Ly v Sekoa
[2016] VSC 688
•25 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0060
IN THE MATTER of an Application for Bail by Trang Ly
Between:
| Trang Ly | Applicant |
| and | |
| Senior Constable Adam Sekoa | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2016 | |
DATE OF JUDGMENT: | 25 May 2016 | |
CASE MAY BE CITED AS: | Ly v Sekoa | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 688 | |
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CRIMINAL LAW – Application for bail – Applicant charged with trafficking drugs of dependence (heroin and methyl-amphetamine), possession of drugs of dependence (heroin, methyl-amphetamine and cannabis) and dealing with property suspected of being proceeds of crime – Applicant in a “show cause” position – Whether, if granted bail, applicant would present an unacceptable risk of committing an offence while on bail – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A. Furstenberg | Lewenberg and Lewenberg Solicitors |
| For the Respondent | Mr P. Ferdinands | Victoria Police |
HIS HONOUR:
Introduction
This is an application for bail by Trang Ly (“the applicant”).
Ms Ly is charged with numerous drug-related offences including trafficking in drugs of dependence (heroin and methyl-amphetamine), possessing drugs of dependence (heroin, methyl-amphetamine and cannabis) and dealing with property suspected of being the proceeds of crime.
Ms Ly has been in custody since 13 May 2016. The same day, she was refused bail in the Sunshine Magistrates’ Court on the basis that she had failed to show cause why her detention in custody was not justified.
Ms Ly is due to face a summary case conference in the Magistrates’ Court on 22 June 2016. It is expected that any trial would not be listed in the County Court until at least the end of this year.
For reasons that follow,[1] I would grant bail.
[1] I delivered detailed ex tempore reasons when granting bail. At that time, I indicated I would publish revised reasons at a later date. These are those reasons.
The allegations and charges
The circumstances giving rise to the charges are that Ms Ly and her boyfriend, Jason Huynh (“the co-accused”), were pulled over in a car in a routine intercept by police shortly after midnight on 13 May 2015. The car was driven by Mr Huynh, who has a recent prior conviction for trafficking in a drug of dependence. He also had an expired probationary licence.
The car and the occupants were searched. Drugs of dependence (namely, heroin and methylamphetamine) were found, as were scales. There was also a notebook containing information suggestive of drug trafficking. Police seized over $6,000 in cash and an ice pipe from Ms Ly’s handbag.
While in police custody, Ms Ly received an SMS message on her phone that appeared to relate to drug trafficking.
The applicant’s personal circumstances
Ms Ly was born on 7 April 1992 and is 24 years old. She was born in Indonesia and immigrated to Australia as a baby. She completed Year 12 and has worked as a beauty therapist in the past. Her previous partner of some years passed away late last year. Ms Ly has a six-month-old child, whom she was breast‑feeding up until her arrest. She has now been in custody since 13 May. In the meantime, her child has been in the care of her parents who have put the child on formula. Ms Ly wishes to resume breast‑feeding if she is to be granted bail.
It is proposed that, if released on bail, Ms Ly will live with her baby at her parents’ house in Delahey. Her family members support this arrangement and are prepared to provide financial support to her and her baby.
Ms Ly has no prior criminal convictions.
The application is opposed
Mr Ferdinands, who appears on behalf of the informant, opposes the application on two bases.
First, it is submitted that Ms Ly has failed to show cause why her detention in custody is not justified.[2]
[2] See s 4(4)(d) of the Bail Act 1977 (Vic).
Secondly, it is submitted that there is an unacceptable risk that Ms Ly would commit an offence if released on bail.[3] This submission, at least as put in the informant’s affidavit filed in opposition to bail, was based on two considerations. The first was that the co‑accused has an extensive criminal history of drug offending; that there was a belief that he and Ms Ly have a significant relationship; and that both are unemployed. The second consideration was that there is a belief that Ms Ly is the primary offender in this matter, given that the money that was seized and the drug trafficking paraphernalia were found in her handbag.
[3] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
At the hearing this morning, Mr Ferdinands conceded, quite fairly and properly in my view, that there is a very high likelihood, perhaps even a certainty, that, if convicted, given her age, lack of prior convictions, personal circumstances and the nature of the charges against her, Ms Ly would not receive a custodial sentence or that, at the very least, if she were to receive a custodial sentence, such sentence surely could not exceed the ten days or so she has already been in custody if combined with some other non‑custodial style of order.
The applicant’s submissions
Mr Furstenberg, who appeared for Ms Ly, concedes that his client is in a “show cause” situation, since she is charged with trafficking in a drug of dependence.[4] Nevertheless, he submits that such cause is shown by a combination of the following factors.
