Re Nguyen - [2020] VSC 627

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0214

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by KEVIN NGUYEN

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2020
DATE OF RULING:	28 September 2020
CASE MAY BE CITED AS:	Re Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VSC 627

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CRIMINAL LAW — Application for bail — Applicant charged with Schedule 1 offences —Significant criminal history — Delay — Onerous conditions in custody — Impact of COVID-19 pandemic — Exceptional circumstances established — Breaches of court orders show risk unacceptable — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms V Drago	Doogue & George Defence Lawyers
For the Respondent	Ms D Guesdon	Office of Public Prosecution

HIS HONOUR:

This is an application for bail by Kevin Nguyen (the ‘applicant’). He seeks bail in relation to the following charges brought by indictment and notice of related summary offences filed in the County Court of Victoria:

·aggravated home invasion;
·theft;
·common law assault;
·unlawful assault;
·committing an indictable offence whilst on bail;
·contravening a conduct condition of bail; and
·stating a false name when requested by police.

All but the last charge arise from an incident that occurred on 21 April 2019, where it is alleged that the applicant and two co-offenders forced entry into an occupied residence in Deer Park while armed with weapons.

Procedural history

The applicant has been in custody since his arrest on 25 May 2019 — a period already exceeding 16 months. On 1 November 2019, the applicant was committed to stand trial on the indictable offences, and the summary offences were transferred to the Melbourne County Court.

On 5 August 2020, he was refused bail in the County Court by his Honour Judge Ryan. Although his Honour was satisfied that exceptional circumstances justifying the grant of bail had been established, bail was refused on the basis that there was an unacceptable risk within the meaning of s 4E(1)(a) of the Bail Act 1977 (Vic) (the ‘Act’).

The matter was next listed for a final directions hearing on 22 September 2020, and a trial was listed to commence on 23 November 2020 for seven days. However, given the recent announcement by the County Court that no jury trials will proceed this year, that trial date will be vacated. When the new trial date will be is unknown and remains doubtful given the current pandemic.

The co-accused remains on remand in this matter and has not applied for bail. He is charged with the same indictable offences as the applicant as well as additional summary offences.

Aggravated home invasion is a Schedule 1 offence within the meaning of the Act.[1] Therefore, bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2]
[1]Bail…

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 Nguyen

Details

AGLC: Re Nguyen [2020] VSC 627
Case: [2020] VSC 627
Decision Date: 28 September 2020

CaseChat Overview and Summary

The applicant, Nguyen, applied for bail in the County Court of Victoria, facing charges under Schedule 1 of the Crimes (Drug) Act 1989 (Vic). The applicant had a considerable criminal history, which included breaches of court orders and previous convictions for drug-related offences. The prosecution opposed the bail application, citing the serious nature of the charges and the applicant’s past behaviour. The court had to determine whether the applicant met the criteria for bail under the Bail Act 1977 (Vic), considering the seriousness of the charges, the applicant's criminal history, the risk of reoffending, and the impact of the COVID-19 pandemic.

The court examined the applicant's criminal history and the circumstances of previous breaches of court orders, finding that these indicated a significant risk of reoffending. Additionally, the applicant's history of absconding and failure to comply with bail conditions was taken into account. The court also considered the impact of the COVID-19 pandemic, including the potential for increased stress and mental health issues in custody, and the risks associated with the applicant’s exposure to the virus. Despite these factors, the court concluded that the risk of reoffending was too high due to the breaches of court orders and the serious nature of the charges.

The County Court found that, while the applicant's circumstances warranted some consideration of bail, the risk of reoffending and the need to protect the community outweighed the potential benefits of release. The court considered the applicant's criminal history and the risk posed by the alleged offences, determining that the exceptional circumstances did not sufficiently mitigate the risk. The court also found that the breaches of court orders demonstrated an unacceptable risk that the applicant would reoffend if granted bail. Therefore, the application for bail was refused.

The court ordered that the applicant remain in custody pending the outcome of the trial. The court emphasised the seriousness of the charges and the need to protect the community from the risk of reoffending. The applicant was also reminded of the potential consequences of further breaches of court orders.

Orders