The Law Handbook 2024

Chapter 3.6: How bail works 209 can impose conditions to mitigate risk and must consider whether risk can be reduced to a level at which it becomes an acceptable risk. The question is not whether the risk can be eliminated ( Re Brown [2022] VSC 578). In Hall v Pangemanan [2018] VSC 533, Justice Croucher considered the application of ‘unacceptable risk’ in a bail application where the applicant was charged with being drunk in a public place and breaching a curfew condition (a Bail Act offence). His Honour noted that this type of offending is not serious and has a low risk of harming the public (apart from being a nuisance and creating work for police officers). An ‘unacceptable risk’ is not any risk of reoffending; rather, the question is whether the risk is unacceptable. The law must recognise that a high risk of reoffending of a minor nature is not unacceptable. His Honour concluded that the risk in that case was acceptable because the alternative (i.e. imprisonment for an offence that does not warrant such a sentence) is intolerable. His Honour said, ‘Common sense says that we cannot keep locking people up in those circumstances’ (at [25]). In Re HA [2021] VSCA 64, the Court of Appeal held that the ‘question of unacceptable risk “must be relative to all of the circumstances”, in particular the exceptional circumstances that justify the grant of bail’. A risk that may otherwise be considered to be unacceptable may be deemed to be acceptable if the relevant circumstances are particularly compelling. Even in circumstances where the prosecution concedes that an applicant’s likely sentence is less than the time they may spend on remand, a bail decision- maker must still consider the issue of risk and may refuse bail if the accused poses an unacceptable risk (see Re Dib [2019] VSC at [10], [53], [57]). However, in HA v The Queen [2021], the court held that in such circumstances, the continued incarceration becomes a form of preventative detention, which is alien to the fundamental principles of our justice system (see [63]–[64]). In determining whether an applicant constitutes an unacceptable risk, a court is required to evaluate the alleged risks and consider whether they can be made acceptable by the imposition of conditions as recognised by the Bail Act. In Re Moore [2019] VSC 344, the court recognised that although some risks may be substantial, they may be ‘acceptably ameliorated by strict conditions’ (at [40]). In Re Moore , the court held that even where an offender constitutes an unacceptable risk, the availability of appropriate treatment at a facility may render the risk acceptable (at [34]). The availability of residential rehabilitation ‘may be viewed in the matrix of surrounding circumstances considered to be relevant to risk mitigation’ ( Re Hamilton-Greene [2021] VSC 484). Notwithstanding significant delay and hardships in custody caused by the COVID-19 pandemic, courts must separately consider unacceptable risk as the second step in decision-making regarding bail. In the case of DPP (Vic) v Walker (a pseudonym) [2020] VCC 447, the court held that even where a compelling reason was established by the accused, the risk arising from him living with his partner and her children during stay at home restrictions was unacceptable where there was a significant history of family violence offending (see [45]–[49], [52]). See also Re Lowe [2020] VSC 584 at [51]–[52]. See also Re SS [2020] VSC 618 regarding low- level offending; Re Howell [2021] VCC 112 regarding extensive criminal history and disregard for court orders; Re SC [2021] VSC 770 regarding the delay between the alleged offending and being charged in the context of historic sexual offending; Re Hamilton- Greene [2021] VSC 484 at [12] regarding the relevance of the availability of residential rehabilitation as risk mitigation; and Re GC [2021] VSC 12 regarding Aboriginal children in custody and conditions to mitigate risk. Other grounds for refusing bail Bail may be refused if the court is satisfied that there has not been enough time since the commencement of the proceeding against the accused to obtain sufficient information for the purpose of deciding the matter (s 8A Bail Act). Bail may also be refused if the bail applicant is charged with an offence of causing injury and it is uncertain whether the injured person will die or recover (s 8B Bail Act). Bail and the Human Rights Charter In recent bail decisions, attempts have been made to rely on, or incorporate provisions of, the Charter of Human Rights and Responsibilities Act 2006 (Vic) ( ‘Human Rights Charter ’) – in particular section 25, which refers to the right of a person accused of a