Nguyen v STOYKOVSIC
[2003] WASC 189
NGUYEN -v- STOYKOVSIC [2003] WASC 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 189 | |
| 03/10/2003 | |||
| Case No: | MCS:36/2003 | 9 SEPTEMBER 2003 | |
| Coram: | JOHNSON J | 9/09/03 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | HOA VAN NGUYEN VICTOR STOYKOVSIC |
Catchwords: | Criminal law Bail Commonwealth offence Application for bail pending trial Whether serious offence Whether exceptional circumstances justify bail |
Legislation: | Migration Act (Cth), s 232A |
Case References: | Alexopolous v The Queen, unreported; SCt of Vic (Hampel J); 23 February 1998 Commonwealth Director of Public Prosecutions v McLellan [2001] WASC 366 Ilam v Dando [1999] WASCA 129 Pinkstone v The Queen [2000] WASC 321 WCVB v The Queen (1989) 1 WAR 279 R v Clarke II (2001) 118 A Crim R 585 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NGUYEN -v- STOYKOVSIC [2003] WASC 189 CORAM : JOHNSON J HEARD : 9 SEPTEMBER 2003 DELIVERED : 9 SEPTEMBER 2003
PUBLISHED : 3 OCTOBER 2003 FILE NO/S : MCS 36 of 2003 BETWEEN : HOA VAN NGUYEN
- Applicant
AND
VICTOR STOYKOVSIC
Respondent
Catchwords:
Criminal law - Bail - Commonwealth offence - Application for bail pending trial - Whether serious offence - Whether exceptional circumstances justify bail
Legislation:
Migration Act (Cth), s 232A
Result:
Bail refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms C E Brookes
Respondent : Mr D W L Renton
Solicitors:
Applicant : Laurie Levy & Associates
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Alexopolous v The Queen, unreported; SCt of Vic (Hampel J); 23 February 1998
Commonwealth Director of Public Prosecutions v McLellan [2001] WASC 366
Ilam v Dando [1999] WASCA 129
Pinkstone v The Queen [2000] WASC 321
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
R v Clarke II (2001) 118 A Crim R 585
(Page 3)
1 JOHNSON J: The applicant seeks release on bail pending the hearing of a charge under s 232A of the Migration Act 1958, of organising the bringing to Australia of a group of five or more people. The allegation against the applicant is that he organised the bringing in to Australia by unlawful means 53 people who are said to be his relatives. The applicant was arrested and charged at Port Hedland on 3 July 2003.
2 In support of the application for bail the applicant relies upon affidavits sworn by his solicitor, Caroline Elizabeth Brookes, on 2 and 8 September 2003. In opposing the application, the respondent relies on the affidavit of Gregg Harold Mumme, sworn on 8 September 2003.
3 In dealing with an application for bail, the Court is called upon to balance the interests of the accused and the public interest in the trial proceedings. The Court must weigh up the presumption of innocence of an accused person against the need to ensure that the accused will present at the hearing of the charges and that the integrity of the trial process is preserved. As has been observed by many judicial officers, the balancing of these competing considerations is never easy.
4 An offence under s 232A of the Migration Act attracts a maximum penalty of 20 years' imprisonment or a fine of $220,000 or both. The seriousness of the offence is further reflected in Parliament setting a mandatory minimum sentence of 5 years' imprisonment with a non-parole period of 3 years for first offenders: s 233C of the Migration Act. As a result, no matter the circumstances, a person found guilty of such a charge must be sentenced to a period of imprisonment.
5 In Ilam v Dando [1999] WASCA 129 McKechnie J described offences of this type in a way that succinctly identifies their seriousness (at pages 5 and 6 [12] and [13]):
"These offences are part of a growing number of incursions into Australian Sovereignty.
…
The introduction of illegal immigrants into Australia threatens this country's national security in many ways. It is a growing problem which requires Australia to take the necessary steps to protect itself."
(Page 4)
6 That threat to national security remains, irrespective of whether the person organises the entry into Australia for financial gain or as a result of political beliefs or good intentions. Contrary to the submission on behalf of the applicant, it is not necessary for the offence to attract a term of life imprisonment, nor involve violence, drugs or deprivation of property before it can properly be described as extremely serious. Those factors are mere indicia of serious offences.
7 It is indeed the case that an offence under s 232A is not listed as a serious offence pursuant to Sch 2 of the Bail Act, but it is certainly not out of keeping with the nature of the offences therein described. It is also significant to note that no Commonwealth offences appear in that Schedule, yet a number of authorities have considered Commonwealth charges to lie within the category of extremely serious offences: Commonwealth Director of Public Prosecutions v McLellan [2001] WASC 366.
