Re Nguyen (Bail Application)
[2025] VSC 179
•8 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0031
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an application for bail by Luc Van Nguyen
| LUC VAN NGUYEN |
| v |
| VICTORIA POLICE |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 & 3 April 2025 |
DATE OF RULING: | 8 April 2025 |
CASE MAY BE CITED AS: | Re Nguyen (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 179 |
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CRIMINAL LAW – Application for bail – Where allegations of cultivating and trafficking not less than commercial quantity of cannabis and other related offence – Where time in custody will likely exceed likely non-parole period but not sentence if allegations proved - Where applicant has previously complied with bail and has no criminal record – Where applicant has wife with depression and toddler and newborn - Where surety offered to Court and applicant has opportunity of employment – Exceptional circumstances test satisfied – Where false statements made in visa and other applications - Where applicant has no legal right to work or connections to Victoria and access to false identify documentation and wife has history of drug offences – Unacceptable risk that will fail to surrender into custody or will commit offences if granted bail – Bail refused – Bail Act 1977 (Vic), ss 3AAA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Carmen Randazzo SC | Giorgianni & Liang Lawyers |
| For the Respondent | Ms Emily Allan | Office of Public Prosecutions |
Contents
A. Introduction
B. The application and material relied on
C. Exceptional circumstances
D. Unacceptable risk
E. Disposition
HIS HONOUR:
A. Introduction
Mr Luc Van Nguyen, the applicant, who is now 28 years old, is applying for bail. He is charged with cultivating cannabis in a quantity that is not less than a commercial quantity in breach of s 72A of the Drugs, Poisons and Controlled Substances Act 1981, trafficking cannabis in a quantity that is not less than a commercial quantity contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981, possessing a drug of dependence, stealing electricity, and damaging property. The charges follow Senior Constable Weller, the Informant, finding the applicant present at a large and sophisticated cannabis nursery in a factory in Braeside where there were some 575 juvenile plants and seedlings, grow lights, extractor fans, and watering and fertilising equipment in one part of the factory, a further 122 plants across three rooms in another part of the factory, and another 240 mature plants again with fertilised irrigation extractor fans and grow lights in another part of the factory. According to the Informant, the applicant was observed attending at the factory with a co-accused in a vehicle and then spending several hours inside the factory. The applicant and the co-accused fled when the Informant approached them as they left the factory, but were apprehended. There was nothing but the cannabis nursery at the factory.
I am obliged to refuse bail unless the applicant can satisfy me that there are ‘exceptional circumstances that justify the grant of bail’. If there are such exceptional circumstances, then I must grant bail unless the prosecution can satisfy me that there is an ‘unacceptable risk’ that the applicant would, if granted bail, endanger the safety or welfare of any person or commit an offence while on bail or interfere with a witness or otherwise obstruct the course of justice or fail to surrender into custody in accordance with the conditions of bail.
In determining whether there are exceptional circumstances and, if so, an unacceptable risk, I must take into account the surrounding circumstances which include the nature and seriousness of the alleged offending, the strength of the prosecution case, the applicant’s criminal history (or lack of criminal history), the extent to which he has complied with conditions of any earlier grant of bail, whether at the time of the alleged offending the applicant was on bail or subject to a summons for another offence, the availability of treatment or bail support services, the length of time he is likely to spend in custody if bail is refused, and the applicant’s ‘personal circumstances, associations, home environment and background’.[1]
B. The application and material relied on
[1]Bail Act 1977 (Vic), ss 3AAA, 4A, 4E.
When the application for bail was first prepared, the submissions and affidavit material indicated that:
(a)The applicant has a partner, Ms Hien Thi Phan, a place to live, and two children. The eldest child is now three years old and the youngest is only some fourth months old. Whilst the applicant has been in custody, Ms Phan, who has no family in Australia, has been living effectively as a single mother. Ms Phan has postnatal depression, for which she is receiving treatment, and is finding it difficult to care for her daughters by herself. A psychologist opined that Ms Phan is in the ‘extremely severe range’ for depression, anxiety and stress. The three-year old is, apparently, not sleeping well and asking where her father is;
(b)The applicant had previously been charged with drug offences in 2021. He was granted bail and complied with the bail conditions until those charges were withdrawn;
(c)The owner of a handyman business, Mr Quoc Bao Nguyen, who had found the applicant to be a ‘hard-working and friendly guy’, had offered the applicant employment four days a week at $220 a day if the applicant were granted bail; and
(d)A friend of the applicant, Mr Hong Phuc Cao, who lived with him and his partner, would provide a surety of $50,000.
