Re Nguyen
[2020] VSC 627
•28 September 2020
| 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 Act 1977 (Vic) sch 1 item 4 (‘Bail Act’).
[2]Ibid ss 4AA(1) and 4A.
The alleged offending
By way of background, the complainants, Truc Phung and Hien Tran, and the applicant were known to each other as Ms Tran had previously worked with the applicant’s ex-wife for some 18 months.
On 21 April 2019, the complainants and their two children were present at the family home in Deer Park. They were leaving on a family trip to Vietnam the following morning and had bags and suitcases packed, which included gifts.
Around 5.00am, the applicant, his co-accused, Andrew Szabo, and a third, unknown male arrived in Deer Park in a grey Holden Commodore Crewman (‘Crewman’) with registration 10X9EH. The applicant’s ex-wife had given the applicant the Crewman in their divorce, although it remained registered in her name.
The men parked outside a residence a short distance from the complainants’ home. It is alleged the applicant and the co-offenders are captured on closed-circuit television (‘CCTV’) footage walking from the vehicle towards the complainants’ residence at 5:02am.
The applicant and co-accused entered the complainants’ driveway and crouched behind Mr Phung’s vehicle to avoid detection by other CCTV cameras. To balance himself, the co-accused placed his hand on the vehicle near the driver’s side door. Both the co-accused and the applicant had their faces covered; however, at one point, the applicant lifted up his face covering, revealing his face to a CCTV camera at the residence.
The two men then approached the front door, where the applicant used a silver crowbar to force open the security door. The co-accused then pushed out a glass panel beside the door and reached through to unlocked it from inside. The co-accused entered the house carrying a small knife, followed by the applicant and the unknown co-offender.
Ms Tran, who had risen early, heard the noise and approached the front door, where she was confronted by the three offenders. She called out to her husband that it was a robbery and ran to the bathroom, locking herself inside.
Mr Phung was in the bedroom with their two children and was awoken by his wife’s scream. He immediately shut the bedroom door, but the co-accused forced it open and entered, followed by the applicant. The co-accused is alleged to have pushed Mr Phung onto the bed, held the knife to his stomach and pinned his right arm behind his back, causing bruising and soreness. The co-accused asked where his wife was, and the applicant responded, ‘She’s called the police.’ Mr Phung told the men his children were in the room and asked for them not to be hurt. The co-accused then took Mr Phung into the lounge room. The co-accused motioned towards him with the knife, as if to stab him, saying, ‘Where is the money?’ Mr Phung said there was none.
It is alleged that the applicant and the unknown offender went through the house looking for Ms Tran and ransacking the house. The applicant attempted to gain access to the bathroom where Ms Tran was hiding and was assisted by the co-accused, who kicked the door open. However, neither saw Ms Tran as she had hidden in the shower.
The three offenders continued to make demands for money. The unknown co-offender went through Ms Tran’s purse and took approximately $500 in cash, bank cards and a driver’s licence. It is alleged that the three men took the family’s luggage, including two backpacks and a large suitcase, which contained clothing, footwear, perfumes, smartwatch and headphones. CCTV footage captured the three offenders leaving the residence carrying the stolen items at 5:14 am and driving from the scene in the Crewman.
Investigation and arrest
Mr Phung immediately called 000 and gave a description of the offenders. Police attended the scene shortly after and reviewed the CCTV footage from the home with each of the complainants. From that footage, both complainants identified the applicant as one of the three offenders.
From their residence, police seized a green jacket that the applicant allegedly used to cover his face during the commission of the offences, as well as another jacket, which the complainants’ did not recognise. Investigators believe the applicant also brought the navy jacket into the house. The green jacket has not yet been tested for the presence of DNA.
Handprints were observed on Mr Phung’s vehicle, and the area was swabbed for biological samples for DNA testing. The results of the swab show that it is 100 billion times more likely that the co-accused is a contributor to the sample than a person chosen at random from the community.
