Re Nguyen (Bail Application)
[2025] VSC 147
•26 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0045
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by KEVIN NGUYEN
| KEVIN NGUYEN | Applicant |
| v | |
| VICTORIA POLICE | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2025 |
DATE OF RULING: | 26 March 2025 |
CASE MAY BE CITED AS: | Re Nguyen (Bail Application) (First Revision) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 147 |
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CRIMINAL LAW – Application for Bail – Where concerning criminal history and serious allegations of drug trafficking and possession of weapons – Where triable issues – Where parents offer significant surety – Where significant delay - Where bail sought on stringent conditions including three-months of inpatient treatment at Harmony House and continued mental health treatment – Exceptional circumstances established – Not an unacceptable risk – Bail granted on conditions proposed – Bail Act 1977 (Vic) ss 1B, 3AA, 4A(1A), 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms P Marcou | Prince Legal |
| For the Respondent | Mr M Wilson | Office of Public Prosecutions |
TABLE OF CONTENTS
A. Introduction................................................................................................................................... 1
B. The charges..................................................................................................................................... 1
C. Should bail be granted?.............................................................................................................. 4
C.1The Bail Amendment Act 2025 (Vic)..................................................................................... 5
C.2 The applicant’s criminal history.......................................................................................... 6
C.3 The applicant’s background, drug problem and Harmony House................................ 7
C.4Strength of prosecution case................................................................................................ 9
C.5Delay..................................................................................................................................... 10
C.6 Exceptional Circumstances................................................................................................. 10
C.7 Unacceptable risk................................................................................................................. 10
D. Disposition.................................................................................................................................. 12
HIS HONOUR:
A. Introduction
The applicant was arrested on 7 November 2024. He applied for bail at the Melbourne Magistrates Court on 5 December 2024. That application was refused on 9 December 2024. Today, he applied for bail in this Court. I granted bail on certain conditions, and said that I would provide reasons later. These are those reasons.
B. The charges
The following is said to have been found in the execution of a search warrant on 7 November 2024 at the applicant’s premises:
(a) In the applicant’s bedroom, a zip lock bag containing a white crystal substance;
(b) Inside wardrobes attached to the applicant’s bedroom, various zip lock bags containing brown powder, white powder, some 51 tablets, a white crystalline substance, and green vegetable matter, three firearm magazines containing ammunition, a shotgun ammunition packet containing eight types of ammunition rounds and a camouflage pouch containing 69 rounds of ammunition;
(c) In other upstairs bedrooms, more zip lock bags containing white powder, an ‘aloe vera’ bottle containing a clear viscous substance, a clear bag labelled ‘666’, a paper cup and a glass jar containing a white crystalline substance and four plastic bags containing green vegetable matter, a ‘Beretta’ gel blaster handgun (an imitation firearm), and a bottle of ‘aloe vera’ containing a clear viscous substance;
(d) In an upstairs living room, further ammunition;
(e) In the garage, a zip lock bag containing white powder and bottles of ‘aloe vera’ containing a clear viscous substance, and further bags of green vegetable matter;
(f) In a black ‘Hugo Boss’ bumbag located in the driveway near where the applicant was standing prior to his arrest, various zip lock bags containing brown powder, a white crystalline substance and white powder, and a semi-automatic 9mm handgun and ammunition;
(g) In a black ‘Champion’ duffel bag located in the upstairs living room of the applicant’s residence, a plastic bag containing white powder and some ‘knuckledusters’ and a round of ammunition.
Another zip lock bag containing white powder was found on the applicant’s person, along with an iPhone. The iPhone contained text messages and photographs sent to and received from ‘Rideordye’ that, at first blush, appear to relate to drug trafficking and attempts to source firearms.
Analysis of the various substances seized at the applicant’s residence and on his person suggests that the following was seized, in varying levels of purity:
(a) 1953 grams of methylamphetamine;
(b) 1285.5 grams of cocaine;
(c) 2731.4 grams of ketamine;
(d) 101.5 grams of diacetylmorphine (also referred to as heroin);
(e) 771 grams of 3,4-methylenedioxy-N-methylamphetamine (also referred to as ecstasy or MDMA);
(f) 2838.8 grams of 1,4-butanediol;
(g) Over 4.6 kgs of cannabis; and
(h) Some ‘precursor chemicals’.
