Chu v The State of Western Australia - [2011] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CHU -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 102

CORAM: MURRAY J

HEARD: 14 APRIL 2011

DELIVERED : 14 APRIL 2011

PUBLISHED : 18 APRIL 2011

FILE NO/S: MCS 1 of 2011

BETWEEN: VAN THANH CHU
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail application - Serious offences - Flight risk - Renewed application - New or changed circumstances - Failure previously to adequately present case - Parity considerations

Legislation:

Bail Act 1982 (WA), s 14(2a)

Result:

Bail refused

Category: A

Representation:

Counsel:

Applicant: Mr A D Hills-Wright
Respondent: Mr M Hunter

Solicitors:

Applicant: Gary Rodgers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Goldfinch v The State of Western Australia [2004] WASC 218
Lowe v The Queen (1984) 154 CLR 606
Mercanti v The State of Western Australia [2005] WASCA 254
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

MURRAY J:

Previous proceedings

This is an application for bail, pending the applicant's trial in the District Court for a number of serious drug offences. He says he will plead not guilty, and so it would seem to be fair to assume that it may be some time before the charges may be brought to trial, although no particular information in that regard is provided.
The charges against the applicant result from a substantial investigation conducted with the assistance of a covert police operative, to whom, on four separate occasions, drugs were sold or supplied. There is a statement in evidence by that officer which refers to conversations at the applicant's residence in Balga, all of which are said to have been recorded, and gives a detailed account of the police operative's dealings with the applicant over a period of time.
The Balga house is said by the police to be 'heavily fortified' and equipped with roller shutters, security screens, and surveillance cameras covering the area externally to the house and linked to monitors which allow the area to be observed from inside.
The investigation culminated in a raid by the police upon the house on 29 November 2010 with the assistance of the police tactical response group and organised crime squad officers. A search of the house was conducted, pursuant to a Misuse of Drugs Act 1981 (WA) search warrant. The police say that when they entered the house, the applicant was apprehended, attempting to destroy three mobile phones.
The applicant was apparently living in the house with a woman named Thi Hang Dang. She is said to be a co‑offender and is charged with the same offences as those with which the applicant has been charged. She was present in the house when the search was conducted. In fact, she was in the shower, and in the bathroom the police located 103.5 grams of methylamphetamine under dirty clothing on the floor of the room.
It is alleged that the police found clipseal bags, electronic scales, a quantity of cutting agent and a large sum of money.
I am not told what Ms Dang proposes to do about the charges she faces, and again, I have no information as to how far advanced they are. They are still before the Magistrates Court. If she is to plead not guilty, I presume she and the applicant would be jointly tried in the District Court. Perhaps the need to accommodate both accused persons in a joint trial, if that should be what occurs, might have the capacity to delay the conduct of that trial.
As a result of the investigation conducted, and as a result of the events of 29 November 2010, the applicant has been charged with six offences, all committed at the house in Balga. He is charged that:
(1)On 12 November 2010, he sold a prohibited drug, methylamphetamine. There were 28 grams, or an ounce, of the drug involved, and the sale to the undercover police officer was for the price of $15,000.
(2)On 17 November 2010, he sold a prohibited drug, methylamphetamine. Again in this case, the sale was to the same police officer of approximately 28 grams of the drug at a price of $15,000.
(3)On 23 November 2010, he supplied a prohibited drug, the name of which is usually abbreviated to MDA, to the same undercover police operative. This was a tablet of a drug normally described as ecstasy which, according to the police evidence, the applicant said he could obtain from the Eastern States in considerable quantities. The evidence is that the applicant said the supplier to him would be his brother, who also supplied him with methylamphetamine, and was capable of providing him with heroin.
(4)On 29 November 2010, the applicant supplied methylamphetamine to another, the undercover police officer. In this case, the sale is said to have been of 56 grams, or 2 ounces of methylamphetamine, at a price of $28,000.
(5)On 29 November 2010, the applicant was in possession of methylamphetamine with intent to sell or supply. I presume that charge relates to the quantity of drug found on the floor of the bathroom.
(6)On 29 November 2010, the applicant was in possession of $159,260 reasonably suspected to have been unlawfully obtained. As I understand it, this was the total amount found in various places in the house during the search which was then conducted. I presume that $28,000 of that money was the price paid by the undercover police officer for the drug that he had purchased on that date. That charge is brought under s 428(1) of the Criminal Code (WA). The other charges are, of course, all of offences defined in s 6(1) of the Misuse of Drugs Act.
Relevant to the application for bail is the fact that, in general conversation with the police undercover operative during the course of the investigation, the applicant offered to supply him with a forged motor driver's licence which he said he could obtain, using the police officer's photograph, from a contact he had in a government agency somewhere in the Eastern States.
The evidence before this court is that, when he was arrested, the applicant received some minor injury which required medical treatment. He was later interviewed on video, but apparently made no admissions.
Having been arrested on 29 November 2010, the applicant made an application for bail in the Magistrates Court, before his Honour Magistrate Heaney, on 1 December 2010. Bail was refused, for reasons which his Honour expressed shortly, saying that it seemed that the prosecution case would be strong, the applicant appeared to present a considerable flight risk, and his Honour could not think that any of the conditions proposed, or any others, would stop the applicant from fleeing, if he should so choose.
That application was renewed in this court on 5 January 2011. It was finally heard by Blaxell J on 18 January 2011, his Honour having previously adjourned the hearing to give the respondent the opportunity to provide evidence describing the nature of its case to enable his Honour to make an assessment of the strength of that case.
His Honour dismissed the application and refused to grant bail. He particularly remarked on the strength of the prosecution case. His Honour said:
In fact, the case is so strong that in my view there is clearly a significant flight risk, notwithstanding the antecedents of the applicant and notwithstanding that, if released to bail, he would be living with a surety who has put up the sum of $200,000.
In my view, the proposed conditions are not sufficient to reduce the risk to an acceptable level. In my view, the strength of the case is quite overwhelming and the flight risk would be very considerable, and for those reasons the application for bail would be refused.

