Judgment not available in electronic form
[2014] WASC 232
•1 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PHAN -v- WESTERN AUSTRALIA POLICE [2014] WASC 232
CORAM: JENKINS J
HEARD: 20 JUNE 2014
DELIVERED : 25 JUNE 2014
PUBLISHED : 1 JULY 2014
FILE NO/S: MBA 24 of 2014
BETWEEN: VAN HUNG PHAN
Applicant
AND
WESTERN AUSTRALIA POLICE
Respondent
Catchwords:
Criminal law - Bail - Extortion - Doing an unlawful harmful act and weapons charges - Delay - Seriousness of charges - Risk of interfering with witnesses and committing other offences
Legislation:
Bail Act 1982 (WA), s 13, sch 1 pt B, sch 1 pt C, sch 1 pt D
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr T F Percy QC & Mr S Nigam
Respondent: Mr B F Stanwix
Solicitors:
Applicant: Nigams Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Milenkovski v The State of Western Australia [No 2] [2011] WASC 273
Scook v The Queen [2008] WASCA 114
The State of Western Australia v Amoore [2008] WASCA 65
The State of Western Australia v Oates [2004] WASC 214
JENKINS J: (These reasons were delivered in draft form and were edited prior to publication.)
These are my reasons for decision in respect to an application dated 10 June 2014 for an order that the applicant be released on bail on the following conditions:
(1)he reside at his residence situated at 30 Money Street, Perth;
(2)he report to the officer in charge of the Perth Police Station on Mondays, Wednesdays and Fridays;
(3)he provide surety in the sum of $75,000;
(4)he provide a personal undertaking in the sum of $75,000;
(5)he surrenders his passport and not apply for a new one;
(6)he not approach within 1 km of any point of domestic or international departure;
(7)he not contact either directly or indirectly any civilian prosecution witness; and
(8)he not approach within 250 m of the Galaxy Lounge situated at 65 Francis Street, Northbridge.
Senior counsel also made it clear that if I thought that bail could be granted only on other conditions than those proposed, the applicant was prepared to agree to such conditions.
Evidence
The application is supported by the affidavit of Thi Anh Chau, the applicant's mother, sworn 22 May 2014, and the affidavit of Shashwat Nigam, the applicant's solicitor, sworn 18 June 2014.
The applicant also tendered a letter written on the letterhead of Tenement & Mining Services by Dean Scook, dated 26 May 2014.
The respondent opposes bail and relies on two affidavits of Kevin Tee Soo Tan, a police officer, both sworn on 18 June 2014.
The charges
The applicant is charged with the following offences:
Prosecution Number
Charge
Maximum Penalty
81970/2014
Demanding property with threats
14 years' imprisonment
84076/2014
With an intent to harm, do an unlawful act endangering life, health or safety of any person
20 years' imprisonment
81975/2014
Having ready access to both weapon and cash
5 years' imprisonment
81973/2014
Possess firearm with circumstances of aggravation
7 years' imprisonment
81974/2014
Being an unlicensed person possess firearm/ammunition
In addition, the applicant is charged with three counts of possessing controlled weapons, one count of being in possession of a contrivance known as a silencer, three counts of possessing a prohibited drug, one count of possessing drug paraphernalia in or on which there was a prohibited drug or plant, one count of hindering police, one count of possessing stolen or unlawfully obtained property and one count of unlicensed possession of dangerous goods.
The charges are listed for a committal mention hearing on 8 August 2014 in the Perth Magistrates Court. On 5 June 2014, the applicant was refused bail in the Perth Magistrates Court.
The alleged facts
The alleged facts of the first two charges are, in summary, that on a number of occasions between 3 April 2013 and 9 July 2013, the applicant contacted and then met with a witness (the manager) who was involved in the management of a nightclub known as the Galaxy Lounge in Northbridge. Also present at some of the meetings were one or more of the applicant's co‑accused, who are members, nominees or associates of the Comanchero outlaw motorcycle gang (COMCG). The prosecution alleges that the applicant and his co‑accused demanded that the operators of the Galaxy Lounge pay them $10,000 or $8,000 a week in order to ensure the smooth and trouble‑free operation of the Galaxy Lounge. The manager told the applicant and his co‑accused that the business could not afford to pay.
