Dinh v Director of Public Prosecutions

[2015] VSC 318

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0085

THANH VAN DINH

v  

THE DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	Bongiorno JA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2015
DATE OF JUDGMENT:	1 July 2015
CASE MAY BE CITED AS:	Dinh v DPP
MEDIUM NEUTRAL CITATION:	[2015] VSC 318

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CRIMINAL LAW – Application for bail – Application refused – Bail Act 1977, s 4(2)(aa)(i)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Albert	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Mr I Hill QC Mr M Cookson	Balot Reilly Lawyers

HIS HONOUR:

1. In January of this year Thanh Van Dinh was charged with four offences:  two of trafficking in a large commercial quantity of prohibited drugs, amphetamine and heroin;  and two other charges of comparatively much less significance:  possession of ammunition and possession of pepper spray.  The quantities concerned with the first two charges were 5 kilograms and 1.1 kilograms of heroin and amphetamine respectively.  Mr Dinh has been in custody since his arrest and now seeks bail pending his committal and, if committed, his trial.

1. The Crown case against Mr Dinh is based on both evidence of possession of the drugs concerned and evidence of his being involved in trafficking those drugs to undercover police officers through intermediaries. The Crown will doubtless rely on ss 5 and 73(2) of the Drugs, Poisons and Controlled Substances Act 1981 in support of its case.  There is also evidence that, in recent times, Mr Dinh has banked substantial amounts of money without any apparent lawful source for that money.

1. Although Mr Hill QC, for Mr Dinh, argued that the Crown case had a number of weaknesses and that, in particular, there was no direct surveillance evidence of trafficking by Mr Dinh of the drugs alleged, I am satisfied that the Crown case is not in any sense weak.  If the evidence is ultimately elicited as the Crown expects and submits it will be, there must be a reasonable possibility of the accused being convicted.  I regard the Crown case as being of significant strength.  Two of the charges Mr Dinh faces carry maximum gaol terms of life imprisonment.

1. In May of last year, Mr Dinh pleaded guilty to having committed three drug offences in 2010:  trafficking heroin, trafficking methylamphetamine and the possession of heroin.  He was sentenced by his Honour Judge Taft in the County Court to an aggregate sentence of three months’ imprisonment, and placed on a two year community corrections order.  This sentence was tailored by his Honour to assist Mr Dinh to tackle his drug habit, a task that he has evidently failed to undertake or at least failed to complete successfully.  This was notwithstanding that a clinical counsellor had assessed him as suitable for admission to an intensive inpatient program for that very purpose.  He apparently failed to accept the opportunity open to him in this regard, just as he subsequently failed to take other such opportunities whilst in prison on remand for these offences.  Having regard to the charges Mr Dinh faces, he must demonstrate exceptional circumstances to obtain bail.  The principal matter relied upon by him as contributing to the proof of exceptional circumstances (and it appears not to be in dispute) was that, if he is committed for trial, that trial will not take place until late next year, meaning that he will have been in custody for about 22 months before he is tried.  This unfortunate state of affairs is not of Mr Dinh’s making, but is due to the lack of resources in the investigative and judicial processes.  Regrettably, perhaps, it is not in the true sense exceptional on its own in this case.  Delays of this length, particularly in complex cases, are not unusual.

1. Mr Hill sought to establish the exceptional circumstances that he must prove by calling in aid a number of other matters that, he argued, when added to the delay referred to, constitute those circumstances.  He referred to his client’s parental responsibilities to his two small children and the absence of their imprisoned mother, his willingness now to undertake an immediate intensive rehabilitation course for his drug habit, his ability to finance (through a friend) the not inconsiderable cost of that course, his ability to produce a $50,000 surety and his compliance with past bail conditions.  Mr Hill referred to a number of other cases in this Court in which judges have found the existence of exceptional circumstances in cases involving delay, even delay less than that applicable in this case.  Each such case, of course, turns on its own facts.  That a delay might be long, even as long as in this case, does not automatically create the exceptional circumstances required for bail to be granted.

1. The Crown, in response to Mr Hill, referred to Mr Dinh’s failure to take advantage of Judge Taft’s leniency in permitting him to tackle his drug addiction last year.  It pointed to the facility said to be available in the corrections system for Mr Dinh now to undertake a drug rehabilitation process, which, it seems, he has started, in one respect at least, since his incarceration in January.

1. I have considered all of these matters and, also, the right of a person charged with a serious offence to be tried without unreasonable delay, as required by s 25(2)(c) of the Charter of Human Rights and Responsibilities Act 2006, a provision referred to by Mr Hill.  Having done so, I conclude that Mr Dinh has not demonstrated the exceptional circumstances required for him to be released on bail at this time and, accordingly, his application for bail is refused.

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