Re application for bail by Lim

[2017] VSC 719

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0233

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for Bail by Michael LIM

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2017
DATE OF JUDGMENT:	16 November 2017 (ex tempore)
CASE MAY BE CITED AS:	Re application for bail by Lim
MEDIUM NEUTRAL CITATION:	[2017] VSC 719

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CRIMINAL LAW – Application for bail – Multiple charges of cultivating cannabis in large commercial quantities – Whether exceptional circumstances justifying grant of bail – Delay caused by applicant dismissing legal representatives multiple times – Whether unacceptable risk – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms L Ristivojevic	James Dowsley & Associates
For the Crown	Mr S Ballek	Mr J Cain, Solicitor for Public Prosecutions

HIS HONOUR:

1. By notice dated 6 October 2017, Michael Lim makes application for bail. 

1. He has been charged with a number of offences involving the cultivation of cannabis at six different premises in relation to the actual growing of crops relating to 1711 plants with an aggregate weight of 476.86 kilograms, which is a large commercial quantity — a large commercial quantity being 250 kilograms or 1000 plants.  The case represents a significant example of a large commercial quantity of the cultivation of cannabis. 

1. Because of the operation of s 4(2)(aa)(i) of the Bail Act1977, it is incumbent upon the applicant to show exceptional circumstances as to why he should be admitted to bail.

1. The applicant had been arrested on 15 July 2015, and on 1 April 2016 he was committed to stand trial on the present charges.  It follows that there will have been a significant period between the time of his arrest and the time of trial in January 2018.  It has often been said that inordinate delay is capable of itself, or in combination with other factors, to amount to exceptional circumstances. 

1. The delay between the time of the hearing of this application and trial is relatively brief. That is not to say, however, that the earlier periods of delay are not relevant.  It does happen in this case that the applicant has had the matter listed for trial on two earlier occasions, 24 October 2016 and 29 May 2017.  Those trials did not proceed because he dispensed with the services of his then legal practitioners. 

1. There have been a number of mentions and directions hearings in the County Court relating to the question of representation and to funding for that representation. It does not seem to me that it can be said, when taking into account the actions of the applicant himself (including the use of 14 different firms of solicitors in the proceedings), that the delay can be called inordinate in the way that it has been understood by this Court in relation to exceptional circumstances.

1. The other matters put on behalf of the applicant are that he is a person without any criminal history; that he has suitable accommodation and ties to the jurisdiction; that suitable bail conditions could be imposed to address the risk of flight; and that during the period of remand there has been substantial effect on his business interests, resulting in financial hardship. 

1. It was submitted on behalf of the Crown that exceptional circumstances had not been shown.  Matters relating to the unacceptable risk of what the applicant might do if released on bail, in particular in relation to the risk of him not answering his bail, were also pointed out. 

1. It was, first of all, put that the applicant had demonstrated an ability to use false identities relating to attempts to conceal his connection to the properties that are the subject of the alleged offending. 

1. Secondly, that there was a sophisticated amount of planning that went into the alleged offending in a way that demonstrated the applicant’s ability to engage in complicated criminal forethought. 

1. It was separately submitted that neither the question of delay nor the effect of the applicant’s business interests were such that, in this case, they could have any particular bearing on the question of whether or not exceptional circumstances had been shown.

1. The Crown has submitted in any event that, in relation to the applicant’s business interests, there appears at least to be some correlation between the estimated profits of the cannabis cultivation and the loans which had been taken out in relation to his business.  That is a matter that I do not need to resolve for the purpose of this application.  In any event, there was scant material before me about which I could make any positive finding in relation to the applicant’s business. 

1. The address suggested by the applicant, as submitted by the Crown, will simply have him return to the place where he was at the time of the alleged offending. 

1. The applicant further submitted that there were difficulties surrounding him seeing his daughters, whom he had not seen for several years.  His daughters are aged 22 and 14.  The 22-year-old is at an independent age and the 14-year old lives with her mother (the applicant’s divorced wife), with whom the applicant appears to have a perfectly reasonable relationship.  It follows that, in relation to the 22-year-old, there can be no possible impediment to her visiting him in gaol, and no reason why the 14-year-old could not be taken to visit him.  No material has been submitted to the contrary. 

1. In any event, I am satisfied that there is nothing which would remotely approach exceptional circumstances so as to warrant the granting of bail in this case.  The application will be dismissed.

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