Police issued an alert for the Crewman and, on 22 May 2019, the vehicle was spotted being driven by the co-accused. Following his arrest, he gave a ‘no record of interview with police. The vehicle was seized by police, and a brown handled pocket-knife was located in it. A search warrant executed at the co-accused’s residence located several items stolen from the complainants’ residence.
On 25 May 2019, police were called to a ‘suspicious loitering’ and located the applicant, sitting in a vehicle. When questioned by police, he provided a false name and date of birth. The applicant was noted to be wearing similar grey and black runners as well as a gold cross necklace worn by one of the offenders in the CCTV footage from the scene.
During his interview with police, he made no comment to specific allegations, but did make the following statements:
·He admitted to owning the Crewman, which no one else drives, and the vehicle was still at his residence — as opposed to police custody.
·He was at home with his uncle on 21 April 2019 — it is not clear to me whether this is the same uncle with whom it is proposed that the applicant will reside were he to be granted bail.
·He denied knowing or having met the complainants.
·He denied he was the person depicted in an image from the CCTV footage purporting to show his face and said the person looks like a ‘ghost’.
At the time of the alleged offending, the applicant was on two grants of bail, the conditions of which included that he reside at an address at St Albans. Despite this, subsequent enquiries apparently established that he had never resided at that address.
The applicant
The applicant is 40 years of age. He arrived in Australia from Vietnam at age 16 with his family. He was previously married and has one son, who is three years old.
In Vietnam, he did not pursue an education beyond Year 9 as he was expected to begin work. Upon arrival in Australia, he was employed as a fruit picker. His father owns and works on a large farm in South Australia, and it is said that the applicant hopes to work alongside his father and two brothers in that family business. His mother and sister reside in Queensland.
The applicant had a significant history of drug abuse, primarily heroin. The circumstances giving rise to his addiction involve self-medication in the context of serious injuries sustained in a number of car accidents. He is now prescribed methadone and has maintained abstinence from drugs whilst in custody.
The applicant was diagnosed with schizophrenia in 2005 and was previously treated with Seroquel in the community. He is not currently symptomatic, and it is reported that this medication has not been required while in custody. He also suffers from Hepatitis C and severe asthma. Clinical notes from his time in custody reflect that he has received Ventolin and Symbicort in relation to his asthma, but there was limited evidence in relation to actual severity of this condition.
Criminal history
The applicant has a significant criminal history, primarily consisting of offences relating to drugs, driving, dishonesty, and weapons. He also has a prior conviction in 2006 for armed robbery, attempted theft of a motor vehicle, and theft. He was sentenced in the Melbourne County Court on 18 October 2006 to two years and six months’ imprisonment with a non-parole period of 15 months.[3]
[3]R v Tu Nguyen [2006] VCC 1363.
As stated, the applicant was on two grants of bail for matters that have since resolved. His first grant of bail was in relation to charges of dishonestly retaining stolen goods, going equipped to steal, and possessing a prohibited weapon. He was originally sentenced to three months’ imprisonment for those offences on 14 June 2019.
The second grant of bail was in relation to contravening the conditions of a 12-month Community Correction Order, imposed on 6 August 2018, in respect of offences of making a threat to kill and dishonestly retaining stolen goods. On 14 June 2019, the breach of the order was proven, and he was resentenced on the original offences to six months’ imprisonment.
He successfully appealed both sentences on 16 August 2019 and received an aggregate sentence of six months’ imprisonment, with 81 days declared as pre-sentence detention.
The applicable legislation
In the present application, as he is charged with a Schedule 1 offence within the meaning of the Act, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail.[4]
[4]Ibid ss 4AA(1), 4A(1A), 4A(2).
In considering whether exceptional circumstances exist, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[5]
[5]Ibid s 4A(3).
In order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’.[6]
[6]Re CT [2018] VSC 559 [64] citing with approval Re Sam [2017] VSC 91 [22].
If the Court is satisfied as to the existence of exceptional circumstances, it must then apply the ‘unacceptable risk test’.[7] That is, bail must be refused if the Court is satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act and that such risk is an unacceptable risk.
