Re application for bail by P T Nguyen
[2017] VSC 688
•16 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0207
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for Bail by Phuoc Thanh NGUYEN
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 October 2017 |
DATE OF JUDGMENT: | 16 October 2017 |
CASE MAY BE CITED AS: | Re application for bail by P T Nguyen |
MEDIUM NEUTRAL CITATION: | [2017] VSC 688 |
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CRIMINAL LAW – Application for bail – Applicant in ‘show cause’ position – Multiple drugs, weapons and dishonesty related charges – Unacceptable risk of re-offending – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Melasecca | Melasecca Kelly & Zayler |
| For the Crown | Mr R Gibson | Mr J Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
The applicant, Phuoc Thanh Nguyen, by application dated 8 September 2017 makes application for bail.
He has been charged with:
·trafficking a drug of dependence;
·two charges of being a prohibited person in possession of a firearm; and
·knowingly dealing with the proceeds of crime,
(‘the Williams brief’).
The informant in these matters is Senior Constable Eamon Williams. These offences are said to have been committed on 3 November 2015. The applicant was discharged with respect to these charges on 7 April 2017 at the Melbourne Magistrates’ Court. On that day, he pleaded guilty to some other charges and was released on a Community Correction Order (‘CCO’). On 1 May 2017, the Director of Public Prosecutions filed a direct indictment with respect to the charges on which he had been discharged.
On 5 May 2017, a search warrant was executed at the applicant’s premises. When the search was carried out, the police found methylamphetamine, drug paraphernalia, weapons, ammunition and cash totalling $258,795.05. The informant in these matters is Senior Constable Dai-Morgan Rushbrook. The applicant was further charged with:
·trafficking and possessing methylamphetamine;
·possessing ammunition;
·possessing prohibited weapons;
·possessing a controlled weapon;
·knowingly or negligently dealing with proceeds of crimes; and
·dealing with property suspected of being proceeds of crime,
(‘the Rushbrook brief’).
The applicant was refused bail after his arrest. The Rushbrook brief charges are listed for a contested committal hearing on 8 November 2017.
The Williams brief charges came on for mention in the County Court on 18 May 2017 and fixed for trial on 16 April 2018. Bail was refused. The applicant seeks bail on both sets of matters.
The applicant has been charged with trafficking a drug of dependence and is therefore obliged to ‘show cause why his detention in custody is not justified’.[1] It was also argued that, since the direct indictment for the Williams brief charges had been filed on 1 May 2017, the applicant is an accused who has been charged with an indictable offence which is ‘alleged to have been committed while he was at large awaiting trial for another indictable offence’.[2] It may be that in the somewhat unusual circumstances of the case that may be so. In the result, however, nothing turns on that.
[1]Bail Act 1977 s 4(4)(cab) (‘the Act’).
[2]Section 4(4)(a) of the Act.
In the Affidavit in Support of the Application for Bail sworn by Michael Kelly, the applicant’s solicitor, the following matters were put:
1. On the Williams brief, the prosecution case is weak and the magistrate was correct in discharging the applicant. That is in part because of the proposition that one Patrick La Manna had confessed to being the owner of the items relevant to those charges.
2. Since the applicant had been released on a CCO in April 2017, he should be given the chance to complete the CCO.
3. That there may be delay of the November committal hearing.
4. That the applicant can enter a residential programme at Arrow Health for three months.
5. That the end of the programme he would reside with his parents.
6. That a surety of $100,000 was available from his parents.
7. That his parents would supervise his bail.
On the hearing of the application, the applicant was represented by his solicitor, Mr Rob Melasecca, and the respondent was represented by Mr Ray Gibson of counsel.
Mr Melasecca emphasised the matters set out in the affidavit and added some matters. He said that the applicant had been on bail between early 2016 and April 2017. He had fulfilled his bail and obliged all conditions in that time and he had been abstinent from drugs in that period.
A report from Amanda Brown, Senior Clinician at Lamberti Associates, dated 2 August 2017 was exhibited. That report set out the availability of a place at Arrow Health. Mr Melasecca called Ms Brown who, it appears, is sufficiently connected to Arrow Health so as to be able to make assessments of their behalf. An unsigned letter dated 12 October 2017 from Arrow Health confirming that a place was available was tendered on the application. The letter was apparently authorised by Paul Watkins, the Intake and Assessment Manager.
In relation to the applicant’s drug taking, the following matters emerged. At the time of his release on the CCO in April 2017, one of the conditions was to ‘continue treatment with Ms Denise Abadee or as otherwise directed for the next 18 months.’ It was suggested on the application that the counselling and treatment with Ms Abadee was the source of the applicant’s good performance whilst on bail. Mr Melasecca said that Ms Abadee preferred a residential facility called Bayside, which was not satisfactory, hence Ms Brown and Arrow Health were engaged.
In her report, Ms Brown said when reporting the applicant’s history:
At age 18 Mr Nguyen was introduced to Meth Amphetamine which he admitted he had continued to use most days until his arrest at age 30.
The applicant’s date of birth is 24 November 1986.
It does not appear that the applicant had reported to Ms Brown that he had been abstinent for most of 2016. It follows, I suspect, that if he had been abstinent, the need for the residential course would be questionable.
Ms Abadee was not called and, although Mr Melasecca said her reports were favourable, they were not tendered.
Among the items seized at the applicant’s premises on 5 May 2017 was the sum of $258,795.05. The cash was found in different places within a shelving unit in a cavity in the wall. At different places on the shelves were found bundles of cash ($53,035, $70,150, $39,970 and $89,990) all in Australian $100 and $50 notes. Some bundles of cash were in vacuum sealed bags. A total of $253,145 was recovered on the shelves. The applicant was carrying a further $5,510 in Australian notes.
It was submitted by Mr Melasecca that the cash could be explained by a money trail from a person who has large amounts of cash to be used for Chinese investors to buy real estate. The applicant was able to borrow money from him to pay for his trial. It was submitted that it would be difficult to prove that the cash represented proceeds of crime. It was, however, pointed out by the respondent that the direct indictment for the Williams brief charges had only been filed on 1 May 2017.
Mr Melasecca further submitted that the amount of pure methylamphetamine relating to the trafficking charge was small — about 25 grams. That is so, but that relatively small amount is relevant to show cause on the Rushbrook brief. As stated above, the applicant needs to show cause because he has been charged with trafficking on both the Williams and Rushbrook briefs.
It may be that I could be convinced that the applicant has shown cause, although it would be dependent on assessing the true position in relation to the applicant’s drug addiction. It was suggested by Mr Melasecca that the use of methylamphetamine described by the applicant in Ms Brown’s report was a reference to the period prior to his first arrest. The difficulty in that analysis is that at the time of the first arrest in November 2015, the applicant was 28 years of age.
So the position in relation to drug use is, either that the applicant has been an almost daily user for a number of years, or that, as was probably put to the magistrate, he had been drug-free for about a year. On the evidence before me, I am not able to say which one it is. If it is the latter, then the applicant significantly relapsed between 7 April and 5 May 2017, if it is suggested the methylamphetamine found in the house was for his own use.
I do not accept that the explanation for the possession of the money is plausible. I add that in relation to the Williams brief he was found with $45,629.75 in cash. He claims to have a job earning $45,000 a year.
In the circumstances, the respondent has satisfied me that the applicant is an unacceptable risk of re-offending. I have taken into account the availability of a surety and the availability of residential care. I do not regard the prosecution case on either set of charges to be weak to the extent that it would influence my decision as to bail.
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