The then proposal was that the applicant, if granted bail, would live with Ms Phan and their children and support them from work performed for Mr Quoc Nguyen.
The application came before me on 2 April 2025, by which time further information had emerged. The proposal, ultimately, became that, if granted bail, the applicant would look after the two children while his partner returned to work in a nail salon. The evidence, by affidavit or led orally, some of which was based on information sourced from visa applications, was to the effect that:
(a)The applicant had arrived in Australia in June 2019, with his brother, on a ‘sponsored family tourist visa’ that did not permit him to work. He overstayed for a month and then on 29 August 2019 he applied for a protection visa and was granted a bridging visa that had on it a condition that he not work. On 7 May 2020, the application for a protection visa was refused. An appeal to the Administrative Appeals Tribunal was dismissed.
(b)On 28 August 2020, Ms Phan was located in a ‘residential crop house’ with 95 cannabis plants. She was arrested and held on remand. She was later convicted and sentenced to 180 days imprisonment for cultivating cannabis (which, it turns out, was by then effectively the time served).
(c)On 30 December 2020, the applicant’s bridging visa expired and he became an ‘unlawful non-citizen’. On 12 March 2021, the applicant was located at a factory in which there were 318 Cannabis plants. He attempted to flee but was arrested and charges were laid. The charges were later withdrawn. In the meantime, the applicant was released on bail and given a bridging visa. He complied with those bail conditions;
(d)On 31 August 2021, the applicant commenced proceedings in the Federal Court of Australia for judicial review of the dismissal of his appeal against the decision to reject his application for a protection visa. That application has not yet been heard. The applicant remains on a bridging visa that still has on it a condition that he not work;
(e)Ms Phan also applied for a protection visa. Her application, too, was dismissed. The Administrative Review Tribunal is yet to hear her application for review of that decision. Ms Phan is also presently on a bridging visa, although there is no condition on her visa that she not work;
(f)Ms Phan has a brother, who came with her to Australia, and an aunt in Victoria who resides in Sunshine. There is currently an outstanding warrant for her brother’s arrest in New South Wales for cultivating a commercial quantity of cannabis and his whereabouts are unknown. Also, the applicant has an aunt and uncle in Australia. When the Informant attended the premises, two people were assisting Ms Phan with the children and the Informant suggested these were the applicant’s aunt and uncle. As discussed further below, these matters were disputed;
(g)Mr Cao, the proposed guarantor, was considered not to be a reliable guarantor by Victoria Police. The application to lease the property at which he and Ms Phan resided was made by Mr Cao and Ms Phan in November 2024 and represented that they were in a relationship. The application indicated that Mr Cao had an income of $217,253 per annum but the attached payslips indicated earnings of approximately $85,000 per annum and it was not known where the ‘extra income’ was sourced. In an application for a family violence intervention order made against Mr Cao, his ex-partner alleged that Mr Cao ‘hangs out with groups of bad people which I know are either living here illegally or doing illegal drugs and running a cannabis business’. Inquiries into him were said to be ongoing;
(h)Mr Cao was no longer offering a surety. Instead, a surety of $50,000 was to be offered by Mr Hao Van Tran. Mr Tran gave oral evidence. He is an Australian citizen with a good work history and no criminal record. His relationship with the applicant was, however, somewhat tenuous: they met when the applicant did some work in his garden some four years ago and since then met ‘casually, like, ah occasionally’ or ‘almost every week’ because Mr Tran would have a coffee at a café after dropping his kids at school and the applicant would normally pick up a coffee from the same café. He had met the applicant’s partner ‘maybe four or five times’ but had never visited the applicant’s home (other than for the purposes of the bail application) or spoken to him about his work circumstances. He was prepared to act as surety, he said, because he thought of the applicant as a friend and he felt confident that the applicant would comply with the bail conditions;
(i)The factory at which the cannabis plants were found that underlie the current charges was leased using ‘well-made’ forged passports and driver’s licences. It is not alleged that the applicant was involved in that deception; it is alleged instead that this reveals that the applicant has access to criminal organisations that are able to forge identity documents;
(j)The applicant is seen on CCTV in the factory on 23 October 2024, not long after it was leased and before it was fitted out for growing cannabis, pacing the rooms and measuring distances consistently with him being involved in the fit-out of the factory as a suitable place for growing cannabis; and
(k)Phone records, it is alleged, put the applicant in the vicinity of the factory on 19 different days between 23 October and 31 December 2024.
