IN THE SUPREME COURT OF VICTORIA	Not Restricted
Revised	
AT MELBOURNE
Criminal Division
S ECR 2022 0152

IN THE MATTER of the Bail Act 1977		
		
v  		
		
IN THE MATTER of an application for bail by KF	Applicant	

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JUDGE:	Jane Dixon J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	10 June 2022	
DATE OF RULING:	14 June 2022 (First revision 21 June 2022)	
CASE MAY BE CITED AS:	Re KF	
MEDIUM NEUTRAL CITATION:	[2022] VSC 349	

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CRIMINAL LAW – Bail – Applicant charged with aggravated burglary, intentionally causing serious injury and related charges – Applicant is a Wamba Wamba woman – Already spent 485 days in custody – Applicant’s mother and daughter have both passed away whilst she has been in custody – Mental health issues and trauma background – Lengthy criminal history – Compelling reason established – Whether unacceptable risk – Bail granted – Bail Act 1977 ss 1B, 3A, 3AAA, 4AA, 4E(1)(a).

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Ms J Prior	Law and Advocacy Centre for Women	
			
For the Respondent	Mr G Mohammed 	Office of Public Prosecutions	

HER HONOUR:
Introduction
1	KF is a 47 years old Aboriginal (Wamba Wamba) woman. She was arrested and remanded on 10 February 2021 charged by informant Senior Constable Ruki Jordan with the following charges:
(a)	Charge 1: Aggravated burglary (intent to steal, being reckless as to whether a person was present) on 4 February 2021; 
(b)	Charges 2: Intentionally causing serious injury on 4 February 2021;  
(c)	Charge 3: Attempted theft from a motor vehicle on 4 February 2021; and
(d)	Deal with property suspected of being proceeds of crime on 10 February 2021. 
2	Ultimately, an indictment was filed in the County Court of Victoria containing charges 1, 2 and 3: Indictment M10284088. 
3	The Court has received affidavit material from both parties to this application, a letter from Flat Out regarding the applicant, a letter from the Victorian Aboriginal Funeral Service, a letter from Forensicare dated 9 June 2022, and written outline of submissions from the respondent. I note that several reports about the applicant were annexed to the affidavit in support of bail. I have carefully considered all the material filed, in addition to oral submissions and evidence at the hearing in this matter on 10 June 2022.
4	On 5 August 2021, the applicant was refused bail in the Melbourne Magistrates’ Court. The Magistrate found that the compelling reason test had been met, however, refused bail on the basis the applicant posed an unacceptable risk of committing an offence whilst on bail. 
5	On 18 May 2022, bail was again refused in the Melbourne County Court on the basis that a compelling reason was not established, and that unacceptable risk was established.
6	The Jordan charges were listed for a plea hearing in February 2022, the applicant having entered pleas at an early stage in the Magistrates’ Court.  The matter ultimately proceeded as a Mention on the date set down for the plea hearing in the County Court. The applicant’s solicitor stated in her affidavit that this was due to concerns about the applicant’s health and about her ability to provide sound instructions at that time. A subpoena had been served on Justice Health, and the arraignment and plea were adjourned. The matter returned for further mention in May 2022, but was adjourned once more as the Justice Health subpoenaed records had not yet been provided. The matter was re-listed for 8 June 2022. On that date, the Defence made an application for the plea to be heard in the Koori Court. It is next listed on 29 June 2022 for a Directions Hearing in the Koori Court to determine eligibility for determination in the Koori Court.  
Summary of alleged offending
7	[The Jordan charges arise out of an the applicant breaking into the victim’s home in Melbourne’s West the early hours of the morning on 4 February 2021, and assaulting the victim with a sharp object.][Redacted.] [Before leaving the victim’s premises, the applicant rummaged through his car, though did not ultimately steal anything].
8	[The victim] was taken to hospital by ambulance and treated for his injuries. He presented with several significant injuries including multiple stab wounds to the right side and a laceration above the right eyebrow. The most significant injury was a right sided hemopneumothorax (punctured lung) which required surgical intervention.  
9	[Redacted.]. The accused was located by police on 10 February 2021 at an address in Melbourne’s West. She was arrested and searched, and identification cards belonging to an unknown person were found (giving rise to charge 4). The applicant was taken to Altona Police Station, and declined to comment in her police interview. She was remanded that day and has remained in custody ever since. 
