DPP v Nguyen
[2004] VSC 302
•11 August 2004
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1447 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| HOP NGUYEN | Applicant |
---
JUDGE: | HABERSBERGER J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 August 2004 | |
DATE OF JUDGMENT: | 11 August 2004 | |
CASE MAY BE CITED AS: | DPP v Hop Nguyen | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 302 | |
---
CRIMINAL LAW – Bail – Charge of armed robbery – Cause not shown – Unacceptable risk that the accused person if released on bail would re‑offend or endanger the safety of welfare of members of the public – Bail refused – Section 4(4)(c) of the Bail Act 1977.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Atkinson | Kay Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Ms T.K. Hartnett | Victoria Legal Aid, Koulla Roussos |
HIS HONOUR:
This is an application by Hop Nguyen for bail. Mr Nguyen is aged 22 and he has been in custody since 17 May 2004. On that day he was arrested and charged with armed robbery.
Very briefly, the circumstances of that offence, to which Mr Nguyen has now pleaded guilty, were that he armed himself with a syringe filled with his own blood with intent to use it as a weapon in order to rob a victim for money to support his $150-a-day heroin habit. The applicant was in Racecourse Road. He observed a 72 year-old grandmother walking up Racecourse Road on her own, carrying a bag over her shoulder. He followed her for approximately 500 metres into a side street and then approached her and held up the syringe and demanded the elderly lady's bag. The applicant pulled the bag away from the victim and ran off. Other people in the vicinity observed these events and he was chased and eventually caught and held until the police arrived.
Needless to say, the effect on the victim, who thought the syringe was a knife, has been traumatic. She has, I am told in the material, virtually been confined to her home since because of the fear that she has now of being attacked if she were to go out again on her own. Ironically, the victim was returning from a charity where she had gone to obtain a food parcel to keep her going until the next pension day, so that the armed robbery was pointless.
The circumstances are such that s.4(4)(c) of the Bail Act 1977 places the onus on the applicant to show cause why bail should be granted.
The history of the matter is that bail was twice refused in the Magistrates' Court. On 9 August, two days ago, at a committal mention, the applicant was remanded to the County Court on 24 September, and, as I say, he pleaded guilty to the offence, which was perhaps hardly surprising in the circumstances of his apprehension.
I am told that 24 September will only be a mention date, but it is anticipated that a plea date will be given before the end of October, so that it is some two-and-a-half months before the matter will come to court.
The applicant is a 22-year-old man of Vietnamese origin. He left school in his VCE year, has worked intermittently since then, and it would appear that, sadly, he has become involved with heroin use from about that time of leaving school. He has at least one prior conviction for trafficking heroin, but it would appear that for at least two years he had not been apprehended with respect to any offending conduct.
Late in 2003 the family travelled to Vietnam, and I am told by his counsel that he resumed heroin use there, suffered a mental collapse and was repatriated back to Australia. He then spent a month in a psychiatric hospital and was released on 10 May, and then on 17 May, seven days later, committed this offence.
Counsel for the applicant submitted that there is no apprehension that he will not appear if released on bail. There is no history of committing offences on bail. But the very real question that I have to decide, and it is the grounds on which the Crown oppose this application for bail, is that the applicant has to persuade me that he is not an unacceptable risk that if released on bail he would commit further offences whilst on bail, and that he is not an unacceptable risk that if released on bail he would endanger the safety or welfare of members of the public.
The applicant has been in custody since he was first remanded on 17 May, some three months, and there will be another two-and-a-half months or thereabouts before his plea is heard, so I suppose one could say that if bail is not granted he will have been in custody for some six months before his plea. It is the first time he has been in custody and, in his innocence, he revealed to a cell-mate the circumstances of his offence, which has led to him being in danger of assault from other prisoners. Therefore, he has been moved into protective custody, which makes the circumstances of being in remand even more difficult. It is possible that if he had not been in need of protective custody he might have been able to have been moved into the youth unit, which would perhaps have been a much more appropriate place for him to be held. Instead, he is in protective custody with much older men who are predominantly sex offenders.
Counsel for the applicant submitted that if he were granted bail the applicant would have a solid support network around him. He would be able to receive treatment from the Inner West Area Mental Health Service, he having previously attended Origin Youth Health; he would be able to attend Turning Point Drug and Alcohol Service; he could attend doctors for assessment and medication; and he could attend the support worker at the Bail Support Program.
It is suggested that Mr Nguyen would reside with his parents in North Melbourne and that it would be open to me to impose a curfew. The suggestion in the report to the Magistrates' Court by the bail support worker was a 9 p.m. to 6 a.m. curfew seven days a week, except when in the company of one of his parents.
Mr Nguyen has the support of his family, his parents are present in court today, and it is suggested in the material that Mr Nguyen's father would take responsibility for his son's conduct. He has two elder siblings, both of whom are in employment, and there is no criminal history as far as the family is concerned, and no doubt this occurrence is a very distressing one for the family.
The difficulty that I face is, notwithstanding the support network that I accept could be put into place, that this is only intermittent contact that Mr Nguyen would have with supportive expert people, even if he were to attend all of the recommended appointments. My concern is that, given that within seven days of being released from the psychiatric institution he committed this offence, presumably having resumed heroin use, that the same will occur were I to release him on bail.
The circumstances of the cowardly attack on the elderly lady are such that the ground in the Bail Act which requires the applicant to persuade me that he is not an unacceptable risk that if released on bail he would endanger the safety or welfare of members of the public weighs very heavily in my mind.
The onus being on the applicant to show cause, I regret to say that in the circumstances of this sad case I am not persuaded that he is not an unacceptable risk of either re-offending or endangering the safety or welfare of members of the public. Indeed, I am satisfied that there is such a risk.
The matter is complicated by Mr Nguyen's mental state. He is, it would appear, possibly suffering from schizophrenia. Although I am told that all I can do, if I am of the view that I am, is to dismiss the application for bail, I do want to record, and I trust that the Crown will pass this message back to the prison authorities, that if counselling is available for Mr Nguyen in prison, it certainly seems to me to be absolutely essential that he receive appropriate treatment and counselling. It appears that I can do no more than express that view.
For the reasons that I have given, the application for bail is dismissed.
---
0
0
0