The application was adjourned so that the applicant could obtain some further material in response to the evidence given by the Informant. The extra material put before included:
(a)An affidavit from Ms Phan in which she said, among other things, that:
(i)prior to his remand, the applicant worked as a handyman and had a strong connection to their elder daughter. No further details of the employment was provided; and
(ii)she was struggling financially and had withdrawn their elder child, who was missing her father, from kindergarten. She had been offered a job at a nail salon but did not have anyone to care for her daughters, and had complete trust and faith in the applicant to look after the children. She felt that ‘despite my mental health diagnosis, I feel that I will be able to work’. She has no family in Melbourne to help with the children and although the applicant has an uncle in Melbourne they do not have much contact with him. She accepted that the applicant’s uncle was present when the Informant visited, but that she did not know the other person who was with him; and
(iii)She or the applicant proposed to apply to have the applicant’s visa conditions varied so that he is permitted to work.
(b)Another affidavit from Ms Phan in which she said that:
(i)Her application for a visa stated that she was coming to Australia to visit relatives and that she had an aunt in Melbourne and a brother named Tuong Van Phan, but this was all false information included by the migration agents in order to increase her chances of having the visa granted (Tuong Van Phan is a friend who lives in Sydney); and
(ii)The application to lease the residence stated that the tenants were to be her and Mr Cao and that they were partners, but this was false and was said to increase the changes of obtaining the lease. Mr Cao lived with them briefly then moved out.
(c)An affidavit from the applicant’s solicitor in which she said that she had spoken to two solicitors who specialise in immigration law and asked about ‘the process and time frame required’ for the applicant to apply ‘to have his visa condition varied so that he can work’. Both said that the applicant ‘may have compelling reasons’ to have his visa conditions varied to permit him to work due to ‘financial hardship’. One said that the Department generally processes such applications within about one week of lodgement. The other said that the processing time ‘can vary between weeks to months’. They did not express a view on what the likely response to the application would be.
The Informant gave some further oral evidence, to the effect that:
(a)In his initial application for a visa to come to Australia, the applicant said that he was coming to Australia with his brother to visit his uncle and his uncle was sponsoring him. The man visiting Ms Phan when the Informant attended at their premises (whom Ms Phan identifies as the applicant’s uncle) was called Hieu Nguyen. When it was put to the Informant in cross-examination that the applicant and Ms Phan did not have much contact with Hieu Nguyen, the Informant said that, according to drivers’ licence data, Hieu Nguyen and the applicant both resided at 88 Corio Drive until mid-January 2025, that was the address to which the applicant had been bailed in 2021, that was the address that Home Affairs had for the applicant, and the applicant gave that address when the Informant first interviewed him. The Informant contended that the applicant and Ms Phan had lied when they said they had no family in Australia;
(b)Ms Phan’s visa application indicated that she had a brother. That person lived in New South Wales and, as noted earlier, there was a warrant for his arrest outstanding in New South Wales;
(c)The applicant had previously applied to have his work restriction removed from his visa, and that application had taken approximately two months to be resolved. Apparently that application was refused, but then, by means not made clear, a new visa was issued that did not prevent the applicant from working. What happened after that was not made clear, but as I understood it, it was common ground that the applicant’s current visa prevents him from working.;
(d)An informally-translated message found on the applicant’s phone sent at 11pm on 30 December 2024 by the applicant to his co-accused said that the applicant had ‘work’ the next day and that he would ‘to go work around 12 to 1pm’. The applicant was seen observed the next day at the factory at around midday. This, it was suggested, indicated that the work the applicant was referring to was work at the factory;
(e)She was concerned that if the applicant were granted bail he would fail to appear. On the previous occasion when the applicant did comply with his bail conditions, Victoria was ‘right in the thick of COVID’ and so borders were closed and there were no international flights and it was much more difficult to move around undetected. Further, she said that the evidence against the applicant this time was much stronger (as reflected by the fact that the previous charges were ultimately dropped because there was ‘insufficient evidence’), the applicant had nothing tying him and his family to Victoria, and the fact that the factory was leased with stolen details and fraudulent driver’s licenses and passports indicates that the applicant likely has access to people for whom forging identities is possible. The Informant said:
... there’s no real reason that Ms Phan, Mr Nguyen and the two children can’t jump in a car and within a few hours be interstate and that’s going to be impossible for us to find him.