On the evening of 1 March 2014, a number of the applicant's co‑accused attended at the Galaxy Lounge and told the manager that it had been eight months since the demand was placed on her for the weekly payment of $8,000 and it was 'becoming a joke'. One of the co‑accused told the manager that she had until 5.50 pm on 6 March 2014 to contact the applicant to arrange for payment as demanded.
The manager did not comply with this demand and did not contact the applicant as directed.
At about 2.50 am on 9 March 2014, a male person (not yet identified and, at this stage, not alleged to be the applicant but rather to be an associate) rode a white mountain‑style pushbike towards the Galaxy Lounge and left it outside the premises. He went into the Galaxy Lounge. Once inside he lit a homemade incendiary device and threw it up the stairwell towards the main bar area. The premises was occupied by patrons and staff at the time. The device smashed on impact but failed to ignite. The offender then ran out of the club and rode away on the same pushbike. On 15 May 2014, the police executed a search warrant at the applicant's home at 30 Money Street, Perth and found a white mountain‑style pushbike.
The manager of the Galaxy Lounge contacted the police and informed them of the contact she had had with the applicant and his co‑accused. The police then used an undercover police officer (UCO) to investigate the alleged offending. The manager introduced the UCO to the applicant and his co‑accused as the owner of the Galaxy Lounge. Police also obtained a warrant to enable them to intercept telephone calls made from or to one of the applicant's telephones. Recording devices and a camera were also used to record meetings between the UCO, the applicant and the co‑accused. During these meetings and conversations, the prosecution alleges that the applicant and/or his co‑accused made further demands for payment of a weekly amount in order to avoid trouble at the Galaxy Lounge. The UCO made two payments to the applicant's co‑accused, both of $10,000. The applicant was not present at either handover, but the prosecution alleges that the co‑accused who received the payments was in contact with the applicant a short time before each handover and met the applicant a short time after each handover.
The prosecution further allege that when police executed the search warrant on 15 May 2014, in addition to the bike, they found concealed inside an air vent inside a wall in the lounge room of the applicant's home a bag containing a .22 calibre Beretta handgun which was loaded with nine rounds of .22 calibre ammunition. Also, inside the bag were approximately 57 rounds of .22 calibre ammunition and a silencer. The end of the barrel of the handgun was threaded to enable the attachment of a silencer.
At six different locations hidden around the house police located a total of $20,370 in cash, as well as a small amount of drugs, drug paraphernalia and various controlled weapons (eg nunchucks and a large knife).
The applicant denied knowledge of the handgun and ammunition and provided various accounts in relation to obtaining the cash.
The police also located a Blackberry mobile telephone with password protected encryption software. The applicant refused to provide the police with the password. The police also found a number of similar mobile telephones when they searched the premises of the applicant's co‑accused. Similarly, the applicant's co‑accused have declined to give the police the passwords to these mobile telephones. Whilst the police were searching his premises, the applicant picked up a piece of paper and ate it.
Strength of the prosecution case
The prosecution evidence filed in this application includes witness statements, photographs, recordings, transcripts and the contents of the supporting affidavits. The applicant has not filed any evidence concerning the charges. Thus, there is no evidence before me which contradicts or disputes the material in the respondent's affidavits.
The applicant's written submissions make some assertions about the applicant's defences to some of the charges, but they are not assertions on which I am prepared to rely as they are unsupported by any evidence. Further, in some respects, they do not accord with common sense. For example, it is asserted that the weekend before the applicant was charged with these offences, he had numerous people over at his house. The inference being is that one of them must have left the items located by the police at his address. I find it hard to accept that a guest would take a firearm, silencer and ammunition to a social gathering, let alone leave them concealed inside an air vent inside a wall and, apparently, not seek their return.