[7]Bail Act s 4D(1)(a).
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[8]
[8]Ibid s 1B(2).
The applicant’s contentions
The applicant relies upon the following matters that either alone or in combination demonstrate the existence of exceptional circumstances justifying the grant of bail.
Special vulnerability and onerous custodial conditions
Ms Drago, on behalf of the applicant, submitted that the applicant’s severe asthma has worsened significantly whilst in custody, notwithstanding that he has access to treatment in the form of Ventolin and Symbicort. As a result, he was for a period deemed medically unfit to work and, as of 25 February 2020, he is now deemed medically unfit to do physical work.
The applicant put, through counsel, that he is distressed by the severity of his symptoms and the prospect of contracting COVID-19 whilst in custody. It was submitted that this special vulnerability alone is exceptional, particularly given that there have been positive cases of COVID-19 in the Victorian prison system.
In addition, Ms Drago submitted that the applicant is facing more onerous conditions in custody as a result of restrictions introduced due to the COVID-19 pandemic. It was argued that the applicant’s inability to work, the reduction in therapeutic courses, and the loss of personal visits have had a severe and negative effect on him.
Delay and likely sentence
Counsel for the applicant submitted he will experience significant delay in the finalisation of these proceedings. The applicant has been in custody since 25 May 2019 and will have spent 482 days in custody as at the first date of the hearing of this application. It is acknowledged that part of that time has been spent serving a sentence on other matters, which is a period of about six months.
Ms Drago contended that, although the County Court relisting schedule indicates the trial may be listed in Term 1 of 2022, at the moment there is no such certainty. Given the trial date of 23 November 2020 will be vacated and no new date has been set, the applicant is facing an indefinite period of remand. It was put that even if the trial were proceeding in Term 1 of 2022, the delay would be approaching three years. Counsel submitted that the magnitude of this delay, on its own, is an exceptional circumstance.
As to the likely sentence, it was conceded that, if the applicant is found guilty of the primary charge of aggravated home invasion, he would receive a lengthy custodial sentence with a minimum non-parole period of three years unless ‘special reasons’ existed.[9]However, it was not set out as to what the special reasons might be in this case.
[9]See Sentencing Act 1991 (Vic) s 10AC.
Nature of the alleged offending and strength of the prosecution case
Ms Drago conceded, on the applicant’s behalf, that the alleged offending is a serious example of the primary offences. However, it was submitted that the prosecution case has difficulties, particularly in relation to the identification evidence.
Ms Drago put that identification of the applicant is largely based on the recognition by the complainants from the CCTV footage and would have to be the subject of appropriate warnings to the jury at trial. It was also put that the gold necklace worn by the applicant at his arrest, which is said to match that worn by the offender, is generic with no distinctive features. Ms Drago further submitted that, unlike the co-accused, there is no forensic evidence placing the applicant at the scene of the offending.
Counsel for the applicant noted that the CCTV footage alleged to have captured the applicant’s vehicle is ‘little more than an outline of a vehicle’ and no registration is visible. A challenge to the admissibility of that evidence was foreshadowed.
Accommodation and strong ties to the jurisdiction
If granted bail, the applicant proposes to reside with his uncle, Christopher Lee, at 55 Chartwell Crescent, Derrimut. Mr Lee resides with his sister and her two children at that address.
Mr Lee gave evidence on the hearing of the application and indicated his willingness to have the applicant reside with him if he were granted bail. As I understand it, the applicant had lived there on a previous occasion as a condition of bail, but Mr Lee told him to leave because the applicant was using drugs. Mr Lee told the Court that, were that to happen again, he would call the police as he would rather see him in gaol than using drugs. However, he agreed with the proposition that he does not have any control over the applicant’s action because he is an adult and makes his own decisions.
It was also submitted in the written materials on behalf of the applicant that he has strong ties to the jurisdiction through his former wife and son who reside in Melbourne, and with whom he maintains regular contact.