The present application - new or changed circumstances

The application for bail is now renewed. It continues to be opposed.
The matter having been dealt with by Blaxell J, the applicant may only advance his case for bail again, in relation to the offences with which he has been charged, pursuant to the Bail Act 1982 (WA), s 14(2a), which is in the following terms:
After the jurisdiction under subsection (1) has been invoked once by an accused in relation to an offence or group of offences for which he is required to appear, it may not be further invoked by that accused in relation to that offence or group of offences unless the accused satisfies a judge that -
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or
(b)he failed to adequately present his case for bail on that occasion.
The applicant firstly relies upon par (a) of the subsection, and asserts that new circumstances have arisen, or the circumstances have changed, since the matter was dealt with by Blaxell J.
In Mercanti v The State of Western Australia [2005] WASCA 254, McLure JA, Pullin JA and Murray AJA agreeing, said:
The parties accepted that the new or changed facts or circumstances must be a material change in relevant facts or circumstances. In order to enliven jurisdiction, the matters referred to in s 14(2a)(a) must be matters that would have been likely, if known to the judge who previously refused bail, to alter the balance in favour of the grant of bail [28].
The evidence before me is that the applicant is now 33 years of age. He came to Australia from Vietnam in 1996, when he was 18 or 19. He is an Australian citizen and holds an Australian passport. He has lived in WA for 2 years and, when he was arrested on 29 November 2010, he was employed as a market gardener in Wanneroo, on the property owned and operated by a Mr Le. Mr Le lives in Carabooda. He is prepared to give a surety undertaking in the sum of $200,000 in support of the bail undertaking proffered by the applicant. If the applicant is released on bail, Mr Le would provide him with accommodation at his home, and the applicant's employment by Mr Le would continue.
The applicant has a relatively minor criminal history. On 13 October 2010, in the Perth Magistrates Court, he was fined for offences of possession of methylamphetamine and possession of a smoking utensil (one means by which the drug may be consumed). Those offences were both said to have been committed on 11 September 2010. He was fined a total of $1,300.
The applicant has been married, but is now divorced. There is one child of the marriage, but it is clear that the child is cared for by his ex‑wife, and he has no close, or indeed any, familial ties to WA.
The applicant relies upon the following new or changed circumstances to permit him to run an application for bail again before this court. There is evidence that he was involved in a motor vehicle accident. It must have been shortly after he came to this country, because there are medical reports provided to him in late 2007 and early 2008 in which there is a reference to the accident having been 'more than 10 years ago'. It seems that in the accident he sustained a fracture of his left hip and his left ankle.
The most useful report seems to me to be that provided to the applicant's general practitioner by an orthopaedic surgeon in Sydney. It is dated 31 December 2007. The applicant was then suffering from osteoarthritis of the left hip as a result of the fracture dislocation. He also has osteoarthritis in his left ankle, and his left leg was described as being wasted and shorter than the right, with limited movement of the left ankle. The applicant was then complaining of continuing lower back pain and left hip pain. It seems that he was prescribed a painkiller and an anti‑inflammatory drug.
On 8 March 2011, the applicant was complaining of worsening pain while he is detained in custody, 'without medication'. It seems that the applicant has been provided with Panadol, but that does not help.
The applicant's solicitor, in an affidavit sworn on 5 April 2011, par 22, says:
The Applicant instructs me that he is currently experiencing severe pain as a result of his injuries. This pain is so severe that he is unable to sleep. The Applicant instructs me that he has sought medical attention at Hakea for his injuries, but that he is not receiving proper treatment.
Counsel's submission in support of the application says that the pain and his incapacity to sleep is causing the applicant 'serious anxiety and depression'. There is, in fact, no evidence of that, and what is lacking in this regard is current medical evidence to provide some precision in relation to the applicant's current medical state and to enable the court to make some assessment as to whether it is capable of being adequately managed in the present environment.
Doing the best I can in the face of this paucity of evidence, it is not clear to me that any new circumstances have arisen or that the applicant's circumstances have changed since January, when his application was dealt with by Blaxell J. I do not know if the applicant originally had medication which ran out; whether it was medication which was prescribed to him; whether, in the ordinary course, it reduced the pain associated with his osteoarthritis; or whether he was ordinarily in receipt of any other treatment. I know only that he was working as a market gardener prior to his arrest, hardly a light occupation, and that he proposes to resume that employment if he is able to obtain a grant of bail.
Nor is there any evidence which enables me to conclude that his pain situation has significantly worsened in the nearly 3 months since his application was dealt with by Blaxell J, whereas that was not the case (because it was not mentioned as a reason in support of the application for bail) in the 7 weeks or so since his arrest, until he appeared before Blaxell J.
However, although I am not satisfied that I have jurisdiction to deal with the application under s 14, were I of that view I would note that there is no evidence to show that the requisite medical treatment cannot be provided while the applicant is held in custody on remand.
In fact, the more likely view is that if the applicant's medical condition is adequately managed by taking prescribed medication, there is every reason to suppose that such a prescription could be issued and filled, to enable him to continue with that course of treatment while in prison.