Therefore, I make an assessment of the strength of the prosecution case on the basis of the prosecution's evidence. On that basis, the prosecution case in respect of the demanding property, firearms, weapons and drug (subject to proof of analysis) charges is strong. The prosecution case in respect of the unlawful act charge is not as strong as it relies more on inferential reasoning.
Likely sentence if found guilty of charges
If found guilty of these charges, the applicant is likely to receive an immediate custodial penalty of significant length. In this respect, it is relevant to say something about the seriousness of these charges. First, the charge of demanding money with threats and that relating to the unsuccessful firebombing of the Galaxy Lounge are very serious. It is important that people can conduct businesses which will succeed or fail on merit, not on whether protection money has been paid to a crime gang. It is inevitable that any sentence imposed on an offender for undermining the confidence that business owners and the community have that business is free from such corruption will be significant. This is especially so if the offending behaviour includes the threat of, or actual violence.
Any sentence imposed for such an offence must aim to be both generally and personally deterrent. Some relevant cases were reviewed by the Court of Appeal in The State of Western Australia v Amoore [2008] WASCA 65.
Secondly, the firearm charges are also likely to result in immediate sentences of imprisonment if the applicant is convicted of them. Possession of an unregistered loaded handgun and silencer, together with possession of drugs and a large amount of cash, will almost inevitably result in an immediate term of imprisonment even if it is likely to be shorter than that for the extortion offence.
Thirdly, the remaining offences are less serious and may not result in immediate sentences of imprisonment.
It is clear that the prosecution will depend on the UCO, recorded and intercepted conversations and a small number of lay witnesses. The applicant must be well aware of the importance of those lay witnesses to the prosecution case.
Applicant's personal circumstances
The applicant is 32 years of age. His parents moved to Perth from Vietnam in 1985. The applicant has four brothers and sisters, all of whom are adults. The applicant's parents, the applicant and his siblings became Australian citizens before 1989. The applicant only holds an Australian passport and he is prepared to surrender it. The applicant and his family have lived in Perth since they immigrated to Australia. The applicant's parents have separated, although the respondent has adduced evidence to show that they remain in close contact. The applicant has extended family members who still live in Vietnam and others who live in Brisbane, Queensland.
The applicant lives at 30 Money Street, Northbridge. He has a girlfriend, but apart from being told, from the bar table, that her family is of some substance, I know nothing about her.
It is not clear to me exactly what the applicant's business or employment is or how he supports himself. His mother's affidavit says that he is a business consultant and that his business is called Emperor Enterprise. She says he helps to support her.
The applicant has tendered a letter on the letterhead of Tenement & Mining Services which is said to be Dean Scook as trustee for Tenement & Mining Services Trust trading as Tenement & Mining Services. Mr Scook states that the applicant commenced consulting to 'companies associated with our group in and around 2011'. He refers to the applicant being a representative of Emperor Enterprises Pty Ltd. I asked the applicant's senior counsel whether that was an incorporated company of which the applicant was the director and shareholder. I was told that counsel believes it is the applicant's 'entity'. However, I have no formal evidence of the existence of Emperor Enterprises Pty Ltd or of the applicant's relationship to it.
Mr Scook says that in late 2013, the applicant introduced his group to 'an investor' that had taken an interest in a gold mining project in South Ghana and requested that Mr Scook's group act to assist him with the project for an interest. It is unclear to me from Mr Scook's letter what the applicant's role is in the project. Neither is it clear to me what qualifications the applicant has which enables him to act as a business consultant. The letter goes on to say that the applicant's work 'is to be charged out at around $125.00 per hour', but it does not say that the applicant has been paid to date or, if so, how much he has been paid.
Mr Scook was convicted of a large number of share trading offences and sentenced to imprisonment for them in 2007. I acknowledge that the offences were committed 10 years before that and that before and after the offending Mr Scook had demonstrated good character. However, the sentencing judge said that Mr Scook's conduct 'amounted to a carefully considered and executed deception'. The sentence was not disturbed on appeal: Scook v The Queen [2008] WASCA 114.
