By Paul McClure
9 October 2022
When James Gargasoulas ploughed his maroon Commodore into a bustling Bourke Street on the afternoon of January 20, 2017, he could not have known how his lethal actions would impact Victoria’s criminal justice system.
The revelation that Gargasoulas was on bail at the time outraged a public already being bombarded with media reports of armed robberies, aggravated burglaries and carjackings.
Consistent with its tough-on-crime stance and responding to a public clamouring for reform, in 2018 the Victorian Government overhauled the Bail Act, making Victoria’s already strict bail laws the most onerous in the country.
Bail has long been an integral part of our criminal justice system.
In addition to managing risk and protecting the community, its primary purpose is to ensure an accused’s attendance at court.
When seismic changes were made to Victoria’s bail system in the aftermath of Bourke Street, court attendance took a back seat to community protection.
The presumption against bail was extended to more than 100 offences meaning that, by default, bail is refused unless an accused can demonstrate the existence of ‘compelling reasons’ or ‘exceptional circumstances’.
The Bail Act does not define what constitutes compelling reasons or exceptional circumstances; magistrates, judges and lawyers must look to case law for guidance.
Previously, the exceptional circumstances bail test applied to only the most serious offences – treason, terrorism, commercial-scale drug trafficking, and murder.
Now, a person on bail for shoplifting who commits a further offence and wants to make a fresh application for bail must meet the same threshold test as someone charged with murder.
If bail is refused, an accused remains an unsentenced prisoner, on remand until their charges are finalised, which can take months.
Victoria’s Sentencing Advisory Council reports that between 1977 and 2021, the number of unsentenced prisoners increased from 13.1 per cent to 43.9 per cent.
In March, the Legislative Council’s Legal and Social Issues Committee released their inquiry into Victoria’s criminal justice system which made 100 recommendations, nine related to bail.
Reason Party leader and member for the Northern Metropolitan region, Fiona Patten MP chaired the inquiry.
“Sometimes government is so reactive, particularly when it comes to law and order,” Ms Patten said.
“I would absolutely say they [the changes to bail laws] were a knee-jerk reaction,” she said.
Ms Patten is of the opinion that the current bail laws disproportionately affect the disadvantaged, women, and Aboriginal and Torres Strait Islander people.
“Incarceration should be the last resort and that is not the case right now; incarceration is often the first resort,” Ms Patten said.
“We are seeing women escaping family violence, finding themselves homeless, committing a minor, non-violent offence, and we’re jailing them for that.
“The breakup of families, the loss of jobs, the loss of housing – all of those [are] consequences of that incarceration,” she said.
Australian Bureau of Statistics (ABS) data shows that between June 2020 and June 2021, the number of female prisoners in Victoria rose by 2 per cent, and Aboriginal and Torres Strait Islander prisoners by 6 per cent.
The 2020 death in custody of 37-year-old Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, Veronica Nelson is illustrative of the problems created by the current bail laws.
Ms Nelson was denied bail for shoplifting and died three days after being remanded to the Dame Phyllis Frost women’s prison where her repeated requests for medical assistance were ignored.
“She died from heroin withdrawal – not many people in our community die from that these days,” Ms Patten said.
“She should’ve been in hospital,” she said.
Of equal concern is the continued rise of violent offending despite Victoria’s strict bail laws.
ABS data shows that in 2020-21, the number of unsentenced prisoners charged with a violent offence increased by 45 per cent.
According to the 2022 Report on Government Services, throughout 2020-21 more than half of Victoria’s magistrates’ court cases – 56.5 per cent – took six months or more to be finalised.
For an accused on remand for minor charges, that is a long time to wait to be sentenced, especially when the outcome might not be a term of imprisonment.
Sally Vardy is an accredited criminal law specialist who has represented accused persons for close to 10 years and has operated under both the old and new bail legislation.
She said current bail laws lead many of her clients to plead guilty to avoid a long period of remand.
“Even when people potentially have a defence or the case is not particularly strong, the advice you give is ‘you’re not a chance at bail’,” she said.
“In that situation, they will say ‘do what’s going to get me out’,” Ms Vardy said.
In addition to the slow movement of cases through the court, there are lengthy delays in getting access to important support services, leading many to re-offend.
“In my practice, 90 per cent are repeat offenders, usually with the trifecta: homeless, drugs and mental health,” Ms Vardy said.
“It’s an indictment on the system that [clients with] mental health and homelessness and drug addiction don’t have adequate supports or options for treatment available or readily accessible.
“People assume you get supports in custody but the reality of it is – and particularly in the last two years with COVID – on remand, there is nothing,” she said.
It has become clear that society’s marginalised population are placed at a distinct disadvantage when it comes to bail.
“They can’t front up with a $40,000 surety, or grandma’s house [as surety], residential rehab or anything like that,” Ms Vardy said.
“Those sorts of things really do seem to push magistrates into passing that [compelling reasons or exceptional circumstances] test but for recidivist, low-level offenders it is near impossible,” she said.
Ms Patten said there have been missed opportunities for improving our justice system.
“Ensuring someone is not homeless, ensuring someone gets a good education, ensuring that someone has access to health – [addressing] those three elements would empty our prisons out,” Ms Patten said.
“The opportunities to do things differently would achieve the goal of keeping the community safe but also rehabilitating people so that they don’t re-offend.
“Those should be our two first principles and we are failing on both,” she said.