Nguyen v Director of Public Prosecutions
[2021] VCC 1758
•3 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00328
| Tony NGUYEN | Applicant |
| v | |
| Director of Public Prosecutions | Respondent |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2021, 27 October 2021 | |
DATE OF RULING: | 3 November 2021 | |
CASE MAY BE CITED AS: | Nguyen v DPP | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1758 | |
APPLICATION FOR BAIL
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Subject:
Catchwords:
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Bail Act 1977 (Vic)
Cases Cited:Christopher Rodgers v The Queen [2019] VSCA 214; Re Alsulayhim [2018] VSC 570; Re Cevlan [2018] VSC 361; Re Diab [2020] VSCA 196; Re Ashton [2020] VSC 231; Re Tofaris [2021] VSC 249.
Ruling: Application for bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. O’Toole | Office of Public Prosecutions |
| For the Respondent | Mr C. Pearson | Theo Magazis Lawyers |
HIS HONOUR:
1The applicant is charged with:
· Two counts of negligently dealing with proceeds of crime, namely a Mercedes-Benz motorcar and an Omega watch;
· Two counts of being a prohibited person in possession of a firearm, namely a Browning semi-automatic pistol and a Smith & Wesson revolver;
· Two counts of unlicensed and insecure possession of ammunition;
· Two counts of knowingly dealing with proceeds of crime, namely $95,090 and $150,505 in cash;
· Four counts of trafficking a drug of dependence; and
· Seven counts of possessing a drug of dependence (four charged in alternative to trafficking charges).
2He was arrested on 25 March 2020, charged and remanded in custody.
3On 17 February 2021, he was committed to stand trial.
4On 1 September 2021, a case conference was conducted in this Court.
5The matter is not yet listed for trial.
6The applicant has not previously applied for a grant of bail.
Bail Test
7I am required to refuse bail unless satisfied a compelling reason exists that justifies a grant of bail.
Alleged Offending
8On 25 March 2020 police arrested the applicant at the Avani apartment building at Box Hill.
9They searched one of the Avani apartments, its related storage cage and a Mercedes-Benz, as well as a Burwood apartment.
10In the Avani apartment, which it is alleged the applicant occupied, they found $92,540 in cash in a safe in the master bedroom and $2550 in a pair of tracksuit pants. They also found some white rock, believed to be heroin, in the bedroom.
11In the storage cage, allegedly used by the applicant, they found a backpack which contained prohibited drugs, glass pipes and snap lock bags together with a loaded Browning semi-automatic pistol and an empty magazine.
12At the Burwood apartment, allegedly occupied by the applicant’s girlfriend, they found a revolver and ammunition in one safe and $150,505 in another safe.
13During their searches police also found traffickable quantities of:
(a) cocaine – 23.5 g;
(b) heroin – 7 g;
(c) methylamphetamine – 64.1 g;
(d) 1, 4 Butanediol – 335.6 g;
and smaller quantities of:
(e) MDMA – 1.7g;
(f) MDA – 2 g; and
(g) Buprenorphine – 0.5 g.
14No firearms, drugs or cash were found in the Mercedes-Benz which is alleged to be proceeds of crime.
15When police arrested the applicant, he told them there was “ice” and $80,000 in cash in the apartment.
16When police interviewed him, the applicant said he lived at a Vermont address. He said his ex-girlfriend lived at the Burwood apartment and that he had not been there since the Chinese New Year. He denied any knowledge of the revolver and cash found at her apartment.
17After the interview he was charged and remanded in custody.
Criminal record
18The applicant has prior convictions in the Magistrates’ Court, for drug trafficking and possession in 2008 and 2017, being a prohibited person in possession of a firearm and possession of ammunition without licence in 2008, and proceeds of crime offences in 2008.
19On 19 October 2018, in this court, I sentenced the applicant to 8 months and 28 days imprisonment with an 18 month Community Corrections Order for negligently dealing with property suspected of being proceeds of crime and possession of drugs. He had spent 533 days in remand custody until his sentence.
20When police arrested the applicant at the Box Hill apartment he was the subject of the Community Correction Order, which had commenced in July 2019.
Applicant’s Background
21The applicant was born on 24 November 1986 in Australia and is now aged 34 years. He is an Australian citizen and holds an Australian passport.