The present application - failure to adequately present the case for bail

The applicant argues that there is a lack of parity in the treatment of the co‑accused, Ms Dang, and the applicant. I have mentioned something about Ms Dang, who is charged with the same offences as those with which the applicant has been charged. It will be recalled that she was in the shower when the police raided the house in Balga.
It seems that that place is her home, but there is no information as to whether she owns or is purchasing the property, or whether it is a rental property. The police say there is evidence that there is some sort of sexual relationship between the applicant and Ms Dang who is, of course, alleged to be a party to the commission of the offences with which the applicant has been charged; whether as a principal in every case, or whether as a person who has aided the commission of offences by the applicant, is unclear.
There was very little reference to Ms Dang in the Magistrates Court. The prosecuting office apparently thought she was a man. Defence counsel did not refer to her by name, but says that the applicant was permitted to stay at the Balga house, which was said to belong to a friend to whom the applicant refers as 'Auntie'. She is quite a few years older than the applicant. There is no reference in those proceedings to whether or not, at that stage, Ms Dang had been admitted to bail.
Again, there was very little reference to Ms Dang and her situation in the proceedings before Blaxell J. Counsel for the applicant referred to the fact that Ms Dang had been released on bail, and although he did not describe the terms and conditions of that bail, he referred, as I understand his remarks, to a surety undertaking having been provided to support the grant of bail to her, by Mr Le, the person who was proffered as a surety in the sum of $200,000, in support of Mr Chu's application.
In relation to the Balga residence, counsel confirmed that it was Ms Dang's house, and that the applicant was not living there at the time, but 'was visiting'. Whether that was said by the applicant to be on the occasion when he was arrested, or on all the occasions when the undercover police operative dealt with him, is unclear.
Counsel for the respondent said that he had been given to understand that one of the factors taken into account in respect of the grant of bail to Ms Dang, 'was the fact that she had a child and I think she was the sole carer for that child' (ts 11 January 2011, p 4).
The only additional information provided to me is that, at some time, Ms Dang obtained a grant of bail on her own undertaking in the sum of $100,000, with a surety in a like amount. She has been released on condition that she resides at the Balga house, surrenders her passport, undertakes not to apply for another, reports to the police station on Monday, Wednesday and Friday of each week, undertakes not to attend the Burswood Casino, and that she will not leave Western Australia or approach any place of interstate or international departure from the State.
The applicant presented no argument to Blaxell J that the similarities between the cases for bail of both the applicant and Ms Dang were so considerable that if he was to be denied bail, when she had obtained her release on bail, that would leave him with a justified sense of grievance and a justified view that the judicial process and the exercise of the discretion was unfair and insupportable.
That being the case, counsel for the applicant now puts to me, he may invoke the jurisdiction under s 14 of the Bail Act on the additional ground that there was a failure on behalf of the applicant to adequately present his case for bail to Blaxell J. Counsel submits that considerations of parity of treatment should tip the balance in favour of the exercise of discretion by granting bail to the applicant on the conditions proffered.
There is some authority on the point and it is appropriate, I think, to restate the law in relation to the operation of the parity principle in sentencing derived from the leading authority of Lowe v The Queen (1984) 154 CLR 606, and as restated and developed (citing Lowe) in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. In that case, at 301 ‑ 302, Dawson and Gaudron JJ said:
The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. - 03-01405fn008#03-01405fn008 In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. - 03-01405fn009#03-01405fn009 Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co‑offenders in question and their different degrees of criminality.
See also McHugh J at 309, and Kirby J at 335 ‑ 339.