[4] Pursuant to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
First, Ms Ly is only 24 years of age. Secondly, she has never been in custody before. Thirdly, she has no criminal history whatsoever. Fourthly, she needs to take care of a six-month-old baby, including breast feeding that child. Fifthly she has stable accommodation available with her parents and wider family. Sixthly, she has strong family and financial support from both her parents and her brother. Seventhly, Mr Furstenberg submitted, and, as I indicated earlier, Mr Ferdinands conceded, that there is a high likelihood – in fact, a near certainty – that, even if she were convicted of all of the alleged charges, she would not be sentenced to a term of imprisonment.
Additionally, there is the question of delay. Mr Furstenberg submitted that a contested hearing might be listed in September, but that there may well be even further delay than that because it is likely that, if there were a contested hearing, there would need to be analysis of the drugs seized and history shows that drug analysis can take many months to be returned and ready for court. Accordingly, it is reasonable to assume that a contested hearing might be well beyond September of this year.
Mr Furstenberg also informed the court that, on his instructions, there are defences to the charges at least in some respects, including an explanation for the money and what he submits would be difficulties of proof with respect to the trafficking charges at least.
Proposed bail conditions if bail were to be granted
Both Mr Ferdinands and Mr Furstenberg made submissions on what might be appropriate conditions of bail in the event that I were minded to grant bail. Such conditions also might ameliorate the risk of committing an offence if released on bail.
Mr Furstenberg also indicated that, in general, his client would be amenable to any conditions thought fit by the Court, and he went on to make submissions about the appropriateness or otherwise of some particular conditions.
Consistently with the points made by the informant in his affidavit, Mr Ferdinands submitted there should be a condition requiring abstention from using and possessing drugs. Mr Furstenberg accepted that was an appropriate condition. So do I.
Mr Ferdinands submitted that there should be a curfew between 7:00 p.m. and 7:00 a.m., given that the alleged offences occurred around midnight. Mr Furstenberg submitted that a curfew would be appropriate but that it should be between 10:00 p.m. and 7:00 a.m. His submission was that it is appropriate that a person of Ms Ly’ age, being only 24, should be allowed, as part of her rehabilitation and her general lifestyle, to go out, for example, for a meal; and to have to return by 10:00 p.m. would be a more reasonable time. I accept that submission.
Mr Ferdinands submitted there should be a condition requiring Ms Ly not to associate with the co‑accused. Mr Furstenberg agreed that was a sensible condition. Mr Huynh is presently in custody. His prior criminal history involves drug trafficking. It appears from that same history that, if he has committed any offence, it will have been in breach of an existing community corrections order (“CCO”) imposed in March of 2015 for 18 months. In those circumstances, Mr Ferdinands conceded that it is very unlikely that the co‑accused would be on bail in the near future and, indeed, it is also very likely that, if he were convicted, he would be sentenced to a term of imprisonment for the offences for which he is charged. All of this means that, in the short term, it is unlikely that there would be any association, at least on the outside, between the applicant and the co‑accused. It also means that the risk that the informant was concerned about – namely, that association between the co-accused and the applicant giving rise to possible further offending – is non-existent at the moment.
Mr Ferdinands also submitted, and Mr Furstenberg agreed, that there should be condition requiring reporting to a police station.
Conclusions and orders
In all the circumstances, I am satisfied that cause is shown for the reasons advanced by Mr Furstenberg and given the concessions made (sensibly) by Mr Ferdinands.
Further, I am not satisfied there is an unacceptable risk that Ms Ly would commit offences if released on bail. That was the only form of unacceptable risk that was relied on by the informant. It should always be borne steadily in mind that it is not a question of there being no risk; rather, it is a question whether there is an unacceptable risk. It is also important to understand that it is the prosecution who must establish that there is such an unacceptable risk. In this case, not only am I unpersuaded that there is an unacceptable risk of the applicant committing any further offences if granted bail, but I am positively satisfied that any such risk that there is, is not unacceptable.
Accordingly, cause having been shown and there being no unacceptable risk, Ms Ly is admitted to bail on her own undertaking, with the following conditions:
1.The applicant is to abstain from possessing or using a drug of dependence.
2.The applicant is to reside at [her residence] in Delahey in the State of Victoria (“her residence”).
3.The applicant is not to leave or be absent from her residence between the hours of 10:00 p.m. and 7:00 a.m., unless in the presence of one or other of her parents, and is to present herself to the front door of her residence when requested by police for compliance checks.
4.The applicant is not to associate with the co-accused, Jason Huynh.
5.The applicant is to report to the officer in charge (or his or her nominee) of the Keilor Downs Police Station each Monday between 8:00 a.m. and 6:00 p.m.
6.The applicant is to appear at the Magistrates’ Court at Sunshine at 9:30 a.m. on 22 June 2016 and thereafter as directed by that court.
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