Availability of bail support services
Counsel for the applicant conceded that drug treatment and support in the community were necessary to address the risk flowing from his drug use. To that end, the applicant was assessed by CISP Remand Outreach Program (‘CROP’) on 14 September 2020 as suitable for community referral without ongoing case management. However, the CROP report does not specify which support services the applicant would be referred to if granted bail. The report states that the applicant would make his own inquiries in relation to continuing the methadone program and managing his mental health through his GP.
The Court was also provided with a letter from the Oydssey House, dated 17 September 2020. The letter states that the Odyssey House has capacity to provide the applicant with support in relation to his drug use, but a formal treatment plan has not yet been made. Accordingly, there are scant details as to the programming the applicant would undertake.
Unacceptable risk
Ms Drago, on behalf of the applicant, submitted that the availability of stable accommodation, family support and drug treatment would be protective factors that addressed his risk and that appropriate conditions can be imposed to further reduce any risk to an acceptable level.
Further, counsel conceded the applicant’s poor history of compliance with court orders, but relied on his abstinence from drug use and the deterrent effect that the prospect of returning to custody would have on him, given his lengthy period on remand, which has been distressing due to his severe asthma and lockdown conditions.
The respondent’s submissions
Ms Guesdon, counsel for the respondent, initially opposed the application on the basis that the applicant had not demonstrated the existence of exceptional circumstances as well as the unacceptable risk posed by the applicant were he released on bail. In the course of her submissions, Ms Guesdon appeared to concede that a delay of three years was capable of establishing exceptional circumstances. She accepted the real issue in this application was the unacceptable risk.
In relation to the applicant’s special vulnerability and the onerous conditions in custody, the respondent submitted that there is insufficient evidence before the Court to make any findings regarding the severity of his asthma. Ms Guesdon noted that the clinical notes provided indicate that his asthma is well-controlled with treatment in custody. It was also submitted that prisoners have been given increased access to phone calls, video visits, and email to assist with the burden of custody during the pandemic.
Regarding the strength of the prosecution case, it was contended that the prosecution further rely on the circumstantial evidence in relation to the applicant’s vehicle, the gold necklace and the lies the applicant told during his record of interview, which will bear on his credit.
Unacceptable risk
Counsel for the respondent submitted that the main risk posed by the applicant is the risk of reoffending. Ms Guesdon referred to the fact the applicant was subject to two grants of bail at the time of the alleged offending in this matter and has a poor history of compliance with court orders, including:
·Four convictions for failing to answer bail, three convictions for committing an indictable offence whilst on bail, and one conviction for contravening a conduct condition of bail in 2016;
·Seven prior convictions for failing to answer bail between 2006 and 2010.
·Two convictions each for contraventions of a CCO (2016 and 2019) and a suspended sentence (2011 and 2014) and one conviction for contravening a community-based order in 2010.
Ms Guesdon also submitted the applicant’s history of failing to appear and other findings of guilt for non-compliance with grants of bail demonstrate the applicant is an unacceptable risk of failing to appear in accordance with bail.
It was further submitted there is an unacceptable risk of endangering the safety of welfare of any person, which arises from the serious nature of the allegations against him. The applicant is charged with committing a home invasion in company in circumstances where there was a family present, including two young children, and weapons and threats were used. Counsel also referred to the applicant’s previous conviction for similar offending, being an armed robbery, for which he was sentenced in the County Court in 2006.
Counsel further expressed concern for the safety of the complainants and the possibility that the applicant may attempt to interfere with them. It was noted that the complainants are strongly opposed to the applicant being granted bail.
On behalf of the respondent, counsel submitted that, given his history of non-compliance with bail and other court orders, the Court could not be satisfied that the imposition of conditions or the availability of stable accommodation, family support and community treatment could mitigate the risk to an acceptable level.
Counsel contended that, while the respondent does not take issue with the character Mr Lee and his family, there are serious concerns regarding their ability to adequately supervise the applicant based on Mr Lee’s own admission. Ms Guedson also submitted that the applicant’s relationship with his ex-wife and child were not protective factors as those relationships have not deterred him in the past.
