Nguyen v The Queen
[2015] VSC 169
•23 April 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S RC 2015 0028
IN THE MATTER of the Bail Act1977 (Vic)
and
IN THE MATTER of an Application for Bail by KHIEU KIM NGUYEN
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 17, 23 April 2015 |
DATE OF JUDGMENT: | 23 April 2015 |
CASE MAY BE CITED AS: | Nguyen v R |
MEDIUM NEUTRAL CITATION: | [2015] VSC 169 |
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CRIMINAL LAW – Application for bail – Trafficking in a drug of dependence – Possession of a drug of dependence – Trafficking methylamphetamine – Possession of methylamphetamine – Possessing a prohibited weapon without exemption or approval – Possession of a controlled weapon without excuse – Dealing with property suspected to be the proceeds of crime – Possession of an unregistered general category handgun – Show cause situation – Prior convictions – Prior convictions for failing to answer bail – Strength of prosecution case - Applicant four-months pregnant – Delay - Supports offered to Applicant if released on bail sufficient to mitigate risk of re-offending to an acceptable level - Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P O’Halloran | Office of Public Prosecutions |
| For the Accused | Mr P Dunn QC | Haines and Polites |
HIS HONOUR:
Khieu Kim Nguyen is 25 years old. She is four months' pregnant and has, amongst other priors, two adult court prior convictions for trafficking heroin, three for possessing heroin and two for failing to answer bail. Once more, she is charged with drug trafficking, once more she applies for bail. I shall summarise the facts, in very short compass, that are alleged against the applicant and her partner, Andy Duong.
It is alleged they leased an apartment at 206/9 Commercial Road, Melbourne. Those of a certain age may remember the building at this address as once trading as the Chevron Hotel. On 13 February 2015, police responded to reports of drug-related activity and entered the premises. There they encountered the applicant and her co-accused expensively bejewelled. Drugs, money and drug paraphernalia were in plain view.
The police found:
(a)52.1 grams of methylamphetamine;
(b)140.7 grams of heroin;
(c)separately packaged, another 107 grams of heroin;
(d)separately packaged, another 52.3 grams of heroin;
(e)in a small bowl, approximately 10.8 grams of heroin;
(f)$22,845 in cash in an open bag on the floor; and
(g)a hydraulic heroin press.
In all, 311 grams of heroin and 52 grams of methylamphetamines were found. A conservative total street value of $123,000 is alleged. A Taser gun, a police baton, and a large hunting knife were also located, and at an associated address an imitation handgun and a samurai sword were found.
This apparently thriving enterprise in Commercial Road was visited by eight persons while police were searching the premises. All seemed to have messages on their phones advising that room 206 was open for business. A review of CCTV revealed that apartment 206 welcomed more than 500 visitors in the month leading up to the applicant's arrest.
The applicant was arrested on 13 February 2015 and she has been in custody since that date. Andy Duong, who does not have adult court criminal convictions, was granted bail by the learned magistrate. The bail conditions included that he not associate with the co-accused - that is, the applicant in this application - and that he reside at 2 Westbank Terrace, Cremorne.
It is against this background that the applicant urges the court to grant bail. It is common ground that the applicant must satisfy me that her continued detention is not justified. The respondent also contends that the applicant is an unacceptable risk of re-offending if bail is granted.
An immediate problem with this application was the fact that the co-accused, Mr Duong, has a non-contact with Ms Nguyen condition attached to his grant of bail and yet he was bailed to the same Cremorne address at which it was proposed Ms Nguyen reside should she be granted bail. This problem, which should have been identified and resolved before this application commenced, has now been resolved by changes to Mr Duong's bail conditions.
It has been emphasised by Mr Dunn that there will be a long delay in this matter before it proceeds to trial. I accept that to be the case if it proceeds to trial, but I think it is unlikely that it will.
I set out some of the facts a little earlier in these reasons. I should add to them that the apartment was leased in the joint names of the two accused. In addition to the drugs, cash and heroin press found, police also found ten mobile phones, two laptop computers, large amounts of sugar-based products alleged to be cutting agents, scales, zip lock bags and ice pipes.
I take the view that this is a very strong case which is highly likely to resolve into some form of plea. Should that be the case the delay will not be anything like the two years postulated by the applicant, unless the plea is very late in proceedings.
In these circumstances I take the view that whilst I ought give some weight to the chance of there being a long delay, I have moderated the weight that I would normally give such a factor because I do not consider that the chance of a long delay is particularly high.
When I first considered this application, I formed a preliminary view that whilst the applicant, by virtue of her pregnancy, was likely to satisfy the show cause aspect of this application, the prosecution could mount a powerful case that the applicant remained an unacceptable risk of re-offending given the applicant's prior history.
After anxious consideration, I consider that the applicant's current circumstances, and the supports offered to her if released on bail, are sufficient to mitigate the high risk of her re-offending to an acceptable level.
In short compass, I have reached this conclusion after considering the following factors:
(a)The applicant is a heroin addict and has been a heroin user intermittently since the age of 13. Her prior convictions for use and trafficking are those of a low level street user.
(b)I accept that up until July 2014, she had abstained from heroin use for approximately two years after successfully completely a methadone maintenance program. She has thus demonstrated a capacity to live drug-free for an extended period.
(c)She is currently on a methadone maintenance program whilst in custody.
(d)Her circumstances have changed. She has a substantial incentive to return to her previous drug-free lifestyle.
(e)Accordingly, an integrated services program has been prepared for the applicant. She has been recommended for a level 2 intermediate case management by the CISP team. The support plan proposal includes the following proposals: she reside with her mother at the Cremorne address; she be assigned an accredited case worker who will further assess her substance abuse issues; she be assessed for a pharmacotherapy program by Dr Monica Cooper; if suitable, her pharmacotherapy will be dispensed and monitored by a designated pharmacy; transitional methadone will be available to the applicant until the pharmacotherapy program is in place; and she is to attend the CISP office immediately upon her release. A first appointment with a CISP case manager has been arranged for midday, Friday 24 April. That is tomorrow.
(f)I propose to impose a curfew condition.
(g)A surety is available to cater for any risk of flight. I also consider a reporting condition of three times a week ought be in place to address this risk. I think daily reporting is probably overkill.
(h)As I have said, Mr Duong has a non-contact the applicant condition attached to his grant of bail. I consider that I should impose a matching condition to the applicant's grant of bail, at least for the time being. It seems clear that Mr Duong is a heroin user too and at least in the early stages of the applicant's pharmacotherapy program she should try and stay away from any potentially tempting influences.
I accept, in the longer term, this condition may be impractical, as Mr Duong is, after all, to be the father of the baby.
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