Re McLaughlin [2024] VSC 706

• Application for bail by Aboriginal woman charged with multiple violence offences – considered requirement under s.3A Bail Act 1977 (Vic) to take into account issues related to applicant’s Aboriginality.
• [43] The consideration of these factors is necessarily an involved process. It requires the decision maker to contemplate what the historic and ongoing overrepresentation of Aboriginal and Torres Strait Islander people in custody means for the individual before them. It also requires the decision maker to contemplate the specific circumstances of the individual within the broader context of their cultural identity and to view their circumstances through that lens. The Bugmy Bar Book provides carefully researched materials that speak to the significance of this cultural identity on every aspect of the individual and their application.
• Referred specifically to chapters ‘Impacts of Imprisonment and Remand in Custody’ and ‘Aboriginal and Torres Strait Islander Stolen Generations and Descendants’: at [49]

[49] As noted by both parties, this application is subject to the show compelling reason test. Although it is conceded by the respondent that the applicant has demonstrated a compelling reason justifying her release on bail, I would have considered that this threshold was met in any event. Ms McLaughlin has never served a term of imprisonment and has no recorded convictions. It is therefore very unlikely that she will receive a sentence that exceeds the period on remand and this is a compelling factor. Further, I take into account that discrimination has pervaded the lives of Aboriginal people and that incarceration has a cyclical impact on their social and emotional wellbeing. I have also taken into account the challenging circumstances that Ms McLaughlin has faced in her life, especially an involvement with foster care from a very young age and an upbringing riddled with trauma. Additionally, her offending appears to coincide with a deterioration in her mental health, which provides yet another compelling reason for placing her with supports rather than behind bars. Ms McLaughlin is also a direct descendant of the Stolen Generation and it is important to acknowledge the impact this may have on her. For example, a recent study of the Australian Institute of Health and Welfare has explored the lasting impacts on the descendants of the Stolen Generation as compared to Aboriginal and Torres Strait Islander people without any experience of being removed, which included a finding that descendants are 1.5 times as likely to have been arrested in the last five years and 1.3 times as likely to have poor mental health.