10	It appears that the offence took place in the context of the applicant having taken three Xanax tablets on the day of the offence. At the time of her offending she had been being prescribed mood stabilisers, methadone and an antipsychotic. 
11	According to Ms Prior the applicant was in the [Redacted] area to visit one of her daughters who was living there at that time. It seems that the burglary was opportunistic and was motivated by pursuit of money or other items to obtain drugs. Ms Prior submitted that the applicant did not expect to become involved in a physical altercation with the householder and overreacted out of fear at that time.
12	The applicant entered pleas of guilty to all charges at the committal hearing on 6 October 2021.  
Applicable law
13	In applying and interpreting the Act, the Court must have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘The Act’). This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst also taking into account the presumption of innocence and the right to liberty.
Step 1. Compelling reason
14	The applicant is required to show a compelling reason that justifies a grant of bail pursuant to s 4AA(3) of the Act, because she is  accused of a Schedule 2 offence. Bail must be refused unless she satisfies the Court that a compelling reason exists that justifies the grant of bail. In making this determination, the Court must have regard to the surrounding circumstances, pursuant to s 3AAA of the Act including the matters listed therein. Section 3A of the Act also requires the Court to take into account any issues that arise due to a person’s Aboriginality. The respondent said that it was a matter for Court as to whether the compelling reason test was established. 
Step 2. Unacceptable Risk 
15	Even where the Court is satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing a risk that if released on bail, the applicant would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable.
16	Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’. The Court must again give consideration to s 3A in weighing the risk and in considering whether any conditions of bail could mitigate risk so that it is not an unacceptable risk. 
17	Section 3A was added to the Act in 2021, in response to recommendations from the Victorian Law Reform Commission. In the second reading speech for the amending act, the responsible minister stated that ‘the VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system…’.
Applicant’s personal circumstances
18	The applicant is 47 years old. She is Aboriginal, being a Wamba Wamba woman, from Swan Hill through her maternal grandmother. The applicant identifies with her Aboriginal heritage. She was born in Victoria, and has lived in the inner-city for much of her life. Much of the applicant’s personal circumstances can be gleaned from the reports supplied by her legal representatives.
19	She has one younger sister VF. Her family life during her childhood was described as impoverished, dysfunctional and chaotic. Her mother suffered a drug addiction, and her father was infrequently at home. It appears both her parents abused alcohol, and were not able to provide a stable and nurturing home environment. She suffered physical abuse from her mother and her mother’s partners during her childhood, and was also sexually assaulted by an uncle in her teens. It seems her mother may not have believed the applicant when she complained to her about this incident. 
20	When the applicant was a teenager, her father suffered a heart attack and fell off a roof and then spent four years in a coma. Her mother maintained several relationships with women during the applicant’s childhood, and the applicant recalls being bullied at school because of her mother’s homosexuality. She reported a suicide attempt at age 11 around the time her grandmother passed away. 
21	The applicant had limited schooling. She only attended primary school intermittently, and would often walk VF to school before returning home herself to clean the home. She left school in year 7. She has a very limited work history with some limited experience in cleaning and gardening. 
22	The applicant left home at 14 and lived with an aunt. She commenced a relationship with an older man, William, at that time, and then gave birth to her first of five children (her daughter S) at the age of 15. She remained in a relationship with William until he died as result of a drug overdose when the applicant was 18, and S was just 3. That death left her emotionally distraught and her life spiralled downward. The applicant was sexually assaulted by a cousin shortly after William died. When she was in her early 20s, she started a new relationship with a man named Darryl and they had three children: T, F and TF. The applicant has reported that Darryl was very violent towards her. The applicant left Darryl after he sustained a permanent disability in the early 2000s after falling from a balcony. 
23	The applicant has a history of psychiatric illness and was first hospitalised in a psychiatric facility when she was 19 years old. She has had several subsequent admissions. She has received formal diagnoses of chronic post-traumatic stress disorder, substance abuse disorder, and borderline and anti-social personality disorder.  Past physical illnesses include hospitalisation for severe hepatitis. 
