Re Pham
[2023] VSC 585
•2 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0207
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by NGOC QUOC PHAM |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 October 2023 |
DATE OF JUDGMENT: | 2 October 2023 |
DATE OF REASONS: | 5 October 2023 |
CASE MAY BE CITED AS: | Re Pham |
MEDIUM NEUTRAL CITATION: | [2023] VSC 585 |
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CRIMINAL LAW – Bail – Trafficking in a commercial quantity of heroin and other charges – Exceptional circumstances test applicable - Significant criminal history including some bail offences and breaches of court orders – Availability of residential drug rehabilitation – Centrepiece of application – Whether any proven connection between drug addiction of applicant and current offending – Language difficulties may impede proper treatment – Surety, accommodation and employment available – Exceptional circumstances not established – Unacceptable risk – Bail refused - Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K Rolfe | McNally & Gleeson Lawyers |
| For the Respondent | Mr B Nibbs | Abbey Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on charges laid against him by Victoria Police of:
· Trafficking in a commercial quantity of a drug of dependence (heroin);
· Possessing a drug of dependence (two charges) (heroin);
· Possessing explosive substance (two fireworks) (indictable offence);
· Possess explosives (two fireworks) (summary offence);
· Possessing equipment for trafficking in a drug of dependence (a hydraulic press);
· Possessing cartridge ammunition;
· Dealing with property suspected of being proceeds of crime (a watch);
· Trafficking in a drug of dependence (methylamphetamine);
· Possessing a prohibited weapon (sword and spear);
· Possessing a drug of dependence (MDMA) (two charges); and
· Possessing a drug of dependence (methylamphetamine).
Trafficking in a commercial quantity of a drug of dependence is an offence contained within Schedule 1 of the Bail Act 1977 (‘the Act’), meaning that bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify the grant of bail.
Procedural background
The dates of the above alleged offences were 10 and 11 July 2023. The applicant was arrested and remanded in custody on 10 July 2023. He unsuccessfully applied for bail in the Melbourne Magistrates’ Court on 11 July 2023 and 23 August 2023. Bail was refused on both occasions because the learned Magistrates were not satisfied as to the existence of exceptional circumstances.
The next listing date for the charges is 20 November 2023 at Melbourne Magistrates’ Court.
Related accused
Eleven other persons have been charged in connection with the drug syndicate with which the applicant is alleged to be involved. Only three of these other than the applicant are currently in the indictable stream. Six of the 11 are not facing commercial trafficking charges.
The alleged offending
The applicant is alleged to have been part of a syndicate, trafficking heroin and methylamphetamine in Melbourne, led by co-accused Long Phi Dang (‘Dang’). Through an investigation involving CCTV footage and covert surveillance (including physical, telephone intercepts and listening devices), police allege that the applicant was identified as working with Dang in March 2023, and he sourced drugs on a commercial scale and on-trafficked them. In doing so, the applicant used two properties in Albion and Kalkallo and a storage locker in Braybrook, as well as two vehicles, including a Jeep. Police also allege that 229 calls intercepted from Dang’s phone since March were directly linked to the applicant.
On 10 July 2023, police conducted surveillance at the address in Albion, which they allege the applicant referred to as ‘the factory’. Police observed the applicant and Yong Sen Lee move various items between the premises and the Jeep parked outside, and they were subsequently arrested. A search of the property under warrant located:
·A rudimentary lab in the kitchen which police allege was used to turn morphine compounds into forms of heroin;
·Multiple ounce sized bags containing a total of 350.4 grams of heroin (confirmed by drug analysis);
·Emptied bags containing drug residue, zip lock bags, scales and a hydraulic press;
·Two fireworks; and
·Three .32 ammunition cartridges and a bundle of 9mm ammunition.
Police also found books believed to contain calculations for drug sales in the Jeep.
Search warrants were also executed on 11 July 2023 at the property in Kalkallo and the storage locker in Braybrook, where it is alleged that ‘traffickable quantities’ of methylamphetamine and prohibited weapons were found. He is also charged with possession of this drug too at Kalkallo (charge 12). Further, he is charged with possession of heroin at Kalkallo (charge 11), dealing with proceeds of crime in relation to a watch at Albion (charge 7) and possessing MDMA at Braybrook and Kalkallo (charges 10 and 13).
The applicant made no comment in his police interview.
Personal circumstances
The applicant is 36 years old and a permanent resident of Australia, after migrating from Vietnam in 2004. He has two children who live with their mother. The applicant’s broader family reside in Australia and provide him ongoing support. He reports that he did not attend school and has worked in various fields including farming, butchery, rubbish recycling and as a locksmith.[1]
[1]Report of Jim Tatlock, Director of Habitat Therapeutics Public Hospital, Exhibit DM-06 to affidavit in support of bail.