(f)Another concern was that the applicant would commit further Schedule 1 or Schedule 2 offences if released on bail. In this context, she said that: the applicant’s fingerprints were found on a whisky bottle found at a drug ‘processing house’ in Mulgrave that she said was associated with the factory in Braeside; in September 2021, the applicant’s fingerprints were found on a cardboard box found at another ‘crop house’ in Box Hill; and the applicant’s vehicle was parked in the carport on the property in respect to which Ms Phan was charged and found guilty.
I reserved my decision. The following day, the applicant’s lawyers asked that I delay making my decision until they had had the opportunity of reviewing the Court of Appeal decision handed down that day in which they granted Tony Mokbel bail pending his appeal.[2] I said I would do so.
[2]Mokbel v The King [2025] VSCA 62.
On 7 April 2025, the applicant’s lawyers indicated that, having reviewed the Court of Appeal’s decision, they would not be seeking leave to file further submissions in support of the applicant’s application for bail.
C. Exceptional circumstances
The offending, if proved, would be a serious example of the offences of cultivating and trafficking in cannabis. This was, on any view, a large and sophisticated commercial cannabis growing venture.
I accept that there are triable issues in relation to the level if any of the applicant’s involvement and, in particular, whether it can be proved beyond reasonable doubt that the applicant ‘cultivated’ or ‘trafficked’ a narcotic plant, or intentionally cultivated or trafficked ‘not less than a commercial quantity’. The prosecution will invite the jury to draw the necessary inferences from circumstance including the facts that the applicant is shown (it is alleged) on CCTV pacing out internal spaces in the factory after it was first leased and before the infrastructure was installed, spent some five hours in the factory on the day of his arrest when there is nothing at the factory other than the cannabis growing infrastructure, had regularly attended Braeside or the area where the factory is located in the months before his arrest, sent a text message that on one view suggests that the factory was where he worked, fled when the police appeared, has no other apparent reason for attending the property, and his fingerprint was found on a bottle at drug premises that were associated with this factory. Further, according to the Informant, when interviewed the applicant denied ever being inside the factory, which is in conflict with what the CCTV seems to show. I accept that the evidence relating to his fingerprint is weak as the print is on a bottle that is capable of being moved by others. Even so, and despite the case being circumstantial, I do not consider the case against the applicant to be weak; although there are certainly triable issues, it appears to me to be at least moderately strong.
Any trial is unlikely to before the second half of next year. Accordingly, if not granted bail, the applicant will by then have spent something approaching 2 years on remand. The median sentence for persons convicted of cultivating cannabis in a quantity that is not less than a commercial quantity is in the order of 2½ years and the median non-parole period is in the region of 1½ years.[3] Section 3AAA(1)(aa) of the Bail Act 1977 includes as one of the ‘surrounding circumstances’, to which regard must be had, whether the time on remand would exceed the ‘term of imprisonment’, not whether it would exceed the non-parole part of the term of imprisonment. On the basis of these figures, the applicant would not spend more time on remand that the term of any imprisonment.
[3]These figures come from ‘Sentencing Snapshot 293’, a publication of the Sentencing Advisory Council produced by the applicant.
I am, nonetheless, satisfied that there are exceptional circumstances that, but for the question of unacceptable risk, would justify the grant of bail. The circumstances that together, in my view, satisfy that test include the following:
(a)The applicant has no criminal record and complied with his bail conditions when released on bail in 2021;
(b)The applicant has a place to live, a partner and two children, and evidence placed before me from a general practitioner and psychologist establishes that his partner has postnatal depression, for which she is receiving treatment, and is finding it difficult to care for her daughters by herself. A psychologist has opined that the applicant’s partner is in the ‘extremely severe range’ for depression, anxiety and stress. The three-year old is, apparently, not sleeping well and asking where her father is; and
(c)A friend has offered to put up a bail guarantee in the amount of $50,000.