24	Child protection authorities have been involved throughout the years with the applicant’s children. After her separation from Darryl, he retained custody of their three children for several years. The applicant had a fifth child, B with another partner, Chris, shortly after she left Darryl. B lives with his father Chris and the applicant has not seen B since he was five years old.  TF, T and S are adults now and live independently. 
25	The applicant’s parents are both deceased. Her father died when she was 23 years old. Her mother died in mid-2021, while the applicant was on remand for the present charges. Because the applicant was in custody, and because of the COVID-19 pandemic, the applicant was unable to participate in Sorry Business for her mother. The applicant’s younger sister VF is disabled since she suffered a brain aneurysm seven years ago. Their mother helped care for VF, until her death in mid-2021. The applicant’s son TF (who is 20 years old) now cares for VF. 
26	In addition to the death of her mother whilst on remand, the applicant’s daughter F died unexpectedly in a fire in May 2022. The applicant is the senior next of kin for her daughter, as appointed by the Coroner’s Court. Understandably, the death has caused the applicant profound grief. F’s body is currently with the Victorian Aboriginal Funeral Service, and the applicant’s daughter T has been struggling to make the funeral arrangements without her mother’s involvement.
Substance abuse and Criminal history
27	The applicant has a long history of substance abuse. She started smoking cigarettes at 9, and drinking alcohol at 12. She also commenced using cannabis when she was 12 years old, which continued until she was 14. She started injecting amphetamines when she was 15. She was using heroin at age 18, and this escalated after her separation from Darryl, in the context of losing custody of her three children. The applicant has been engaged in methadone programs in the past and has had periods of abstinence, including in 2011. 
28	The applicant’s lengthy criminal history commenced in 1996 when she was in her early 20s. The current offending appears to be her most serious offending to date. 
29	Relevantly to this application, in August 2018, the applicant was sentenced to 18 months imprisonment where the charges included burglary, theft, unlawful assault, aggravated burglary, theft from shop and three further charges of theft. It was unclear from the informant’s evidence whether the unlawful assault related to the charge of burglary or the charge of aggravated burglary but Senior Constable Jordan referred to a document that suggested that after departing a house but while still in the front yard the occupier tried to apprehend her and became involved in a scuffle during which time the applicant made a threat with a syringe. 
30	The applicant was sentenced to terms of imprisonment prior to the August 2018 sentence, including: 12 months imposed in June 2018 for breaching a 2015 community corrections order.  There were related charges of committing an offence whilst on bail and contravening conditions of bail. She also spent six months in custody in 2010 for burglary and related offending.
Applicant’s contentions in support of bail
31	At the hearing in this matter, Ms Prior for the applicant, submitted that the primary focus of the applicant’s submission as to a compelling reason was her obligations in relation to Sorry Business flowing from the death of her daughter, as the applicant is the senior next of kin. However, the applicant also relied on a combination of other factors to establish a compelling reason. 
32	Ultimately, the same matters put in support of a compelling reason were advanced by the applicant in the submission that she does not pose an unacceptable risk. The factors put are as follows:
(a)	Bereavement, Sorry Business and cultural obligations: The death of the applicant’s daughter has had a profound effect on her. It has led to a deterioration in the applicant’s overall health which was submitted to already be poor. Under s 3A of the Act, the Court must take into account any relevant cultural issues or obligations arising due to a person’s Aboriginality. In this case, the applicant is considered the senior next of kin by the Coroner's Court. She has a cultural obligation to participate in Sorry Business, and her participation in the funeral process is submitted to be crucial. Stacey Hamilton from the Victorian Aboriginal Funeral Services outlines in her letter the significant difficulties in determining funeral arrangements without the applicant's involvement. This was hampering the family’s ability to progress matters. She states: ‘I believe if mum [Redacted.] is released and given the opportunity to be part of the funeral planning process of [sic] we can move forward and put [F] to rest with dignity and respect, and take the pressure off of [T]. This will also help with all involved to move forward.’ Troy Williamson from the Coroners Court of Victoria states that [the applicant’s daughter] (referring to the deceased) is an Aboriginal woman, and contact has been made with the mother of the deceased, [the applicant], as the Court is required to appoint a Senior Next of Kin. [The applicant] meets the criteria and will be established as Senior Next of Kin in this matter.