22He has one sibling, an older sister, Julie, who appeared at the hearing.
23The applicant had an unstable childhood marked by his parents quarrelling and mother’s mental health problems. His parents separated when he was ten years old and he, with his sister, then lived with his mother.
24He completed Year 10 at school and then worked for a biofuel company from 2004 to 2009. He last worked between 2014 and 2015, labouring at a garage.
25The applicant has a near 20-year history of substance abuse. When he was a teenager his sister’s then boyfriend was using and selling heroin. He introduced both the applicant and his sister to the drug. Over the years the applicant has also regularly abused ecstasy and crystal methamphetamine.
26His criminal record suggests he has trafficked drugs to make money and to get drugs for himself.
27The applicant has had a period of enforced abstinence in remand custody. He believes he is now physically and mentally well enough to embark on long-term rehabilitation.
The Cottage
28On 28 July 2021, he was assessed as suitable for admission to a residential drug rehabilitation program at “The Cottage” at Shepparton.
29Aaron Gilhooley is the operations manager of The Cottage.
30He gave evidence at the hearing.
31He told the court there are 9 staff and 12 residents.
32The residential program comprises four stages for 16 weeks. At the end of the program residents can move to transitional housing next door at “the Centre” or, if they have other accommodation available to them, they can move to it.
33Classes are conducted by Zoom for those wishing to continue the program after the residential component is completed.
34Drug screens are conducted twice weekly. There is also random testing done.
35The financial arrangements are;
(a) a $5000 deposit;
(b) $2000 for assessment and court appearance; and
(c) $500 a fortnight for the residential program, usually deducted from Centrelink payments.
36When assessed for the program, the applicant expressed a desire to be a better person for his parents and his family, particularly his newly born nephew, motivates him to beat his drug addiction.
37He has paid the deposit and the assessment and court fees.
38The Centre will;
(a) facilitate the appearance of a resident at court by taking the resident to the court, if it is to be in person; or by Zoom from the Centre, if the appearance is to be conducted remotely;
(b) facilitate reporting to police, noting that one current resident is required to report daily;
(c) notify the informant;
(i)if a resident produces a dirty drug screen, if there is a bail condition the resident remain drug abstinent;
(ii)if a resident absconds, if there is a bail condition the resident reside at the Centre;
(iii)if a resident disobeys a direction, if there is a bail condition that the resident comply with the Centre’s directions.
Curfew
39From Monday to Friday each week, there is a curfew between 6:00PM and 6:00AM. Residents are permitted to leave the Centre between 12:30PM and 6:00PM.
40On weekends, the curfew is from 9:00PM to 6:00AM. Residents are permitted to leave the centre between 6:00AM and 9:00PM to allow them to make a return trip to Melbourne to visit family if they wish, by public transport if needed.
41There is a bed available for the applicant;
(a) on 3 November 2021 if he can get to the Centre from prison himself, or
(b) on 8 November 2021, if a staff member is needed to collect him from prison.
Julie Nguyen
42Julie Ngyuen is Mr Nguyen’s sister. She told me, if bail is granted she will collect the applicant from prison and drive him to The Cottage.
Applicant’s Contentions
43The applicant acknowledged the charged offending is serious. He accepted the prosecution case is not weak. The prosecution case is that the applicant was in possession of the items located at the Box Hill and Burwood apartments. He was not the lessee of either property. The prosecution relies on circumstantial evidence to prove the applicant’s use and control of the two premises. The applicant contends there are triable issues.
44The applicant has been remanded in custody since his arrest in March 2020. Discussions to attempt to resolve a plea indictment are ongoing. Following a case conference in September 2021, a trial date is yet to be fixed.
45The applicant contends that the delay in the listing of his trial is one factor which demonstrates a compelling reason for a grant of bail.
46The other factor is bail support.
47The applicant seeks bail to enable him to undertake a drug rehabilitation program at The Cottage. He has a bed available to him now.