I also note that Detective Tan deposes that he has listened to intercepted telephone conversations between the applicant and a man called 'Dean'. Detective Tan says that there was no mention of gold trading or investment in Ghana or Africa in any of the telephone conversations and that the calls appeared to be 'contrived'. Detective Tan says that neither of the participants discussed any details on the telephone and preferred to meet in person. No context was discussed in relation to the reason for their contact.
Detective Tan further deposes that the surveillance of the applicant has shown that he has a daily routine. It does not include regular time spent at an office or other workplace.
For these reasons, I am not prepared to rely on what is contained in Mr Scook's letter.
Detective Tan deposes that the applicant was very open in his telephone discussions with associates about his prospect of opening a tattoo parlour in Perth and his aspiration to be a tattoo artist. One of the reasons he travelled to Singapore between 19 May and 5 June 2014 was to undertake an apprenticeship with a Singaporean tattoo artist for three weeks.
The evidence which I do accept does not enable me to draw any conclusions as to what, if any, legitimate income producing business or employment the applicant has. Neither am I satisfied that bail is necessary for him to resume legitimate employment either on his own behalf or on behalf of another.
The applicant's mother deposes that she needs the applicant to be released on bail so that he can resume looking after her because she is incapacitated. Her affidavit, in effect, says that the applicant spent about five hours a day, five days a week, looking after her and taking her various places. The respondent's affidavit material put this assertion in issue. At the hearing of the application, the applicant's senior counsel said that he did not rely upon the applicant's mother's affidavit to any significant extent. I think this decision was wise, as given the respondent's evidence, I am left with a real doubt as to whether some of the material in the applicant's mother's affidavit is true. However, I do accept that the applicant has a close relationship with his mother and that he would like to be on bail so that he can help her.
The applicant has a criminal record which consists primarily of Children's Court matters. His record is consistent with the respondent's allegation that as a juvenile the applicant was a member of a gang known as the Embros. In April 1997, the applicant was convicted of unlawful wounding and in January 1999, he was convicted of common assault. In October 1999, he was convicted of assault occasioning bodily harm and in February 2001, he was convicted of causing grievous bodily harm and sentenced to 18 months' imprisonment. In March 2001, he appeared for the first time in the Perth District Court and was sentenced for the offence of fighting in public so as to cause alarm to 3 months' imprisonment cumulative on the 18 months' imprisonment. In March 2001, the Perth Court of Petty Sessions sentenced him for the offence of disorderly fighting to 1 month's imprisonment concurrent. In 2002, he was convicted and fined for resisting arrest and in October 2003, he was convicted and fined $2,500 for unlawful possession. Since then he has only been convicted of three traffic offences.
The respondent has adduced evidence that on two other occasions the applicant was charged with violent offences but that the charges did not proceed because witnesses failed to attend court.
On 4 April 2002, the applicant was arrested and charged with unlawful wounding. It was alleged that he stabbed a security officer in the leg at a nightclub in Northbridge. Detective Tan asserts that 'due to intimidation by [the applicant] and his associates, the victim fled the country and the charge was withdrawn'. This assertion of fact is not put into issue by any evidence adduced on behalf of the applicant.
In the course of searching the applicant's residence on 15 May 2014, police found a decorative frame which had displayed within it a photograph of the applicant dressed in the style of a gangster, with a pistol in each hand, a second photograph of the applicant dressed normally, a newspaper clipping headed 'Youth Gaoled for Nightclub Gang Bashing' with a story about the applicant's imprisonment in 2001, a newspaper clipping headed 'Key Witness Fled Country in Fear' with a story about the alleged victim absconding prior to the hearing of the charge, and a newspaper clipping headed 'Court Rules Out Stabbing Charge' with a story about the withdrawal of the charge. The contents of the frame suggest that the applicant takes some pride in the nature of the charge and the fact that the alleged victim did not attend court to give evidence against him.
