were serious. The Crown case, described by the Court as a strong one, was that the applicant entered a retail store and took two knives without paying. She then attended a bank branch, produced one of the knives — with a blade approximately five centimetres long — and demanded $5,000 from a staff member behind a counter and partial screen. A panic button was activated, police attended with a taser, and the applicant complied with directions to drop the knife before being arrested.

The applicant had an extensive criminal history, particularly involving offences of assault (including against police), possession of a knife in a public place, and property damage. This history had resulted in frequent periods of imprisonment dating back to 2011. However, the Court noted that the applicant's offending was clearly linked to various conditions from which she suffered and her significant need for support. Critically, since entering custody on these charges, she had self-harmed on multiple occasions, sustaining serious injuries despite the risk intervention protocols in place.

  • Whether the applicant posed an unacceptable risk within the meaning of ss 17 and 19 of the Bail Act 2013 (NSW) — specifically, a risk of committing a serious offence or endangering the community.
  • Whether bail conditions, including a proposed home detention arrangement with disability support, were sufficient to mitigate the identified bail concerns to an acceptable level.
  • What weight should be given to the applicant's complex disability needs and the custodial system's inability to adequately manage them.

Decision

Dhanji J acknowledged that the unacceptable risk test under s 19 of the Act applied, and identified a genuine bail concern regarding the risk of further serious offending. This concern arose from both the strength of the Crown case and the applicant's extensive criminal history, which featured a recurring pattern of short periods in the community followed by re-offending and further imprisonment.

His Honour observed, however, that the applicant's offending was driven by particular deficits and conditions, meaning that general deterrence would play "very little role" and specific deterrence was unlikely to be effective beyond the period of actual incarceration. The Court characterised her as someone the criminal justice system "struggles to deal with."

A pivotal piece of evidence was a letter from Dr Gary Nicholls, the executive medical director of Justice Health NSW. Dr Nicholls candidly acknowledged that Justice Health could meet the applicant's acute healthcare needs but was not resourced or funded to provide the intensive disability support she required. The custodial environment could not replicate the level of carer support available in the community through the NDIS, and the applicant was spending "long periods unsupported." Dr Nicholls further noted that the resources required to approximate equitable care for patients with the applicant's profile diverted clinical resources from other acutely unwell patients.

Against this background, the Court considered the bail proposal. The applicant had accommodation through an organisation called Goodcare, with which she had maintained residency for the past two years — described as her longest period of stable housing, attributable to Goodcare's proactive approach. The proposed conditions included home detention, permitting the applicant to leave only in the company of a support worker or for emergency medical treatment. Goodcare also offered security cameras at the residence and the option of a personal monitored camera for supervision and compliance purposes. Importantly, the Crown respondent accepted that the proposed conditions, particularly the home detention arrangement with the identified support providers, were sufficient to mitigate the otherwise obvious concerns so that the risk was not unacceptable. The Court agreed and also found that risks of failure to appear and interference with witnesses or evidence were mitigated to an acceptable level. Bail was granted.

Orders Made

  • Bail granted subject to conditions, including:
  • Home detention at the applicant's Goodcare residence
  • The applicant permitted to leave only in the company of a support worker or for emergency medical treatment
  • Two support workers (one from Goodcare, one from disability support services) to collect the applicant upon release and transport her to her residence

(Note: The full list of bail conditions was not set out in the published portion of the judgment.)

Key Takeaways

  • The Supreme Court found that where custodial environments and Justice Health cannot adequately meet an accused person's complex disability and self-harm management needs, this constitutes a significant factor in the bail assessment, particularly when more suitable support services are available in the community.

  • A candid letter from the executive medical director of Justice Health, acknowledging the limitations of custodial care and the diversion of resources required for patients with complex needs, was clearly influential in the Court's reasoning.

  • Even where the Crown case is strong and the applicant's criminal history is extensive, a well-developed bail proposal (in this case involving established residential support, home detention, continuous supervision, and monitoring) can reduce risks to an acceptable level. The Crown's concession on this point was noted as significant.

  • Under the sentencing principles relevant to the bail assessment, general and specific deterrence were found to play little or no role given the link between the offending and the applicant's disability, and the Court treated this as relevant context, though not itself determinative of the bail question.

  • The decision turned heavily on the particular evidence about the applicant's self-harm history, Justice Health's limitations, and the specific support arrangements available through Goodcare and the NDIS. In granting bail, the Court engaged in fact-specific reasoning that does not establish a broad principle that bail will be granted in all cases involving disability and self-harm in custody.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 19, 49

Cases:
- No cases were cited in the decision.