The applicant faces a number of serious charges. They include the following, some of which I assume are in the alternative:
(a) Trafficking in a large commercial quantity of a drug of dependence (ketamine), trafficking in a commercial quantity of a drug of dependence (ketamine), trafficking in a drug of dependence (ketamine), and possessing a drug of dependence (ketamine);
(b) Trafficking in a commercial quantity of a drug of dependence (ecstasy), trafficking in a drug of dependence (ecstasy), and possessing a drug of dependence (ecstasy);
(c) Trafficking in a commercial quantity of a drug of dependence (methylamphetamine), trafficking in a drug of dependence (methylamphetamine), and possessing a drug of dependence (methylamphetamine);
(d) Trafficking in a commercial quantity of a drug of dependence (1,4-butanediol), trafficking in a drug of dependence (1,4-butanediol) and possessing a drug of dependence (1,4-butanediol);
(e) Trafficking in a commercial quantity of a drug of dependence (heroin), trafficking in a drug of dependence (heroin) and possessing a drug of dependence (heroin).
(f) Trafficking in a drug of dependence (cocaine) and possessing a drug of dependence (cocaine).
(g) Trafficking in a drug of dependence (cannabis) and possessing a drug of dependence (cannabis).
(h) Possessing a prescribed precursor chemical.
(i) Possessing a registered general category handgun and failing to store the firearm in a secure manner. The applicant was not the holder of a licence permitting him to possess a handgun under the Firearms Act 1996.
(j) Possessing an imitation firearm. The applicant did not have an exemption or approval permitting him to possess an imitation firearm under the Control of Weapons Act 1990.
(k) Possessing cartridge ammunition. The applicant was not the holder of a licence permitting him to possess cartridge ammunition under the Firearms Act 1996.
(l) Dealing with proceeds of crime and dealing with property suspected of being proceeds of crime. Inside the black bumbag, $100 in Australian currency was located. Three unspecified ‘quantities’ of Australian currency were also found in the applicant’s bedroom, inside a walk in wardrobe. In an upstairs bedroom of the applicant’s residence, one driver licence in the name of Stephen Wills was found. A further three driver licences in the name of Stephen Wills were found in the applicant’s bedroom.
(m) Possessing a prohibited weapon, being the knuckledusters. The applicant did not have an exemption or approval permitting him to possess knuckledusters under the Control of Weapons Act 1990.
C. Should bail be granted?
Because the applicant is accused of a Schedule 1 offence, I am required to refuse bail unless the applicant can persuade me that ‘exceptional circumstances exist that justify the grant of bail’.[1] In considering whether exceptional circumstances exist that justify the grant of bail, I must take into account the ‘surrounding circumstances’.[2] The surrounding circumstances include whether the applicant would be sentenced to a term of imprisonment and, if so, whether the time the applicant would spend remanded in custody if bail is refused would exceed that term of imprisonment, the nature and seriousness of the alleged offending, the strength of the prosecution case, the applicant’s criminal history, the extent to which the applicant has complied with the conditions of any earlier grant of bail, and the applicant’s ‘personal circumstances, associations, home environment and background.’[3] If I am satisfied that exceptional circumstances exist that justify the grant of bail, I must then grant bail unless I’m satisfied that there is an ‘unacceptable risk’ that the applicant would, if released on bail, commit further offences, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of bail.[4] When considering whether a risk of that type is an ‘unacceptable risk’, I must take into account, again, the surrounding circumstances and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[5]
C.1 The Bail Amendment Act 2025 (Vic)
[1]Bail Act 1977 (Vic), s 4A(1A).
[2]Ibid s 4A(3).
[3]Ibid ss 3AAA, 4A, 4E.
[4]Bail Act 1977 4E(1).
[5]Ibid 4E(3).