The applicant commenced using illicit substances either in about 2015 after being introduced to methylamphetamine by a friend. His usage increased to daily consumption and after several years, he commenced using heroin. He was using methylamphetamine daily up until his arrest and at times heroin. He reports trying unsuccessfully to stop using drugs on his own before.
Criminal history
In 2015, the applicant was convicted and sentenced to an 18-month community correction order (CCO) for possession of a controlled weapon, contravening a family violence intervention order, unlawful assault, failing to answer bail and contravening a conduct condition of bail.
The applicant was found guilty in 2018, 2019 and 2020 for contravention of CCOs, along with drug possession in 2018 and 2019.
After being convicted in 2020 of wilfully damaging property, the applicant was sentenced to 35 days’ imprisonment.
In 2022, the applicant was convicted and fined for affray.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA(1) provides that the exceptional circumstances test applies to a decision whether to grant bail to a person accused of a Schedule 1 offence. As indicated earlier, trafficking a commercial quantity of a drug of dependence is such an offence. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[2] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[3] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]Section 4A(2).
[3]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[4] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[5]
[4][2004] VSC 17.
[5]Ibid [13]. See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[6]
[6]See, for example, Re Brown [2019] VSC 751 (Lasry J).
The evidence
Jim Tatlock, the author of the report from Habitat Therapeutics Private Hospital (‘Habitat’), gave evidence before me elaborating on the contents of the report and the services which would be available to the applicant should he be bailed to reside at Habitat. As described by Mr Tatlock, Habitat is a facility staffed by people of a high level of expertise and training in the field of drug rehabilitation. Surprisingly, that is not always the case with residential drug treatment facilities. The program described, which in the case of the applicant would extend to 90 days, is a rigorous and challenging one. Habitat have routinely had persons residing at the facility on bail orders. Not surprisingly, some of these have absconded despite the high level of supervision and incentive to remain. The evidence of Mr Tatlock indicated that much thought has been given to the difficulties presented by the language limitations of the applicant which were clearly spelt out in the report. Steps would be taken to have Vietnamese-speaking people involved in the treatment of the applicant at various levels, but it would be correct to say, in my view, that the lack of command of English would undoubtedly pose substantial challenges to the applicant and Habitat in the treatment of his drug addiction.
In his evidence, Mr Tatlock conceded that like all such programs, the program at Habitat is a voluntary one. The facility is not a locked-down one. There are lockable doors, CCTV cameras and regular roll calls to ensure attendance, and accounting for the presence of residence morning and night, but the reality is that anyone who wants to can leave the facility at will.
Mr Tatlock undertook to the Court that any breaches of bail by the applicant would be reported to Victoria Police.
The brother of the applicant, Tien Pham, gave evidence of his willingness to provide a surety of $50,000 should the applicant be bailed. He also indicated that he would be paying the substantial sum, of the order of $30,000, payable for the services of Habitat. He attested to the improved behaviour of the applicant when on CISP-monitored bail in 2022. He said that the applicant would be able to live with him and his family in Tarneit upon his release from residential rehabilitation, and would have employment available at his wife’s noodle shop in Geelong. He said that he would report any bail breaches of the applicant to the informant.
Applicant’s submissions
Ms Rolfe for the applicant, in her written and oral submissions, relied on a combination of matters in proof of the existence of exceptional circumstances, and in resisting the prosecution contention as to unacceptable risk. They were as follows:
(a) Delay. It is unlikely that a contested committal would proceed until the latter half of 2024, meaning that a trial would not proceed until at least late-2025. This would mean that a delay of the order of 2½ years would be likely, itself a significant matter as revealed by the cases.
(b) The availability of residential rehabilitation in the context of the applicant’s drug addiction. It was submitted that especially in light of the positive conduct of the applicant in a recent CISP-monitored period on bail, during which he attended eight drug treatment sessions, there are reasonable prospects that he would respond well to residential treatment. Ms Rolfe noted the significance attached to the availability of residential treatment in the authorities, including notably the case of Re Prider.[7] She submitted that the fact of an apparent relapse into drug use after the period on bail last year is reflective of the fact that recovery from drug addiction cannot be expected to be a linear process.
[7][2023] VSC 294 (Champion J).
(c) Family support and the availability of accommodation and employment. Ms Rolfe relied on the evidence of the applicant’s brother as set out above.
(d) The availability of a surety of $50,000 from his brother.
(e) The two-pronged effect of the period of time the applicant has already spent on remand. Ms Rolfe submitted that the period would have a substantial deterrent effect, bearing in mind that the applicant has only been imprisoned once in the past for a short period. In addition, it has enabled a sustained period of abstinence, advancing his prospects of successful engagement with residential rehabilitation.
