Re application for bail by Tran

[2022] VSC 2

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0368

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by Thien TRAN

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JUDGE:	Whelan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 December 2021
DATE OF JUDGMENT:	12 January 2022
CASE MAY BE CITED AS:	Re application for bail by Tran
MEDIUM NEUTRAL CITATION:	[2022] VSC 2

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CRIMINAL LAW — Application for bail — Charges of aggravated burglary, kidnapping, threats and assaults — No prior convictions — Delay — Applicant’s youth — Compelling reasons established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 3AAA, 4AA, 4C, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Toohey	Giorgianni & Liang Lawyers
For the Respondent	Mr B Sonnet	Office of Public Prosecutions

WHELAN JA:

1. The applicant, Thien Tran, is 23 years old. He has no prior convictions. He is charged with a number of serious offences allegedly committed on 20 April 2021, and with two earlier offences against the same victim allegedly committed in February 2021. He has been on remand since 20 April 2021. A committal hearing is listed for 7 March 2022. The earliest expected trial date is the second half of 2023. His trial could well be delayed until 2024.

1. The applicant has been refused bail on two occasions in the Magistrates’ Court. On 10 December 2021 he applied for bail to this Court.

1. Under s 4 of the Bail Act 1977 (‘the Act’) an accused is entitled to bail unless the bail decision maker is required by the Act to refuse bail. Under s 4AA(3) and s 4C of the Act, where the accused is charged with a Schedule 2 offence, bail must be refused unless the accused satisfies the bail decision maker that a compelling reason exists that justifies the grant of bail. In considering whether a compelling reason exists, the surrounding circumstances, including those enumerated in s 3AAA of the Act, must be taken into account. If a compelling reason is found to exist, the bail decision maker must nevertheless refuse bail pursuant to s 4D and s 4E of the Act if the prosecution establishes that there is an unacceptable risk the accused would (relevantly) endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness, or fail to surrender into custody in accordance with the bail conditions.

1. The applicant is charged with at least one Schedule 2 offence, being aggravated burglary. Accordingly, bail must be refused unless the applicant satisfies the Court that a compelling reason exists that justifies the grant of bail. If satisfied that a compelling reason does exist, the Court must refuse bail if the prosecution establishes the existence of a relevant unacceptable risk.

1. The applicant is charged with aggravated burglary and with 14 other offences allegedly committed against a complainant, who I will refer to as ‘A’, on 20 April 2021. On A’s account of events, for which there is some limited independent support, the applicant subjected her to a terrifying ordeal involving entry to her home in the very early hours of the morning, kidnapping, threats and assaults. Two additional offences of a similar kind against A are alleged to have been committed in February 2021. An interim family violence intervention order was made on 30 April 2021 which the applicant did not oppose.

1. The applicant has no prior convictions, but he has a long–standing and serious drug abuse problem. The material filed in support of his application includes a report by Amanda Brown from Lamberti Associates Rehabilitation Consultants dated 7 June 2021, which records the applicant as having abused a wide range of illicit substances from as early as his late teens, and which expresses the opinion that he appears to have a ‘profound addiction’ to methamphetamine and gamma–hydroxybutyrate. The applicant comes from a troubled and dysfunctional immediate family. Both his parents have serious criminal convictions related to drug trafficking.

1. In support of the application for bail, the applicant relied upon an affidavit of his solicitor which, amongst other things, exhibited Ms Brown’s report; an affidavit by a friend and former employer of the applicant, Van Sang Ha; and an affidavit of the applicant’s uncle Anh Nguyen. In the hearing before me, evidence was given by Ms Brown, Mr Ha, and Mr Nguyen. They each undertook to notify the informant of any non-compliance with bail conditions should bail be granted. Evidence was also given by the applicant’s brother, Phu Tong, who has offered a surety of $10,000.

1. The applicant relied upon the following matters:

·The substantial delay which is likely before any trial with the consequence that the applicant will spend a very substantial period of time on remand.

·Whilst it was conceded that the alleged offending was serious, it was submitted that there were ‘triable issues’, and that there was only very limited independent evidence supporting A’s account of events.

·The applicant has no prior convictions. This is his first time in custody.

·Whilst it was initially proposed that the applicant would reside with his mother, in the course of the hearing the Court was told that proposal was not being pursued and that, if bailed, the applicant would reside with his uncle, Anh Nguyen. Mr Nguyen has no prior convictions. It was asserted by the prosecution that his wife had prior convictions, but it was revealed in the course of the hearing that that was an error. Mr Nguyen’s wife is a kindergarten teacher without convictions. They have two young children.

·Employment was available for the applicant with Mr Ha.