The Bail Act 1977 has been amended by the Bail Amendment Act 2025. Some of those amendments commence today. They are said in the transitional provisions to apply to ‘an application made … on or after the commencement of that amendment’.[6] The applicant filed a ‘notice of intention to make an application for bail’ on 12 March 2025. If the application for bail is taken to have been made on 12 March 2025, the amendments introduced by the Bail Amendment Act 2025 do not apply. If the application for bail is taken to be made today, then they do. The amendments, speaking generally, make it more difficult for an applicant to be granted bail (although perhaps more so in the case of a child).
[6]Ibid s 34(24B), inserted by s 10 of the Bail Amendment Act 2025.
The prosecution indicated that it was prepared to accept that the amendments made by the Bail Amendment Act 2025 do not apply to this application. I am not sure that this is correct. Without having heard full argument on the matter, I incline to the view that an application for bail is made when the application is made to the Court rather than when a prior document giving notice of that application is filed. It is, however, not necessary for me to decide whether this is so because the decision I reached would have been the same in either circumstances. That is, I would have granted bail even if I were required to recognise that the safety of the community and persons affected by crime is of ‘overarching importance’ rather than merely of equal importance to the presumption of innocence and the right to liberty and the other matters set out as guiding principles in the Bail Act 1977.[7]
[7]The Bail Amendment Act 2025 removed the importance of ‘maximising the safety of the community and persons affected by crime to the greatest extent possible’ from the list of matters recognised as important in s 1B of the Bail Act 1977 and introduced it as a separate matter of ‘overarching importance’ in a new s 1B(1AA).
C.2 The applicant’s criminal history
In contending that the applicant posed an unacceptable risk if released on bail, the prosecution relied, unsurprisingly, on his criminal record. That record is concerning and may be summarised as follows:
(a) In 2012, when the applicant was 20 years old, he was fined for causing criminal damage and for unlawful assault;
(b) On 1 September 2012, the applicant, with two friends, beat up someone in a shopping centre following a dispute arising associated with parking. In the course of assaulting that person, the applicant stabbed him seven times in the back. The victim had a punctured lung and lost a lot of blood. In May 2014, when sentencing the applicant for intentionally causing serious injury, the sentencing judge stated:
In Kevin Nguyen’s case, it was, objectively, a very serious example of intentionally causing serious injury. Kevin Nguyen’s response was outrageous. He stabbed [the victim] several times in vital areas at a point when he was already being assaulted by two others. [The victim’s] injuries were very serious and life-threatening. Many less serious stabbing incidents have resulted in death. I am prepared to accept that, in his intoxicated state, Mr Nguyen may not have intended [the victim] is to suffer injuries as serious as those actually caused. But it was still a ferocious, cowardly and totally unnecessary attack.[8]
[8]R v Nguyen [2014] VSC 203, [140] (Croucher J).
(c) The applicant was sentenced to five years imprisonment with a non-parole period of two years and six months (of which 82 days of pre-sentence detention were already served). In deciding that sentence, the sentencing judge expressed the view that the applicant had ‘very good prospects of rehabilitation‘;
(d) On 5 January 2015, the applicant was convicted and fined for shoplifting, stating a false name when requested, stating a false address when requested, and failing to answer bail;
(e) On 19 October 2015, the applicant was given a further prison sentence of six months, with three months concurrent, for intentionally causing injury and failing to answer bail;
(f) On 12 November 2018, the applicant was sentenced to a total of three years and five months with a non-parole period of 22 months on four counts of trafficking a drug of dependence, one count of possessing a drug of dependence, one count of possessing a Schedule 4 poison, and one count of dealing with proceeds of crime; and
(g) On 2 October 2020, the applicant was fined for breaching his parole.
This is a concerning criminal history because it reveals a preparedness to engage in further criminal activity even following a period of imprisonment and, when considered alongside the fact that firearms and ammunition were, it is alleged, found on the applicant’s premises, a real risk arises that the applicant, if released on bail, might cause further injury to members of the community or engage in further significant criminal behaviour. It also reveals a preparedness on the part of the applicant to breach bail and to breach parole.