On 4 December 2005, the applicant was arrested and charged with assault occasioning bodily harm and common assault relating to an incident outside another nightclub in Perth. Detective Tan alleges in his affidavit that due to witnesses and the victim not being willing to provide evidence for fear of retribution, the charges were withdrawn. Again, this assertion is not disputed by any evidence adduced by the applicant.
Detective Tan goes on to say that he believes that the applicant is currently the leader of a group of young Asian males who are prepared to perform tasks at the direction of the applicant, including violent retribution, against the witnesses in this matter. Again, that allegation is not put in dispute by any evidence. Detective Tan asserts that the applicant is still a member of the Embros.
Legal principles
The proper approach to a bail application was outlined in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. The Court of Appeal said that the jurisdiction to grant bail in the Bail Act 1982 (WA) (the Act) s 13 is to be exercised subject to and in accordance with pt 3 of the Act and the further provisions in pt B, pt C and pt D of sch 1 to the Act.
Part C of sch 1 of the Act sets out the principles governing the grant or refusal of bail. Relevantly, they require me to exercise my discretion having regard to the following relevant questions, as well as to any others which I consider relevant:
(1)whether, if the accused is not kept in custody he may:
(a)fail to appear in court in accordance with his bail undertaking;
(b)commit an offence;
(c)endanger the safety, welfare or property of any person; or
(d)interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
Clause 1 also requires me to consider whether the respondent has put forward grounds for opposing the grant of bail and whether there is any condition which could reasonably be imposed under pt D which would remove the above possibilities or remove the prosecution's grounds for opposition to bail.
The proper construction of cl 1 of the Act is that there is no express statutory presumption for or against bail. The correct approach to the exercise of the discretion is sourced in and guided by the matters in cl 1. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion to grant or refuse bail. I am required to consider and answer the mandatory questions before commencing the weighing and balancing process inherent in the exercise of a discretionary power.
The focus of the questions direct attention to whether there are proper grounds to refuse bail. This is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty. The Act does not place any legal onus on any party to a bail application. However, the consequence of the Act is that in most cases the consequence of the structure of the Act is that bail will have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as in this case, it will often be left to the prosecution to provide the material required to provide a proper foundation for refusing bail.
Discussion
The respondent submits that if the applicant is not held in custody, there is a substantial risk that he may intimidate or otherwise interfere with prosecution witnesses and/or there is a substantial risk that he may commit further offences, more generally. The respondent submits that there are no conditions that could be imposed which would reduce these risks to an acceptable level.
The respondent submits that the risk that the applicant will intimidate or otherwise interfere with prosecution witnesses and/or commit further offences is established by the combination of the circumstances of the present alleged offences and the nature of the applicant's prior conduct.
In respect of the circumstances of the present charges the respondent says that the fact that intimidation is intrinsic to their commission and the fact that they are said to have been committed in coordination with others towards a common criminal goal establishes that there is a substantial risk that the applicant will attempt to intimidate or otherwise interfere with prosecution witnesses if he is released on bail.
In respect of the nature of the applicant's prior conduct, the respondent relies on:
(1)the applicant's prior criminal record for offences of violence;
(2)the applicant's membership of the Embros Gang;
(3)the applicant's association with other people who have criminal records;
(4)the applicant's association with members of the COMCG;
(5)the applicant's possession of the loaded handgun, silencer and controlled weapons;
(6)the applicant's possession of $20,000 cash which is not from an apparently legitimate source;
(7)the applicant's and his associates' possession of Blackberry telephones each of which was protected by password encryption;
(8)the applicant's behaviour in snatching and swallowing a piece of paper before police were able to seize it during their search of his home indicating that he has a willingness to obstruct the course of justice even in the presence of police officers;
(9)the seriousness of the charges;
(10)the likely penalty if the applicant is found guilty;
(11)the importance of the lay witnesses to this prosecution which gives the applicant an incentive to attempt to interfere with them; and
(12)the history of two other charges against him which did not proceed because the main prosecution witnesses did not attend trial.