(b)	Special vulnerability and personal background: The applicant refers again to the applicant’s Aboriginality and her background of personal trauma and poor mental health. The applicant left her mother’s care early in life, and then her own children were removed from her at various times. It was submitted that the applicant features in the statistical overrepresentation of Aboriginal women in custody, who are themselves victims of family violence and who were  raised in out-of-home care. The applicant's children now feature in the overrepresentation of Aboriginal children who have been removed from the care of their mothers. 
(c)	Ms Prior noted the applicant’s significant criminal history, but drew attention to the fact that her offending did not commence until she was in her 20s. There have also been periods were the applicant’s offending reduced, correlating with periods of relative stability in her life. For example, prior to her commencing offending in her early 20s, and in 2011 to 2012, then again in 2015 to 2018.  Following the applicant’s release from custody in 2018, Ms Prior noted that there was a period of 12 months offence free before the applicant engaged in the current offending. Ms Prior noted that the conviction in August 2018 for unlawful assault was the only conviction prior to the current offending that involved violence.
(d)	In relation to the current offending, Ms Prior submitted that on her instructions, the applicant was in the [Redacted] area on the evening of the offending because her daughter T lives in that suburb. When the applicant was disturbed in the house she was unable to leave because of the physical struggle with the victim.  She found the incident frightening, and her response took her back to her troubling experiences as a child. She could not otherwise explain why she reacted as she did. The current offences were far and away the most serious offences in her criminal history leading to the applicant to feel ashamed and traumatised by the events.
(e)	Onerous conditions in custody: The applicant's time in custody was submitted to be more onerous for her because of her trauma history and poor mental health,  exacerbated by the death of her mother and her daughter whilst on remand. In addition, since the applicant has been on remand, her physical health has declined, leading to breathlessness, reduced mobility, fluid retention and chronic back and knee pain.  It was submitted that anxiety and discomfort about her medical and physical condition hindered the applicant’s ability to give proper instructions in the lead up to her County Court plea. Further, in recent times, two Aboriginal women have died while in custody at the prison and one of those women died in November 2021, while the applicant has been on remand. The events surrounding these deaths, including information about medical management that has been made public during the coronial investigations compounded the applicant’s fears about the inadequacy of medical treatment in custody. Ms Prior submitted that partly due to those deaths, the applicant is frightened and distrustful of medical staff at the prison. It was submitted that the applicant's health and wellbeing will continue to deteriorate as long as she remains on remand at the prison. 
(f)	Ms Prior told the Court that the Justice Health records that were subpoenaed for the purpose of presenting the applicant’s plea are now available. She said that there were references in those records to several specialist appointments having been made for the applicant and cancelled, or postponed, not through any fault of the applicant.  However, Ms Prior conceded that the applicant had also missed some appointments. She has engaged with treatment in recent times primarily for grief and loss. The applicant has  expressed concerns about the psychiatric medication she is on and how those drugs are interacting with the medical treatment of her physical ailments. Ms Prior noted that the applicant had accidentally severed part of one of her fingers whilst in custody as a result of getting it caught in a door. The applicant has had a telehealth appointment with a cardiologist to investigate tingling sensations in her hands. 
(g)	Stable address and family support: Ms Prior submitted the applicant has very strong family support, and that those connections have not been shaken despite the significant trauma the family have endured recently. The applicant proposes to live with her sister VF and her son TF in Melbourne’s inner South if released on bail. The applicant would help with the care of her sister. The informant gave evidence at the hearing that she had no issues with that address as a proposed bail address. Whilst according to VF the applicant is welcome to remain at her residence as long as needed, independent accommodation will be sought for the applicant in the longer term.  Ms Coleman who is a social worker connected to the organisation Flat Out has made enquires of Launch Housing and has started a referral process, although the current plan is for the applicant to reside with her sister until other suitable housing can be arranged.
(h)	The applicant’s sister VF gave evidence at the hearing. She told the Court she had lived at her current address for about three to four years. Prior to that, she lived with her mother in Prahran. She suffered a brain aneurysm in 2012, that left her with permanent disability. Her mobility is affected, and she uses an electric scooter to get around. She confirmed that her nephew, TF, the applicant’s son, lives with her and helps her. He had lived with her and his grandmother before she passed away, and took over caring responsibilities for VF after his grandmother’s passing. VF told the Court that she is very close to the applicant, and always had been. She described the applicant as her protector when they were growing up.  She acknowledged that their lives had been difficult. At times, VF has looked after the applicant’s children when the applicant has been unable to. While the applicant has been on remand, she and the applicant have kept in contact by phone every few weeks.