48He is willing to comply with strict conditions of bail including;
(a) he reside at The Cottage at Shepparton;
(b) he comply with the directions of The Cottage staff;
(c) he comply with a curfew, Monday to Friday, between 6:00 PM and 6:00 AM and on Saturday and Sunday between 9:00 PM and 6:00 AM;
(d) he report daily to Shepparton police station;
(e) he present himself to police at The Cottage upon request;
(f) he does not leave the State of Victoria;
(g) he surrender his passport and not apply for any other or any valid travel document;
(h) he abstain from use of prohibited drugs of dependence;
(i) he is to possess and use only one mobile phone;
(j) he is not to possess a mobile phone without the prior approval of the Informant and to provide the Informant, within 24-hours, the mobile phone number;
(k) he is not to possess or use any encrypted communications device or program including any encrypted mobile phone; and
(l) he is not to possess or use a drug of dependence except as permitted by the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Respondent’s Contentions
49The respondent opposed the application for bail on the ground the compelling reason threshold has not been met.
50The respondent contends:
(a) the charges brought against the applicant, particularly the firearm charges, which carry a maximum penalty of 10 years imprisonment, are serious, and
(b) the prosecution case is a strong one.
51The respondent contends the applicant’s possession of the pistol is a serious example of the offence considering:
(a) it was loaded,
(b) there was other ammunition with it,
(c) it was easily accessible,
(d) it was a dangerous semiautomatic weapon, and
(e) the applicant possessed it in the context of his drug trafficking activities.
52The respondent also contends there is substantial evidence of the applicant’s use and occupation of the Box Hill apartment and the storage cage, and of his handling items of contraband found there. The prosecution points to:
(a) CCTV vision of the applicant entering and leaving the Avani apartment on numerous occasions between 22 November 2019 and 22 March 2020;
(b) the finding of the room card for Apartment 906 on the applicant when he was arrested;
(c) his admissions to police of drugs and cash held at the apartment;
(d) the finding of the Mercedes-Benz car keys in the Avani apartment,
(e) the identification of the applicant’s fingerprint on the safe found at the apartment;
(f) CCTV vision of the applicant driving the Mercedes-Benz on numerous occasions, that being the same vehicle the Applicant is observed on CCTV driving on numerous occasions;
(g) CCTV vision of the applicant, carrying various items towards the storage cage and then walking back towards the apartment empty-handed;
(h) DNA profiling which links the applicant to the Nike backpack found in the storage cage and the pistol handgrip found in the backpack;
(i) the finding of empty packaging for goods, located in the apartment, in the storage cage (coincidence evidence).
53The respondent also contends there is substantial evidence of the applicant’s possession of the items located at the Burwood apartment, including:
(a) the applicant’s then girlfriend’s occupation of the apartment;
(b) the finding of the keys for the safe, which contained the revolver, located at the Burwood apartment, at the Box Hill apartment;
(c) CCTV vision of the applicant attending the Burwood apartment; and
(d) DNA profiling which links the applicant to the trigger and guard of the revolver found at the Box Hill apartment.
54The respondent contends, because of the seriousness of the offending and the strength of the prosecution case, a prison sentence is inevitable and, considering the applicant’s relevant criminal history and that he was subject to a Community Corrections Order when he offended, his sentence will likely exceed the period of his remand custody.
55The respondent accepts that if the applicant were bailed to undertake The Cottage residential drug rehabilitation program, he would not be an unacceptable risk.
56The respondent contends, if there is to be a grant of bail, the following conditions should be imposed in addition to the conditions identified by the applicant:
(a) the applicant is not to leave Australia;
(b) the applicant is not to contact witnesses for the prosecution, save for the Informant;
(c) the applicant is to allow any member of Victoria Police, upon request, access to his mobile phone (the number of which is to be provided to the Informant); and
(d) the applicant is not to use any social media application or platform.
Consideration
57I am required to refuse the applicant’s bail application unless I am satisfied a compelling reason exist that justifies the grant of bail.
58The applicant bears the onus of satisfying me a compelling reason exists.
59In considering whether a compelling reason exists am required to take into account the surrounding circumstances which includes the matters set out in s 3AAA of the Bail Act 1977(Vic).
60Ordinarily I must follow a two-step process:
· The first limb requires the Court to consider the compelling reason test and then, if the test is satisfied, consider limb two.
· Limb two is the unacceptable risk test.
61In this case, the prosecution fairly accepts that if the applicant is bailed to reside at The Cottage to complete its drug rehabilitation program, the unacceptable risk test is satisfied.