There can, of course, be no cavil with the application of the parity principle in the imposition of sentences upon different offenders for related offences by the same or different judicial officers. That which is demonstrably alike, either in relation to the nature of the offending or in the personal circumstances of the offenders, should, if the result is to be just, attract a broadly similar sentencing disposition. The parity principle in that context will also be served if unalike circumstances in relation to the nature of the offending or the personal circumstances of the offenders attract different sentencing dispositions, each of which is a result properly proportionate to the offending by a particular offender, and properly expresses a measurement of the difference between offenders.
But in the sentencing context, the court is exercising discretion by an instinctive synthesis and the weighing of the relative importance of various relevant factors, operating in aggravation or mitigation of punishment, in the case of each offender before the court.
It is because it is a discretionary judgment which must be exercised that it is appreciated that there will be a range of dispositions in relation to a particular offender which may be different, but all of which may be described as a proper expression of sentencing discretion. It is for that reason that on parity grounds the court will only reduce, within the range of appropriate sentencing discretion, a sentence which it would otherwise have imposed, if the disparity is so considerable as to engender a justified sense of grievance in the offender who received the more severe punishment.
In one sense, similar sorts of considerations, subject, no doubt, to the same overriding proposition that what is involved is a discretionary judgment, might be applied in making a decision about the grant or refusal of bail, and yet the exercise of discretion involved in that decision is, in my opinion, not like the exercise of sentencing discretion.
The accused will either be admitted to bail or bail will be refused. If bail is granted, it will be appropriately conditioned according to the circumstances of the successful applicant for bail and generally according to the circumstances surrounding the alleged offending behaviour. The responsibility and duty of the judge making that decision is to exercise a discretionary judgment imposed upon him or her by the Bail Act, having regard to the guidance provided by the clauses of Pt C of Sch 1 to the Bail Act.
In my view, if, at the end of that process, for example, the judge's decision is that bail should be refused and that is a proper exercise of the discretionary judgment, the judge may not shrink from that outcome and admit the applicant to bail because some other judicial officer has taken the view that that is the appropriate decision in relation to an alleged co‑offender. Primarily, the decision‑making process is to make a judgment about acceptable management of the risks of non‑attendance or further offending when an accused person is in custody on remand.
I can see no relevant disparity or injustice if one judicial officer decides that an alleged offender must be detained in custody, having regard to all material considerations, and another takes the view that an alleged co‑offender, in apparently similar circumstances, may be admitted to bail. Both decisions may reflect a proper discretionary judgment. If one does not, it may be corrected on appeal, but the judicial officer who comes to the task second may not shrink from the responsibility of making the judgment which he or she considers to be correct because a different judicial officer appears to have taken a different view of the circumstances of the case so far as they apply to a related accused.
The argument relied upon here has been presented once before, to Roberts‑Smith J in Goldfinch v The State of Western Australia [2004] WASC 218. Reliance was there placed upon two Victorian decisions which appeared to turn on parity considerations. After a thorough discussion, his Honour expressed his conclusion at [69] and [70], as follows:
If the principle is taken to be that justice requires equal treatment of like cases but due allowance is to be made for relevant differences, then it can be accepted as applying to bail applications as much as to any other matter requiring judicial determination. However, it seems to me that it is likely to have practical effect very rarely indeed on an application for bail for the reasons acknowledged by Gillard J in Abbott and those to which I have adverted above.
Furthermore, to succeed on a bail application based to any degree on a parity argument, the applicant would have to demonstrate that all relevant factors as between his or her case and that of the co-offender were, in fact, essentially the same and there were no relevant distinguishing features. Even so, bail would not be granted unless it were otherwise appropriate having regard to the statutory criteria. It could never be the case that an applicant should be granted bail because his or her co-accused was, in circumstances in which the statutory criteria militated against it for the applicant.
If I have understood his Honour's expression of his views correctly, Roberts‑Smith J was not attracted to the proposition that, as in a sentencing case, bail might properly be granted to an offender where the view of the judicial officer is that it should otherwise be refused, because bail was granted by another judicial officer to a co‑accused, whose circumstances appear similar to those of the accused before the court.
In any event, it seems to me that the applicant in this case has not discharged the onus resting upon him to satisfy me that had reliance been placed upon the grant of bail to Ms Dang, before Blaxell J, in addition to the other matters relied upon before his Honour, the balance would have been tipped, in the proper exercise of discretion, in favour of the grant of bail. I observe that there is little information before the court to show whether or not the circumstances applicable to Ms Dang's case for bail were substantially the same as, or significantly different from, the circumstances of the applicant's case. If I have jurisdiction upon this ground, I would not be persuaded to exercise it.