(i)	VF is aware of the applicant’s criminal history, the applicant’s current charges, and her substance abuse history. She has no issues with her sister living with her if released on bail and said she needs her sister, especially now that their mother has passed away. VF expressed that it had been horrible not having the applicant around. VF told the Court that the applicant needs to be matriarch of the family as she is the eldest now. She needs to support her children, and she also has three grandchildren. VF was aware her sister would need to attend many appointments with support services if released on bail. She would  encourage the applicant to engage with all services available, and would welcome any workers who attended her home to transport the applicant to appointments. VF told the Court that her residence has two bedrooms, but TF would give up his bedroom to his mother. If the applicant were to reside with her sister in the longer term, VF said that she would need a housing transfer to a bigger home for herself, TF and the applicant, however she told the Court that the applicant always had a home with her. 
(j)	The applicant’s son TF spoke to the Court informally during the hearing. He is 21 years old and lives with and cares for his aunt VF. He told the Court that he and his family needed his mother in the community and he thought she needed them too. He was content for his mother to live with him and VF. He confirmed that his sister S lived nearby but she lived on her own. S’s relationship with the applicant was good. TF does not drive, but would support his mother.  
(k)	The applicant also informally addressed the Court at the conclusion of the bail hearing. She appeared genuine in her commitment to complying with bail conditions as bail would allow her to join with her family in burying her daughter and sharing the grieving process. 
(l)	Delay: As at the date of this application the applicant will have been in prison for approximately 16 months (485 days). It was submitted there may be further delay in her matters being finalised, as it is not yet clear when her plea hearing will be ready to proceed. 
(m)	Bail support services: If bailed the applicant would be engaged with the following services, who are all, on Ms Prior’s submission, liaising with one another about the services that will be provided to the applicant upon her release:
(i)	Australian Community Support Organisation (‘ACSO’): in a letter dated 18 May 2022, forensic case worker at ACSO, Emma Somerville, states that the applicant is a voluntary participant of the ACSO Restart Program.  Through the program, the applicant would receive outreach support over a three-month period post-release to help her transition from custody to the community, with a focus on alcohol and other drug treatment, and family connectedness. The plan, which has been developed collaboratively with the applicant, will be implemented on her eventual release from custody. Engagement with ACSO  is voluntary and should not be mandated as a bail condition. 
(ii)	Flat Out: in letters dated 16 May and 3 June 2022, outreach support and advocacy worker at ‘Flat Out’, Caitlin Coleman, states that the applicant is a voluntary client of Flat Out’s outreach service.  Ms Coleman has had discussions with the applicant whilst she has been in prison. The applicant has expressed a desire to become a mentor to young people, but recognises she needs to get herself healthy and stable first. Through the Flat Out service, the applicant is able to receive practical and emotional support both in custody and in the community, as well as housing and other referrals, assistance with transport and case coordination and management. The assistance from Ms Coleman will continue into the future, without limit, if the applicant is granted bail. Ms Coleman will transport the applicant from custody directly to her place of residence if granted bail and will schedule a home visit with her within two working days of her release. She will also assist the applicant to attend her GP for review on her release. Ms Coleman was present in court throughout the proceeding.
(iii)	Ms Coleman notes that a collaborative support plan has been developed for the applicant and that the applicant’s various support teams are working together to make sure that the applicant receives appropriate specialist interventions without any service gaps.  
(iv)	Western Region Centre Against Sexual Assault (‘WestCASA’): in a letter dated 16 May 2022, Penelope McDonald, psychologist and team leader within WestCASA’s specialist trauma service at the prison, states that the applicant has been a client of WestCASA since 2019. The applicant first met with Ms McDonald in 2019, and despite some reservations, has shown a commitment to counselling and a genuine desire to change the course of her life. When the applicant was remanded on the present matter, she again sought the support of Ms McDonald through WestCASA. Ms McDonald states in her letter that applicant’s children are a driving force for her to make significant changes in her life. Ms McDonald is committed to assisting the applicant and has built a strong rapport with her.