62In Rogers[1], the Court of Appeal stated that the principles to be applied when considering the compelling reason test are:
(a) An applicant for bail is required to show a compelling reason, a synthesis or balancing of all relevant matters, including those identified in s 3AAA, must compel the conclusion that the applicant’s detention in custody is not justified.
(b) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(c) A compelling reason is one which is forceful and therefore convincing; a reason which is ‘difficult to resist’.[2]
[1] Christopher Rodgers v The Queen [2019] VSCA 214.
[2] Re Alsulayhim [2018] VSC 570 [27]–[28] (Beach JA). See also, Re Ceylan [2018] VSC 361 (Beach JA).
63The offences charged against the applicant are serious. His possession of firearms, in particular, a lethal semiautomatic Browning pistol, and a revolver, and large sums of cash knowing them to be proceeds of crime must inevitably attract prison terms.
64Due to the disruption to jury trials as a result of the COVID-19 pandemic, there will be significant delay in the prosecution of this case. On present indications, the trial will not be heard in this court until the end of 2022 or early 2023, by which time the applicant will have spent nearly three years’ in custody if not granted bail. This is plainly unacceptable.
65Delay, due to COVID-19, is a significant factor.[3]
[3] Re Diab [2020] VSC 196, [38(1)]
66COVID-19 has also made time in custody “very difficult and/or significantly more difficult than usual” because of the ban on visitors, reduction in programs and isolation in lockdowns. [4]
[4] Re Diab [2020] VSC 196, [38(3)]
67While I accept the prosecution case is a strong one, for the reasons which Mr O’Toole advanced, it is difficult to assess whether the sentence ultimately imposed on the applicant will exceed the period he will have spent on remand custody by the time of his trial.
68Significant delay does not become unacceptable, only if it is likely to exceed the period of an eventual custodial sentence.[5]
[5] Re Ashton [2020] VSC 231, [68]; Re Tofaris [2021] VSC 249, [45]
69If I grant bail now the applicant should understand there is a very real chance his ultimate sentence will exceed his time in remand custody.
70The applicant has admitted a history of polysubstance abuse since his adolescence. His criminal history gives the impression that he has been involved in the drug trade to make money and feed his drug habit. He has had forced periods of nearly 20 months’ abstinence in prison. He has said he is mentally and physically ready to engage in intensive residential drug treatment. In the interests of the applicants rehabilitation it is it is desirable he complete the program.
71Mr Gilhooly gave impressive evidence about The Cottage’s operations including its strict supervision and testing requirements.
72I accept Mr Gilhooly’s evidence that The Cottage staff will notify the informant in the event the applicant;
· fails a drug test;
· refuses to comply with directions given to him under the program; or
· absconds from the facility before he has completed the program.
73I also accept his evidence The Cottage will facilitate the applicant’s reporting to police and court appearances, either remotely or in person, as required.
74The applicant’s parents, who jointly own a home, where his mother lives, have offered a surety.
75The significant delay and the stringent conditions to be imposed, which require him to complete a four month residential drug rehabilitation program, point to a compelling reason to justify the granting of bail.
76Considering all of the surrounding circumstances of the applicant, I’m satisfied the applicant has established that a compelling reason exist that justifies the granting of bail.
Bail
77Bail is granted on the applicant’s own undertaking with a surety of $200,000 on the following conditions:
(a) he reside at The Cottage at Shepparton;
(b) he comply with the directions of The Cottage staff;
(c) he comply with a curfew, Monday to Friday, between 6:00 PM and 6:00 AM and Saturday and Sunday between 9:00 PM and 6:00 AM;
(d) he report daily to Shepparton police station;
(e) he present himself to police at The Cottage upon request;
(f) he does not leave the State of Victoria;
(g) he surrender his passport and not apply for another or any valid travel document;
(h) he is not to possess a mobile phone without the prior approval of the Informant;
(i) he is to possess and use only one mobile phone and is to provide the phone number to the Informant within 24-hours;
(j) he is to allow any member of Victoria Police access to his mobile phone upon request;
(k) he is not to possess or use any encrypted communications device or program including any encrypted mobile phone;
(l) he is not to use any social media application or platform;
(m) he is not to possess or use a drug of dependence except as permitted by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
(n) he is not to contact any witnesses for the prosecution, so for the informant.
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