Are tighter bail laws harming the vulnerable? A Bendigo criminal lawyer questions their effectiveness

A 20-year-old spent a week in the Bendigo police station after missing his court dates. Bendigo lawyers are concerned tougher bail laws are resulting in vulnerable people ending up in custody for longer.
A 20-year-old spent a week in the Bendigo police station after missing his court dates. Bendigo lawyers are concerned tougher bail laws are resulting in vulnerable people ending up in custody for longer.

WHEN a 20-year-old central Victorian man’s car broke down, he missed his court date.

He was scheduled to attend the Bendigo Magistrates’ Court after being charged with making a threat to kill over the phone against a man while he was in a rage – a threat described as compulsive.

Living in a rural location, he missed his second court date due to the anxiety and depression he suffers from extreme childhood trauma.

He was taken into custody for breaching bail, and was denied bail, spending seven days in the cells at a police station where he encountered a number of violent offenders also on remand.

It was his first time in custody and he experienced intimidation and threats.

When he ended up before the court, he was given a 12-month community corrections order with treatment for anger management.

There was no prospect of time in custody for his sentence, yet he spent a week in custody regardless.

Since bail laws were tightened earlier this year, an offender must be refused bail – regardless of circumstances – if a magistrate believes they are a risk of failing to appear in court.

The law was among those introduced following the Bourke Street car attack, yet lawyers are increasingly concerned they are sweeping up minor offenders who would not normally spend time in custody, while having little effect on serious offenders.

Bendigo criminal lawyer Luke Docherty, who acts as a duty lawyer, said having people spend short periods of time in custody was rarely productive.

“People rarely come out of custody better than when they went in,” he said.

“We are now seeing more and more people that wouldn’t otherwise be in custody having to spend time in cells.

“People are ending up in custody for simple sorts of things like shop thefts, failing to answer bail.

“The laws are designed to stop violent and dangerous people from offending while on bail, but what we’re finding is that it is catching more vulnerable people who don’t deserve to be in custody.”

Towards the end of every court day, the ‘failed to appears’ are read aloud in the Bendigo Magistrates’ Court. There are usually at least a few, and warrants are issued. They will mostly end up in custody too, pushing the number of people on remand in Victoria ever higher.

Since April 2013, the number of people on remand in Victoria has increased by 150 per cent.

With law and order set to play a dominant role in the upcoming state election, it appears unlikely this trend will be reversed.

Opposition leader Matthew Guy released a “three-point plan” for bail reform, which includes the presumption of remand for violent offences and the reinstatement of the offence of breaching bail by juveniles.

The third point – “one strike and you’re out” for breaching bail – would mean anyone who breaches bail would end up on remand, regardless of their personal situation.

Mr Docherty said there was no need to reintroduce breaching bail by juveniles because the youth crime rate has been dropping.

From 2009 to 2017, the number of children found guilty of offences in Victoria has fallen from 6000 to 2800 per year.

The bail changes brought in by the Andrews government made Victoria’s bail laws the “most onerous” in Australia. They include giving police power to remand a person for 48 hours until a court is available.

In the Bendigo Magistrates’ Court on Monday, a shop thief appeared in custody after being arrested on Friday. Rather than risk having bail refused again, she pleaded guilty without any legal advice.

She received a non-custodial sentence.

Mr Docherty said this would become increasingly common as offenders face having their bail refused for minor offences, when they would likely avoid further time in custody if they plead guilty.

“They may have a viable defence, but they plead guilty just to try and get out of custody,” he said.

The laws came into effect after a Bail Review was completed by former Director of Public Prosecutions and Supreme Court Justice Paul Coghlan. He made a range of recommendations which the government committed to implementing.

In announcing the new laws, Victorian attorney-general Martin Pakula said making it more difficult for all offenders to get bail would improve “community safety” .

“Strengthening the bail tests will ensure that risk to community safety is given a higher priority when deciding whether to grant bail,” he said.

Victoria is already experiencing a further backlog in the justice system, which is expected to worsen as further laws take effect from July 1.

According to the Australian Bureau of Statistics, there has been a 2 per cent increase in the number of defendants finalised in Victorian courts.

And more than one-third of the of the male prison population is now on remand, awaiting sentence.

To prepare for a further jump in the number of prisoners in Victoria, the state government will build a 700-bed jail at Lara – one of a range of measures to come into effect in the coming years.

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