Coupled with this last consideration is the applicant's possession of the framed memorabilia of one of those prosecutions indicating that he takes some pride in the charge and/or the way in which it came to an end. The prosecution also rely on the fact that the applicant proposed to act outside of the law in seeking retribution against a young man who was said to have assaulted the manager of the Galaxy Lounge on 13 April 2014.
In response, the applicant says that he has not been convicted of a serious offence for over 10 years and there is no evidence that he interfered with the witnesses to the charges that did not proceed. He says that it is impermissible speculation to conclude that he did. He says that he is a legitimate businessman who wants bail so he can attend to his family and business obligations. He says that the charges have not been proved and he is entitled to the presumption of innocence.
The applicant relies significantly on two matters. The first is that there is likely to be a considerable delay before the charges will proceed to trial. The second is that whatever risks have been identified by the respondent can be sufficiently reduced by the imposition of conditions on bail.
In respect of the issue of delay, in Milenkovski v The State of Western Australia [No 2] [2011] WASC 273 [29] ‑ [35] McKechnie J reviewed the principles relevant to delay and an application for bail. After reviewing the cases his Honour said that there is no fixed point at which delay becomes so gross that the interests of justice compel a grant of bail. However, the cases reviewed by McKechnie J also establish that the reasons for the delay can be relevant to the ultimate question as to whether bail should be granted.
In The State of Western Australia v Oates [2004] WASC 214, Roberts‑Smith J also reviewed the authorities relevant to the significance of delay between arrest and trial to a bail application. His Honour concluded that delay could justify the grant of bail and whether it did depended upon all the circumstances, including the length of delay and the nature of the charges. In both Oates and Milenkovski there was considerable delay before the relevant bail application was heard.
In this case the parties are at odds in their estimation of the length of delay between arrest and trial. The respondent estimates that a trial may take place mid 2015 whereas the applicant submits that it is more likely to take place towards the end of 2015. Thus, the estimated delay between arrest and trial is somewhere between 12 ‑ 18 months.
While the likelihood of the applicant spending 12 ‑ 18 months in custody before trial is both relevant and regrettable, my view is that as the applicant was only charged last month it is too early to say that the likelihood or possibility of an extensive delay justifies or is a significant matter weighing in favour of a grant of bail when weighed against the other matters relied on by the respondent. Whether there will be an extensive delay and, if so, the causes of it and how long it will be, are matters which will only be known in some months time. That is when such issues may become more telling in an application for bail.
The second matter relied on by the applicant is that any risk which he poses can be dealt with by the imposition of conditions on his bail. The applicant is even prepared to consider home detention bail.
I have carefully considered the matters put forward by the respondent in opposition to bail. They satisfy me that there are good reasons to conclude that if the applicant is not kept in custody he may interfere with witnesses or otherwise obstruct the course of justice and in doing so commit an offence or endanger the safety, welfare or property of another person. I have carefully considered whether conditions could be placed on his bail which would sufficiently reduce these risks. After that careful consideration I have concluded that there is not.
The applicant's senior counsel submits that the applicant is an intelligent man who would not breach his bail because he would know that if he did so he would likely be caught and if he was caught he would then have no chance of being released on bail. Senior counsel said that the applicant is aware that because he lives in Northbridge and because of his high profile, he will be under police surveillance. Thus, he would not take the risk of breaching his bail. These would be powerful considerations in favour of bail were it not for the uncontradicted evidence which has been presented by the respondent.
The evidence satisfies me that there is a likelihood that the applicant is involved in a criminal subculture and that he is prepared to use violence and intimidation to achieve his ends. The respondent's counsel submits the police cannot watch the applicant or control his behaviour 24 hours a day and that is, in essence, what would be required to sufficiently reduce the risks which the applicant would pose in the community whilst he was awaiting trial. I agree.
I am of the opinion that not even home detention bail would be adequate to mitigate the risk. Home detention bail would restrict the applicant's movements but it would not prevent others from visiting him or him using other means to contact witnesses.
For these reasons, bail is refused.
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