D. Unacceptable risk
I am, however, satisfied that the risk of the applicant if released on bail of committing an offence while on bail or failing to surrender into custody in accordance with the conditions of bail is, in the circumstances, unacceptable and cannot be adequately ameliorated by the imposition of conditions.
I consider that the applicant, if he wished to do so, could move, with or without his family, interstate or indeed overseas and not surrender into custody to face these charges, and in my view the risk that he might do so is unacceptable in the circumstances. He has no real family or other ties to Victoria other than his wife and two children, neither of whom are at school, and, I accept, at least for the purpose of assessing risk, that he probably has access to persons who could provide him with fake identity documents. He also faces the problem that he is presently in Australia on a bridging visa and, if he pleads guilty or these offences are proved and is not granted a protection visa, the prospects of his being able lawfully to remain in Australia after he has served a term of imprisonment is reduced. Further, I agree with the Informant that little comfort can be obtained from the fact that the applicant did not breach his bail conditions in 2021 because the case against him then was weaker than the case against him now and COVID made interstate or overseas movement much more difficult to perform undetected than is presently the case.
Also, the false statements in the visa applications and the applicant’s apparent preparedness to work illegally are of concern. I accept the applicant’s argument put through his counsel and supported by Ms Phan’s affidavit that migration agents prepared their visa applications. But neither Ms Phan nor the applicant were children when those applications were prepared and I infer that they signed them and did so knowing that they contained false information intended to mislead the authorities, and I note that Ms Phan does not suggest otherwise. Similarly, the false statement in Ms Phan’s application to lease her current property that Mr Cao was her partner was knowingly made by Ms Phan and, I conclude in the absence of any suggestion to the contrary by Ms Phan, with the applicant’s knowledge if not approval, so as to mislead the landlord into giving them the lease instead of someone else. These matters suggest that the applicant and Ms Phan are prepared to act dishonestly when they feel it is in their interests to do so at least to the extent that they would not feel constrained to comply with bail conditions.
I am also satisfied that there is an unacceptable risk that the applicant would commit a Schedule 1 or 2 offence if granted bail. The applicant has been in Australia since June 2019. Ms Phan has been in Australia since August 2019. Neither he nor Ms Phan are, apparently, entitled to social security benefits and so they both need to earn money to survive. No evidence of any actual earnings by either of them has been put before me, other than vague statements that at some times the applicant worked as a handyman and Ms Phan in a nail salon. Ms Phan, it has been established, engaged in drug offences, presumably for money, that warranted a period of imprisonment in 2021. The applicant, on the allegations, was working this year, again presumably for money, at a cannabis nursery. The applicant, at present, has no legal right to work in Australia and it is not clear whether that situation will ever change or if so when such a change could come into effect. Accordingly, there is a real risk, that in my assessment is unacceptable in the circumstances, that the applicant would engage in drug-related offences in order to earn money if he were granted bail.
In reaching these conclusions, I have not overlooked the position of Ms Phan. I have some difficulty accepting that she is as isolated as her affidavit would suggest in circumstances where, for the reasons set out above, she has been prepared to make false representation to further her interest in the past, has a criminal record, says she has worked in a nail salon and seemingly still has contact with people in that business, and the one time that the Informant attended her house the applicant’s uncle was there with another person helping with the children. That said, I accept that not having the assistance of her partner with the care of her young children will substantially increase the burdens on her physically and emotionally and add to the distress of their children. Even bearing this in mind, however, I consider that the risk of the applicant failing to surrender into custody or committing offences if bail is granted remains unacceptable.
I have also not overlooked the fact that a $50,000 surety has been offered by Mr Tran. However, the relationship between him and the applicant is sufficiently distant that the risk that the applicant might breach his bail conditions is not sufficiently ameliorated to make the risk acceptable. The extent to which a bailed person might be prepared to breach bail conditions in a manner that leads to the forfeit of a surety may be informed by the nature of the relationship between the bailed person and the surety: a bailed person whose parents have put up their family home might be thought unlikely to engage in conduct that could lead to that home being forfeited because of the ties of familial affection. But that is not this case. In my view, the relationship between Mr Tran and the applicant is sufficiently distant that I am not satisfied that the applicant, who is facing serious charges, would be influenced to any real extent not to breach his bail conditions out of a concern that Mr Tran’s security might be forfeited.
E. Disposition
The application for bail will be dismissed.
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