It was further submitted that the proposed treatment in the community provided by CROP is inadequate as the program does not provide ongoing support or supervision, and his participation with any of CROP’s referrals would be on a voluntary basis.
Analysis
In order to demonstrate the existence of exceptional circumstances, the applicant relied primarily on the likely delay in the trial of this matter as well as the applicant’s asthmatic condition combined with the onerous conditions of custody.
I would observe at this stage that the case against the applicant in particular does appear, to some degree, to be circumstantial. Despite the fact there is no forensic evidence connecting the applicant to the home as is the case with his co-accused, the prosecution does have other evidence that may do so when coupled with the identification of him by the complainants. Although the prosecution relies on some inferential reasoning, in my opinion, the prosecution case is not properly described as weak.
Turning next to the applicant’s asthmatic condition, I have reviewed the clinical notes of his treatment in custody, which is the only evidence provided in relation to his condition. As counsel for the respondent submitted, the applicant’s issues appear to relate to the incorrect use of the medication and, but for that, the condition has been able to be managed. That does not mean, however, that the existence of that condition does not cause the applicant concern and discomfort. Indeed, it appears that the applicant has, at times, hoarded inhalers in case of lockdowns at the prison.
Clearly, his discomfort is also tied to the more onerous conditions that now exist in custody as a result of COVID-19. As this Court has previously held, time on remand may be significantly more difficult than usual given the restrictions on visits and facilities, and the anxiety associated with the risk of contracting COVID-19 in custody.[10] It must be noted that it remains the case that, unlike other jurisdictions, significant outbreaks in Victorian prisons have been avoided.
[10]See eg Re Diab [2020] VSC 196; Re Guinane [2020] VSC 208.
As to the issue of delay in this matter, it has been accepted by the parties that, based on the present relisting schedule from the County Court, the likely delay until trial will be in the order of three years. Unfortunately, as a result of the COVID-19 pandemic, these significant delays are no longer uncommon but that does not mean they are not still exceptional.
I do not proceed on the basis that his time on remand is likely to exceed the sentence that would be imposed on the applicant if convicted of these matters; I do not believe it would. However, in my view, that delay, when taken together with the present uncertainty of when the matter can be resolved, is of such a length that it is capable of amounting to exceptional circumstances that would justify a grant of bail, in combination with the other matters raised.
That is not the end of the consideration of the application. I must next determine whether the respondent has established that the risk of releasing the applicant on bail is unacceptable.
As was properly conceded by counsel for the applicant, the alleged offences are serious in nature, having been committed in the early hours of the morning in the presence of children. It was also conceded that the applicant has a poor history of compliance with bail conditions and court orders generally. It is significant that he was on two grants of bail when the present offences were alleged to have been committed as is his lengthy criminal history that includes similar offences.
On behalf of the applicant, it was been put that his present period of remand has been sufficiently traumatic, such that it has had the salutary effect that his previous times in custody failed to achieve, and that he has to developed insight into the consequences of breaching conditions on any grant of bail — although that was a matter of assertion rather than evidence.
In response, counsel for the respondent submitted that the applicant has routinely demonstrated he cannot be controlled and that he will not engage with treatment offered for his drug issues. I agree.
I am persuaded that neither Mr Lee nor his sister would be capable of controlling the behaviour of the applicant, particularly if he relapsed into using drugs which, on his history, is likely. This is so despite the potential, although as yet undefined, support from Odyssey and CROP . I am sure Mr Lee would do his best, but I doubt that it will be sufficient.
In my view, given the nature of the offending alleged in combination with the applicant’s poor criminal record and history compliance with bail orders, community-based sentences, and court orders generally, the respondent has satisfied me that, if released on bail, there is a risk the applicant would endanger the safety or welfare of any person, commit an offence whilst on bail, and fail to surrender in accordance with any conditions of his bail. I am also satisfied that the risk is an unacceptable one and that it cannot be mitigated by the imposition of conditions.
Conclusion
The application for bail is refused.