(v)	Forensicare Community Integration Program: Ann Walsh, clinician at Forensicare’s Community Integration Program (‘CIP’), advises that the applicant has been assessed as suitable for the CIP.  The CIP will facilitate the applicant’s transition to appropriate mental health services in the community in the short-term (12 weeks), if bail is granted. Ms Walsh has made an appointment for the applicant with the Victorian Aboriginal Health Service on Monday 20 June 2022. As CIP is a voluntary program, engagement with the CIP should not be mandated as a condition of bail.
(vi)	Koori Family Engagement: the applicant has been engaged with Troy Williamson, who is a Koori Family Engagement Officer at the Coroner’s Court, for support in relation to her daughter’s recent death. The applicant’s family are also supported by Stacey Hamilton from the Victorian Aboriginal Funeral Service (Aborigines Advancement League), and Ms Hamilton also supplied a letter  to the Court for this application.
Respondent’s contentions in opposition to bail
33	The Respondent in their affidavit in response to the application for bail said that it was open to the Court to find if a compelling reason exists that justified the grant of bail. In oral submissions Mr Mohamed said it was a matter for the Court to be satisfied of.  
34	The informant, Senior Constable Ruki Jordan, gave evidence at the hearing. 
35	Bail is opposed on the basis that the applicant poses an unacceptable risk as follows:
(a)	Endangering the safety or welfare of any person and committing further offences whilst on bail: The informant viewed this risk as being based on the applicant’s prior criminal history and the recent escalation in her offending. 
(b)	Senior Constable Jordan referred to the 2018 sentence, and the facts behind the unlawful assault charge described earlier in these reasons. She also told the Court that her inquiries with Corrections revealed that the applicant had returned two positive urine screens for an unknown drug of dependence whilst on remand and had recorded a high blood alcohol level on another occasion. 
36	The seriousness of the applicant’s current offending was also relied on by the informant including the medical material detailing that the victim required surgery for a punctured lung. The informant told the Court that the victim in this matter was opposed to bail. He continues to have trouble sleeping following the alleged offending, and locks the house constantly. 
37	In their affidavit, the Respondent also stated there was an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice, and/or failing to answer bail, but these matters were not pursued at the hearing. 
38	Mr Mohammed submitted at the hearing that before applying s 3A, the Court had to be satisfied of the applicant’s Aboriginality. There was evidence before the Court that the applicant is an Aboriginal woman, descended from the Wamba Wamba people, that she self-identifies as such and that she is accepted as a member of the Aboriginal community. Counsel should proceed with caution in raising questions about a person’s Aboriginality in circumstances where no controversy is raised on the material before the Court. In light of the way the matter was approached by the applicant, where reliance on s 3A was foreshadowed well in advance of the hearing in the applicant’s affidavit material, the respondent’s submissions advanced on this topic did not assist the Court.
39	Mr Mohammed drew attention to the fact that the support services offered to the applicant are voluntary and that they had all requested that the Court not mandate engagement with their services as part of bail. This was said to diminish the utility of these supports on the question of unacceptable risk.
Consideration
40	Having considered all of the material before me, I am satisfied that there is a compelling reason justifying a grant of bail, established through a combination of circumstances including the length of time the applicant has already spent on remand. The combined circumstances include the onerous conditions in custody for the applicant as an Aboriginal prisoner and in light of COVID-19 restrictions, the profound grief caused to her by the death of both her mother and daughter whilst she has been on remand, sorrow and guilt associated with not being able to participate in Sorry Business for her mother during the COVID pandemic, Sorry Business obligations as the senior next of kin for her daughter, the applicant’s unfortunate personal background, the strong family support available to her through her sister and adult children, the availability of wraparound bail support services, and the applicant’s seemingly genuine commitment expressed to the Court that she will abide by any restrictions imposed on her if it will enable her to bury her daughter in the customary way. 
41	The offending is serious and the applicant faces a lengthy term of imprisonment, although she entered her plea at a relatively early stage in the prosecution.  She is nearing 500 days on remand and has now applied for sentencing to occur in Koori Court. This may require further material to be gathered for the Koori Court eligibility hearing. 