C.3 The applicant’s background, drug problem and Harmony House
The applicant was born in Australia to Vietnamese and Cambodian parents. He is currently 33 years old. He claims to have been sexually abused by his ‘old great grandpa’ and physically and emotionally abused from a very early age by his older brother. He is in a long-term relationship with Alison Huynh, the co-accused to these proceedings, with whom he shares a 2 year old child. Ms Huynh is currently on bail. He claims to have had problems with various drugs including methamphetamine, cannabis and heroin since his teenage years and also ketamine and Gamma-hydroxybutyrate, or GHB in more recent times.
The applicant’s parents, both of whom are engaged in employment and neither of which has a criminal history, confirm that the applicant has a significant drug problem. They have offered to put up as surety the sum of $800,000, being in effect the equity in their home, and to fund some inpatient treatment for their son.
In November 2024, the applicant was assessed by Carlo La Marchesina, the Clinical Director and General Manager at Harmony House as ‘suitable to undertake the 90 day primary Harmony House residential treatment program as an inpatient’. On 24 February 2025, the applicant was assessed by the forensic psychologist Mr Cummins. Mr Cummins diagnosed a Polysubstance Use Disorder and chronic intermittent symptoms of a Major Depressive Disorder and a Complex Post Traumatic Stress Disorder. Mr Cummins opined that the applicant ‘presented in a manner indicating he was now motivated to engage in residential drug rehabilitation and in receiving ongoing talking based mental health treatment including trauma-focused treatment.’ He indicated he would be prepared to monitor the applicant’s rehabilitation if he were granted bail to participate in the Harmony House program.
The applicant has secured a three month treatment program at Harmony House, which provides an inpatient ‘residential rehabilitation and reintegration program’. The applicant has not previously had intensive drug treatment let alone an inpatient treatment program of the type offered by Harmony House. Harmony House is not a secure facility, but there is a degree of monitoring. Mr La Marchesina, the clinical director and general manager of Harmony House, gave evidence. He explained that while not a secure facility, clients of Harmony House were subject to quite rigid rules including urine testing and participation in activities and a treatment schedule that involved several sessions each day that clients had to attend. To the extent that sessions were off-site, clients were taken there and back by persons working for Harmony House. He said, and I accept, that if someone were to abscond during the day, their absence would be noticed by staff within an hour. If someone were to abscond over night, they would likely exit via the front gate, as the walls were hard to climb over, and use of the gate would notify the night staff. Harmony House had beds for six people, and one was available for the applicant if released on bail. The applicant’s parents had agreed to pay, up front, the three-monthly cost. Harmony House has housed approximately sixty persons over the last four years who were on bail. Of that sixty, four were discharged to the Informant for breaching conditions of bail or the rules of Harmony House, two absconded, and the other fifty four completed the program. Mr La Marchesina provided an undertaking to the Court that if the applicant were released on bail on condition that he reside at Harmony House, he would advise the Informant the moment he became aware that the applicant had breached any of his bail conditions.
The prosecution, including the Informant, who had spoken to Mr La Marchesina in preparation for this application, rightly accepted that Harmony House seemed to be an institution that would provide suitable treatment for the applicant’s drug and other mental health issues.
The applicant also adduced oral evidence from Mr Cummins. He emphasised that, surprisingly, the applicant seems has never had ‘talking based’ treatment before for his substance abuse problems, depression or Post Traumatic Stress Disorder or any treatment directed particularly at the risk of violence such as an anger management or men’s behaviour program. He confirmed his view that Harmony House, from all he had heard, was a very appropriate place for the applicant, and that the applicant would likely not receive much in the way of this sort of treatment were he to remain on remand. He expressed the view that the applicant appeared now to be motivated to engage in rehabilitation.
C.4 Strength of prosecution case
The applicant submits that the trafficking case is not strong, because no evidence of trafficking was found or is available (such as, for example, surveillance evidence or evidence from others) and that the amount of drugs found was ‘not inconsistent with the notion of personal use’. It emerged that the applicant’s fingerprints have not been found on some of the packaging, but the fingerprints of others have. There is also an issue as to the effective weight of the drugs found having regard to their purity.