·The applicant proposed to receive intensive outpatient treatment and supervision through Lamberti Associates to address his substance abuse and other issues. The proposal is that he will receive counselling, attend Narcotics Anonymous, submit to drug testing, and otherwise follow Ms Brown’s lawful directions.

1. In the course of the hearing the informant gave evidence. Amongst other things, he gave some details of the alleged offending in February 2021.

1. The prosecution opposed bail. It was submitted that the nature of the offending was serious and that the prosecution case is a strong one. It was submitted that the criminal history of both of the applicant’s parents is concerning, and that the proposed employer, Mr Ha, also has a criminal history for drug–related offending. It was submitted that the proposed treatment and support which the applicant would receive from Lamberti Associates was not sufficient to address the relevant risks. In the course of oral submissions, it was suggested that if residential treatment had been proposed the prosecution’s position might have been different. The prosecution conceded that there is likely to be a very substantial delay until any trial, but it was submitted that that consideration is to be tempered by the strong case against the applicant and the seriousness of the offending. It was submitted that the alleged victim, A, is still suffering significant psychological effects from the offending and is very anxious at the prospect of the applicant’s release. The prosecution submitted that a compelling reason had not been established and that on the material the Court ought to conclude that the relevant risks were unacceptable.

Compelling reason

1. In considering whether the applicant has established a compelling reason justifying the grant of bail, I am required to take into account the surrounding circumstances, including, in this case, the nature and seriousness of the offending, the strength of the prosecution’s case, the applicant’s criminal history, the existence of the family violence intervention order, the applicant’s personal circumstances, the availability of treatment, A’s views, the length of time the applicant is likely to spend in custody if bail is refused, and the likely sentence to be imposed should he be found guilty.

1. In my opinion, a combination of the applicant’s youth, his absence of prior convictions, the availability of treatment for his long-standing drug abuse problem, the availability of suitable accommodation with his uncle, and the very long delay which is likely before there can be any trial, constitute a compelling reason which justifies the grant of bail. The very long delay before a trial is substantially the result of dislocation as a result of the COVID–19 pandemic for which the applicant is not in any sense responsible. If he is refused bail, it is possible that he will be in custody for in excess of three years before any trial. It is difficult to make any assessment of the sentence he might receive should he be found guilty of some or all of the alleged offences, but the circumstances of the offending, his age, and his absence of prior convictions means that it cannot be confidently concluded that he would receive a custodial sentence in excess of the time he may well have already served.

Unacceptable risk

1. The applicant’s family associations are a cause for considerable concern. As indicated, both his parents have drug trafficking convictions. If bailed, he proposes to return to work with Mr Ha, who gave evidence before me to the effect that he has a handyman business. As I indicated to both counsel in the course of the hearing, I have read the sentencing remarks of Judge Cahill in relation to the applicant’s mother and in relation to Mr Ha.[1] In my view it is a cause for concern that Mr Ha has two prior convictions for cultivation of cannabis, and, although the charges against him were eventually withdrawn, also had a connection with the applicant’s mother’s drug trafficking conviction.

   [1]Director of Public Prosecutions v Sang Ha [2020] VCC 1164 and Director of Public Prosecutions v Thi Hong Tham Tong [2021] VCC 362.

1. On the other hand, the applicant’s uncle has no prior convictions, and appears to live in a settled family situation. He has offered accommodation to the applicant and has undertaken to notify the informant should any conditions of bail be breached.

1. Bail will offer the applicant what appears to be his first significant opportunity to receive treatment for his drug abuse. Ms Brown proposes a program of counselling and testing. She has also undertaken to notify the informant should any conditions of bail be breached. The applicant is still young. If he is to alter the direction of his life, this would be an opportunity for him to do so.

1. The alleged victim, A, is understandably anxious at the prospect of the applicant’s release. The informant is particularly sensitive to this concern. Any attempt by the applicant to communicate with A directly or indirectly, would be a circumstance justifying an immediate cancellation of the applicant’s bail.

1. The applicant has offered to submit to stringent conditions on any grant of bail.

1. In the circumstances I have concluded that appropriately stringent conditions of bail sufficiently reduce the likelihood of the applicant endangering the safety or welfare of any person, committing an offence on bail, interfering with a witness, or failing to surrender himself into custody so as to result in a conclusion that I cannot refuse bail on the ground that there is a relevant unacceptable risk.

1. The conditions which (subject to hearing the parties) I propose are to the following effect:

·that the applicant reside with his uncle;

·that he comply with a curfew between 9:00 pm and 6:00 am;

·that he report to police weekly;

·that he abstain from the consumption of alcohol and drugs;

·that he submit to drug and alcohol testing;

·that he not attempt any contact with any witness other than the informant;

·that he not leave the state of Victoria;

·that he surrender any passport; and

·that he submit to treatment and counselling as required by Ms Brown.

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