8 In my view, an offence of this type can properly be described as extremely serious.
9 It is established principle that in the case of offences that fall into the category of extremely serious the applicant must show exceptional circumstances to justify bail because the gravity of the crime is thought to increase the risk of a failure to appear or interference with the trial process: WCVB v The Queen (1989) 1 WAR 279; Commonwealth Director of Public Prosecutions v McLellan, supra.
10 In my view, none of the material which has been placed before me meets the description of exceptional circumstances. The applicant advises of the potential for a 7 to 8-month stay in custody pending a hearing of the charge against the applicant. I certainly do not consider a delay of that duration to constitute exceptional circumstances: Alexopolous v The Queen, unreported; SCt of Vic (Hampel J); 23 February 1998 at 2; Pinkstone v The Queen [2000] WASC 321.
11 The applicant has failed to establish the existence of exceptional circumstances and I would refuse bail on that basis alone. If I am wrong in my categorisation of the seriousness of this offence, it is necessary to consider whether the prosecution has discharged the onus of establishing that there is a reasonable degree of risk that the applicant, if allowed bail, would fail to satisfy his obligations.
12 Section 13 of the Bail Act provides that the jurisdiction to grant bail is to be exercised subject to, and in accordance with, the related
(Page 5)
- provisions and the factors set out in Pt C of Sch 1 of the Act. I do not propose to now repeat the relevant criteria in full. The questions to be considered include whether the defendant may fail to appear, commit an offence, endanger the welfare of others or interfere with witnesses. In addressing these questions, the judicial officer is required to have regard to the nature and seriousness of the offences, the probable method of dealing with the defendant if he is convicted, the antecedents and previous conviction of the defendant, the history of any previous grants of bail to him and the strength of the evidence against him.
13 The applicant is 46 years old, and is from South Vietnam, where in his adult years he was involved in fighting against the Communist government. In 1981, the applicant was captured by the Communist government and imprisoned for treason. In 1991, the applicant escaped from the Vietnamese prison and made his way to Thailand. He remained in a refugee camp there until he was granted a visa to come to Australia. In 1994 the applicant entered Australia as a refugee. In 1997 he was granted Australian citizenship.
14 In my view, the applicant's history establishes only that, if he is to abscond, it is unlikely to be to Vietnam. The applicant is in receipt of sickness benefits and owns no property in Australia. He has an ex-wife and child in Perth, but moved to Victoria in 2000 and has since resided there and remarried.
15 The applicant raises a number of issues in support of the application for bail. It is said that he is not a flight risk. The applicant has no prior convictions in this country and has no record of having failed to honour bail conditions. The applicant has ties in this country and has acted in a way which shows an intention to return and remain in Australia. For example, he made no attempt to hide from authorities and, it is said, he is anxious to face the charge and plead not guilty to it.
16 In support of the proposition that he is not a flight risk the Court was provided with a letter from the president of the Vietnamese community in Australia who expresses a belief that no member of that community would be willing or able to assist the applicant to escape. In my view, Mr Doan puts the position somewhat higher than he is logically able. The Vietnamese community in Australia is of considerable size and one person cannot possibly speak for all; neither
(Page 6)
- am I prepared to act upon Mr Doan's expression of what the applicant is likely to do.
17 It is also said that the relatives whose entry into Australia is the subject of the charge are another tie to this country. The simple response to that proposition is that there is no way of knowing whether they will be permitted to remain. If they are not, that tie will be severed. It is also said that conditions of bail can be imposed which would greatly reduce the risk of him absconding or interfering with witnesses and that he has indicated an express intention to comply with such conditions.
18 The respondent submits that the mandatory period of imprisonment alone makes the applicant a flight risk. It is further said that the fact that he has family in Australia does not of itself diminish that risk. In the absence of employment and ownership of property, his attachments in this country can properly be described as "portable". It is also emphasised that, given the nature and extent of the applicant's admissions, to which I have been taken in written submission, the prosecution case is extremely strong, perhaps overwhelming.
19 Of further concern to the respondent are the applicant's admitted political views and associations. It is said that, given the applicant's political fervour, he is someone who is likely to commit further similar offences were he to be released on bail. I accept that there is some basis to this concern. The applicant, by his previous conduct in Vietnam, has established himself to be someone who is prepared to act contrary to the law when his political views so dictate.
20 In all the circumstances, I am persuaded that it is not appropriate for a grant of bail to be made. I consider the applicant to be a flight risk. Further, his political zeal, as evidenced in his admissions, raise concerns about the integrity of the trial process, as well as the prospects of committing a further unlawful act. I can think of no conditions that would overcome the risks which I consider this applicant to present.
21 For these reasons, bail will be refused. The application is dismissed and the accused will be remanded in custody.
0
4
0