Re Hoang - [2022] VSC 135

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0013

IN THE MATTER of an Application for Bail by HONG HOANG

and

IN THE MATTER of the Bail Act 1977 (Vic)

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2022
DATE OF JUDGMENT:	22 February 2022
CASE MAY BE CITED AS:	Re Hoang
MEDIUM NEUTRAL CITATION:	[2022] VSC 135

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CRIMINAL LAW — Application for bail — Charges of cultivating and trafficking in a large commercial quantity of cannabis — Significant delay caused by pandemic — Strength of prosecution case — Exceptional circumstances established — Risk of flight — Risk not unacceptable with conditions — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Menegas	Auslex
For the Respondent	Mr P Bourke SC	Office of Public Prosecutions

HIS HONOUR:

Introduction

By application filed 25 January 2022, Hong Hoang (‘the applicant’) seeks bail in this Court on the following charges brought by Senior Constable Daniel Ippolito, relating to alleged offending between 31 May and 15 August 2021:

(a)Trafficking a commercial quantity of cannabis;
(b)Cultivating a commercial quantity of cannabis;
(c)Trafficking a large commercial quantity of cannabis;
(d)Cultivating a large commercial quantity of cannabis; and
(e)Theft of electricity.

The applicant has been in custody since her arrest on 15 August 2021. She has been refused bail in the Melbourne Magistrates’ Court on three occasions, 16 August, 21 October and 29 November 2021, each time on the basis that she posed an unacceptable risk of failing to surrender into custody in accordance with conditions of bail.

There is one co-accused, Tuyet Duong, also a female who faces identical charges to the applicant and has been on remand since 15 August 2021.

On 10 December 2021, the applicant entered a plea of not guilty to the above charges and was committed to stand trial in the County Court by way of straight hand-up brief. The matter is next listed for a directions hearing in the County Court on 10 March 2022.

The application

The application is supported by the affidavit of Ian Mark Lacy, solicitor, dated 6 December 2021, attaching a series of exhibits, some of which will be referred to below. The applicant also relies on the affidavit of Tajir Hussain, a truck driver, dated 14 February 2022. The applicant filed a seven page written submission and supplemented these with oral submissions on the hearing of the application, as well as calling the evidence from Mr Hussain.

In response to the application, the respondent filed an affidavit sworn by Sivadharshini Shivakumar, solicitor from the Office of Public Prosecutions, dated 15 February 2022, also attaching a series of exhibits, including a report prepared and authored by Detective Senior Constable Michael Fullerton dated 17 January 2022, and a copy of the hand-up brief relating to the applicant. The respondent relied on the filed written material as well as…

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 Re Hoang

Details

AGLC: Re Hoang [2022] VSC 135
Case: [2022] VSC 135
Decision Date: 22 February 2022

CaseChat Overview and Summary

The case of Re Hoang involved the applicant, Mr Hoang, who sought bail in relation to charges of cultivating and trafficking in a large commercial quantity of cannabis. The matter was heard in the County Court of Victoria. The prosecution opposed the bail application, arguing against it on various grounds, including the seriousness of the charges, the risk of flight, and the impact on the community if bail were granted.

The central legal issues before the court were whether Mr Hoang met the criteria for bail under the Bail Act 1977 (Vic) and, if so, what conditions, if any, should be attached to the bail to mitigate the risks. The court had to assess the strength of the prosecution's case, the exceptional circumstances that had led to significant delays in the proceedings, and the potential risks associated with granting bail, such as the risk of re-offending and the risk of flight.

The court found that, despite the seriousness of the charges, the applicant had established exceptional circumstances due to the significant delay in the proceedings caused by the pandemic. The court also considered that the risk of re-offending and the risk of flight were not so high as to preclude bail. After carefully weighing these factors, the court concluded that bail could be granted with appropriate conditions. These conditions included residence restrictions, a curfew, regular reporting to police, and a strict prohibition on the use of the internet except for specific authorised purposes. Ultimately, the court accepted that the risk was not unacceptable with the imposition of these conditions.

Orders