While accepting that there seem to be some properly-contestable issues that will have to be determined, I do not agree that the case against the applicant should be categorised as not strong. I consider that there are at least triable issues that he was involved in trafficking drugs when the amount of drugs found is considered along with the text messages found on the applicant’s phone. The charges relating to the firearms seem also to be at least moderately strong.
For present purposes, I place very little weight on the charges relating to the proceeds of crime, as the amounts said to be the proceeds of crime are relatively inconsequential.
C.5 Delay
Any trial in this matter is unlikely to be held before late 2026 or even early 2027. That represents a substantial delay. This is not, however, a case where the period of time spent on remand would likely exceed any sentence imposed if the charges are found proved.
C.6 Exceptional Circumstances
I am satisfied that the availability of an inpatient treatment program, for the first time, for the applicant, together with his parents’ offer to put the equity in the family home at risk by offering $800,000 as a surety, in circumstances where the applicant has had long-standing and largely-untreated mental health problems including a drug dependency, together with the lengthy delay, constitute exceptional circumstances. Accordingly, the question becomes whether the applicant poses an unacceptable risk.
C.7 Unacceptable risk
I accept the prosecution’s submission that the level of drug trafficking and possession alleged against the applicant is not of the type that may be explained as doing what is needed to feed a habit. It is, instead, on the allegations, at a scale of somebody seeking to make money out of a criminal enterprise. As noted above, the presence of firearms and ammunition, when coupled with the applicant’s past history of violent conduct, is of real concern. Given the nature of that past conduct, the concern remains even though the stabbing took place some ten years ago now. If released on bail other than on stringent conditions, the applicant would, in my assessment on the present material, pose an unacceptable risk.
No doubt recognising the possibility of such a concern, the applicant proposed bail with the following conditions:
(a) A bail guarantee in the amount of $800,000 be provided by his parents, being equity in the property that has been their home for the last 22 years;
(b) He participate in a residential treatment program at Harmony House as directed and follow all lawful instructions and directions of Harmony House staff;
(c) He reside at Harmony House and not leave the premises unless in the company of a staff member;
(d) While at Harmony House, he;
(i) undergo urine drug screens as directed;
(ii) only receive such visitors as are approved by Harmony House;
(iii) comply with any other rule or requirement of Harmony House;
(e) He undergo treatment and supervision with Jeffrey Cummins and follow all lawful directions;
(f) He not have a mobile phone without the permission of Harmony House staff and, if permitted to have a mobile phone have no more than one mobile phone the number of which is to be supplied to the Informant within 24 hours of obtaining the same;
(g) Any mobile telephone service be subscribed in his name and with his current address;
(h) He not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, or consume alcohol, except with the permission or on the advice of a legally qualified medical practitioner;
(i) He surrender his passport and not apply for or possess any passports or other travel documents;
(j) He not attend any point of international departure;
(k) He not leave Victoria; and
(l) He not contact or approach any witness for the prosecution other than the Informant.
The applicant’s parents both gave evidence and said that they understood that they would or may lose their family home if the applicant breached his bail. They both believed that the applicant was now motivated to defeat his drug dependency. They were both impressive persons who obviously cared deeply for their son.
I was, in the end, comfortably satisfied, in the circumstances, that if the applicant were bailed for three months on the suggested conditions, the risk that he would commit further offences, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of bail, was not an unacceptable risk.
D. Disposition
For the above reasons, I granted bail for a three-month period, with the applicant to appear before the Court to surrender himself into custody on 24 June 2025, so that the applicant may attend the inpatient treatment program at Harmony House on the conditions proposed, with the further condition that he appear before the Magistrates’ Court at Melbourne on 5 June 2025 for a committal mention unless excused by the Magistrates’ Court. It should not be assumed that bail will be extended beyond that time; that is a matter for determination, if application is made, at another time.
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