42	It is difficult to predict whether if bail is granted and the applicant establishes a rehabilitative path, her ultimate sentence would require her to return to prison.  This will be a matter for the sentencing judge on the basis of all the material put forward as part of the plea and sentencing proceedings. I do not rule out that a combination sentence inclusive of time served might be advanced on behalf of the applicant as an option for the Court to consider.  In approaching the question of bail I have paid careful regard to s 3A of the Act, and the overrepresentation of Aboriginal people in custody. The applicant’s criminal history commenced in her early 20s and has involved persistent dishonesty offences, generally liked to substance abuse. She has performed poorly on community based dispositions in the past and has received a number of sentences of imprisonment ranging from short sentences to up to 18 months behind bars.  As mentioned by Ms Prior, the current offending stands out as by far the most serious criminal conduct the applicant has ever engaged in. Bugmy factors will likely be relevant for the sentencing Court to consider as part of her plea. 
43	The sentencing Court may be assisted by information about the applicant’s response to the integrated bail support plan that has been developed for her.  I note that the applicant has in the past demonstrated some ability to improve her behaviour when sufficient supports are in place as evinced through her periods of stability in 2011/2012 and later around 2016/2017. She was also offence free for 12 months up until the current offending.
44	All of the surrounding circumstances referred to above militate in favour of the compelling reason test being established. I make this finding regardless of the chance that the applicant could return to custody after sentencing. 
45	I now turn to the question of whether the applicant poses an unacceptable risk of engaging in any of the conduct under s 4E(1) of the Act. The respondent alleged the applicant poses an unacceptable risk of endangering the safety and welfare of any person and/or committing further offences whilst on bail.
46	This submission was based on the applicant’s extensive prior criminal history and the fact that having been sentenced to 18 months imprisonment in 2018 for offences of a similar nature to the present charges, the charges she now faces show an escalation in seriousness. I have taken account of the respondent’s submission that engagement with most of the support services on offer will be voluntary, and will not be mandated as part of bail.  However, in my view, it is not essential that all interventions offered to a person leaving custody on bail are specified for mandatory participation as a bail condition. The applicant will be responsible for engaging with the interventions offered to her, but she will not be unsupported in that. Ms Coleman will provide case coordination and case management to the applicant, and Ms Prior informed the Court that the services that have been secured for the applicant are each aware of one another and will work in conjunction with one another. The applicant’s family will also encourage her ongoing participation with post-release support.  I am not satisfied that the voluntary nature of the bail support services undermines their significance in mitigating risk in this case. The services offered to the applicant appear appropriately targeted to her needs, and to the underlying causes of her offending. 
47	I agree with Ms Prior that this is a critical time in the applicant’s life, and there are now powerful incentives for her to change her ways, including the requirement for her as senior next of kind to make decisions about Sorry Business in respect of her daughter.
48	The application of s 3A of the Act is centrally relevant to my consideration on the question of unacceptable risk in this case. The bereavement experienced by the applicant whilst on remand in respect of her mother and daughter, and the need for the applicant to finalise funeral arrangements for her daughter, should serve as an incentive to avoid doing anything that would return her to custody where she would be unable to participate in these important cultural obligations. Further, as Ms Hamilton’s letter makes clear, the applicant’s family has been stalled regarding the finalisation of funeral arrangements without the applicant being present to lead those arrangements. If the applicant were to breach her bail conditions, she could expect to be returned swiftly to custody. This would take her away from her family once again, whereas VF and TF told the Court, they need her, just as she needs her family near her at this time. That strong family connectedness should serve as a protective factor in the present case. 
49	I acknowledge the victim’s opposition to bail and the serious nature of the offending against the victim.  I will impose conditions that prevent the applicant from approaching within 200 metres of the victim’s home.  She will not be permitted contact with prosecution witnesses. 
50	On offering the applicant a chance to address me directly I found the applicant’s own entreaty to the Court to be persuasive. She is clearly troubled by not having been there when her daughter died. She wants to be with her family at this culturally important time. She said she would not relapse because she has too much to do, and needed to bury her daughter and go through ceremonies related to that. She said she was ashamed of her history and begged for a chance to make things right. The applicant appeared genuine in her presentation. She was visibly distressed when her sister and son addressed the Court and also when she spoke on her own behalf. I am confident the seriousness of her situation is clear and that she understands the importance of making the most of the support services on offer and complying with the conditions of her bail. 
51	Bail will be granted on stringent conditions.
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