My final conclusion

However, having reviewed the evidence bearing upon the exercise of the discretion to grant or refuse bail, pursuant to the provisions of cls 1 and 3 of Pt C of Sch 1 to the Bail Act, it is convenient to briefly describe why, if I were satisfied that I had jurisdiction, I would exercise the power to refuse the grant of bail, despite the fact that it appears reasonable to suppose that the applicant may be detained in custody on remand for perhaps a further 6 months or more. I understand that he has not been committed for trial, and that the disclosure process is not complete.
The considerations which would weigh heavily with me are essentially those dealt with in summary form by their Honours, Magistrate Heaney and Blaxell J. The charges are of serious offences which, if they may be proved to the required standard, would establish a significant process of drug trafficking in methylamphetamine over an extended period of time in circumstances which might obviously support the conclusion that the offending was highly profitable. The prosecution case is overwhelming in its strength, and the nature of the applicant's proposed defence is not disclosed.
If the applicant is convicted, despite the fact that he is, to all intents and purposes, almost a first offender, he would undoubtedly face a very substantial term of imprisonment.
So far as the applicant personally is concerned, there is nothing in his antecedents which counts against him, but the question is whether the applicant may fail to appear to answer the charge, despite Mr Le's generosity in proposing to act as a surety in the sum of $200,000, a sum which would be liable to be forfeited if the applicant should abscond. There is nothing to hold him to WA, and he obviously has a supportive series of connections in NSW.
Further, he might, if released on bail, decide that he should raise what money he could by committing further offences of drug dealing, thereby endangering the welfare of persons who might deal with him. These are the grounds advanced by the prosecutor for opposing the grant of bail, and they have force.
The question then would be whether any conditions might be imposed which might sufficiently remove the dangers to which I have adverted and the grounds for opposition advanced by the respondent. In my opinion, the court could have no confidence that that is so.
The applicant says that he would accept that he should give a personal undertaking in the sum of $50,000. I have already mentioned that it is proposed that Mr Le would be an acceptable surety in the sum of $200,000. So much may be accepted. Mr Le would provide the applicant with accommodation and employment. I presume that it is intended that Mr Le would keep a close eye on the applicant and immediately report his absence to the authorities. The applicant proposes to report to the police three times a week, on Monday, Wednesday and Friday. But even so, the applicant seems to be a person who could readily lose himself, if he was so minded, and if he was prepared to cause Mr Le to sacrifice $200,000.
The applicant promises to stay in WA. He will give up his passport. He promises not to seek to obtain a new one. He promises not to go anywhere from which he might leave WA. But the imposition of such conditions would not, by themselves, secure his continued presence in this State, or that he would attend to take his trial. As I have said he has no links here. He has a support mechanism in NSW. He is said to know people who may forge official documents and, in any event, the court is not so naïve as to suppose that a determined individual may not leave, not only WA, but also the country, without official papers.
It was for those reasons that I refused the application for bail.