R v Chung - [2015] VSC 487

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2015 0052

THE QUEEN

CHI THANH CHUNG

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2015
DATE OF JUDGMENT:	11 September 2015
CASE MAY BE CITED AS:	R v Chung
MEDIUM NEUTRAL CITATION:	[2015] VSC 487

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BAIL – Drug offences in large commercial quantity – Exceptional circumstances – Principles – Strength of prosecution case – Delay – Other considerations – Whether surety relevant – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Hardjadibrata	Office of Public Prosecutions
For the Accused	Mr P.C Dane QC	Theo Magazis & Associates

HIS HONOUR:

This is an application for bail by Chi Thanh Chung (“the Applicant”). He is charged with the following offences:

(1)Between 28 November 2013 and 8 January 2015 cultivating a narcotic plant (cannabis) in a quantity not less than a large commercial quantity applicable to that plant;
(2)Between 28 November 2013 and 8 January 2015 trafficking cannabis in not less than a large commercial quantity;
(3)On 21 December 2014 cultivating a narcotic plant in a quantity not less than a commercial quantity of cannabis at 9A State Street, Oakleigh;
(4)On 14 November 2014 cultivating a narcotic plant (cannabis) in a quantity not less than a commercial quantity at 71 Melington Drive Lyndhurst;
(5)On 18 November 2014 cultivated a narcotic plant (cannabis) at 18 Young Street, Springvale;
(6)On 8 January 2015 cultivated a narcotic plant (cannabis) in not less than a commercial quantity at 28 Risdon Drive, Notting Hill;
(7)On 8 January 2015 cultivated a narcotic plant (cannabis) at 11 Third Street, Clayton;
(8)On 8 January 2015 cultivated a narcotic plant (cannabis) at 4 Wellington Road, Clayton;
(9)On 12 January 2015 cultivated a narcotic plant (cannabis) in not less than a commercial quantity at 7 Hayden Street, Clayton;
(10)On 14 January 2015 cultivated a narcotic plant (cannabis) in not less than a commercial quantity at 3 Arunta Crescent, Clarinda;
(11)On 20 February 2015 cultivated a narcotic plant (cannabis) at 2 Ikara Close, Kings Park.

Charges 3 to 11 involve a total weight of cannabis of 303.57 kilograms with 927 plants. A large commercial quantity is 250 kilograms or 1,000 plants. In total it is to be alleged that there are 46 properties involved in cannabis crops. The present charges against the Applicant refer to 9 although it is alleged that he is linked to 14.

As a result of the charges which refer to a large commercial quantity or commercial quantity of the drug, the Applicant is required to satisfy the court that, pursuant to s 4 (2)(ia) of the Bail Act 1977, exceptional circumstances exist which justify a grant of bail.

The Applicant was arrested and charged on 2 February 2015 and has remained in custody since that date. That is significant and, as relied on in this application, is a period of in excess of 7 months.

Brief summary of circumstances

The arrest of the Applicant and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chung

Details

AGLC: R v Chung [2015] VSC 487
Case: [2015] VSC 487
Decision Date: 11 September 2015

CaseChat Overview and Summary

In the matter of R v Chung, the court addressed an application for bail in relation to the defendant who was charged with drug offences involving a large commercial quantity of drugs. The case was heard in the court of appeal. The central issue before the court was whether the defendant should be granted bail, considering the severity of the charges, the strength of the prosecution's case, and the presence of exceptional circumstances. The court was also required to weigh factors such as delay, the defendant's ties to the community, and the relevance of a surety.

The court meticulously evaluated the principles applicable to bail applications, particularly in cases involving serious drug offences. It examined the strength of the prosecution's evidence, the potential impact of a delay in the proceedings on the defendant, and other pertinent considerations. The court acknowledged that drug trafficking on a commercial scale typically warrants a stringent approach to bail due to the seriousness of the offence and its implications for public safety. Additionally, the court considered the defendant's ability to provide a surety and whether this factor was relevant in the context of the other considerations.

Upon thorough analysis, the court determined that the exceptional circumstances necessary for granting bail were not present. The severity of the charges and the strength of the prosecution's case against the defendant outweighed other factors. The court also found that the delay in proceedings did not sufficiently favour the defendant's application for bail. Consequently, the court concluded that the risk of the defendant failing to appear in court, should bail be granted, was too high, and the application for bail was refused. The court's decision was grounded in the need to balance the rights of the defendant with the imperatives of public safety and the administration of justice.

Orders