Ms Rolfe relied on the above matters in the context of the other surrounding circumstances, including the applicant’s strong ties to the jurisdiction and the fact that he has a reasonably confined criminal history with few matters concerning breaches of bail.
As to the matter of risk, Ms Rolfe relied on the above matters, and in particular on the applicant’s good compliance with CISP.
Respondent’s submissions
Mr Nibbs relied on the contents of the affidavit in opposition to bail and his oral submissions. He submitted that the matters relied upon are insufficient to establish exceptional circumstances. The charges are serious, and even those flowing from the Albion address at which the applicant was arrested are such that, on conviction, a significant period of imprisonment would be inevitable. He submitted that the nature of the offending would entitle the Court to draw the inference that the applicant was motivated by a desire for enrichment rather than any other motive.
On the question of delay, Mr Nibbs submitted that any period spent on remand would not approach the magnitude of the sentence required to be served by the applicant should he be found guilty of the main charge.
Mr Nibbs acknowledged that the availability of residential rehabilitation can be an important matter where bail is concerned. In this case, however, whilst the aims of Habitat are admirable, at this stage, the resources available for the treatment of the applicant in light of the language barrier, are somewhat under-prepared.
Were the Court to come to consider risk, Mr Nibbs pointed to the numerous breaches by the applicant of CCOs and the many occasions on which courts have issued warrants for the arrest of the applicant as being indicators that he has not shown the necessary respect for court-ordered dispositions. The risks of his endangering the public, committing further offences on bail, and failing to appear in answer to bail, are realistic ones.
Analysis
I turn first to the question whether the applicant has satisfied me of the existence of exceptional circumstances in this case justifying a grant of bail. A sensible starting point in my task, albeit that there is no required order for the consideration of the various circumstances in any case under s 3AAA(1), is the seriousness of the offending. In this case, the applicant is charged with trafficking in a commercial quantity of heroin. The seriousness of that charge is reflected by the maximum penalty applicable of imprisonment for 25 years. In this case, just having regard to the amount of heroin located in the search of the Albion property, an amount well in excess of the commercial quantity was located, secreted behind a drawer in the kitchen. It was contained in 13 small bags. A rudimentary drug laboratory was apparently set up in the kitchen, and other accoutrements of drug trafficking were located at the house. It is clear that the offending is very serious.
As for the strength of the prosecution case, whilst Ms Rolfe submitted that there are triable issues, she did not submit that the prosecution case against the applicant is weak. That is not surprising in the circumstances. Indeed, for what it is worth at this early stage, it seems to me that the case on that central charge is likely to be strong, in view of the apparent clear connection between the applicant and the house in which the commercial quantity of heroin was found.
The applicant has a reasonably significant criminal history containing convictions for many offences, including drug offences, weapons offence, some bail offences, and affray. He has two convictions for failing to answer bail, two for contravening conduct conditions of bail, and five for contravening family violence intervention orders. In addition, he has repeatedly breached CCOs given to him over the years. The overall appearance of the criminal history would raise real concerns about the level of respect the applicant has shown for the authority of court-imposed orders.
I now turn to the centrepiece of the application which is the availability of a place for the applicant in a residential drug treatment facility. I accept that it would be in the community interest, as well as in the interests of the applicant’s future, for him to be able to rid himself of the drug habit which has apparently blighted his life in recent years. That acceptance, however, does not mean that the availability of a place in a residential drug treatment program at this time would be sufficient, alone or in combination with the other matters relied upon, to enable the applicant to overcome the high hurdle represented by the exceptional circumstances test.
Notwithstanding the fact that in some cases, participation by an applicant in residential drug treatment may be a very desirable prospect and an important matter bearing on the issues required to be determined by a judge contemplating a grant of bail,[8] there are two matters of some note in this case.
[8]See Robinson v The Queen (2015) 47 VR 226 [49]-[51].
First, unlike the position in many other cases, this is not a case where there is any proven link between the offending alleged against the accused and his drug addiction. The applicant is alleged to be a member of a syndicate involved in the trafficking of a number of drugs, including centrally, heroin. Even limiting my consideration to the events surrounding his arrest at the Albion property, and the things revealed by a search of that property, and of course bearing in mind that at this stage, I am dealing only with allegations, the appearance of this enterprise is not of one entered into by the applicant as a result of his drug addiction. Rather, this has the appearance of a money-making venture. Those involved in any enterprise trafficking in a commercial quantity of heroin do so in the knowledge of how much there is to gain, and how much to lose, by such involvement.
In this respect, the present case can be readily distinguished from one of the cases relied upon by Ms Rolfe, namely, Re Prider. In that case, the charges upon which the applicant sought bail were largely matters of dishonesty. Champion J accepted in that case that the evidence indicated that the applicant’s previous offending, and his then-current offending, appeared to be driven by the methamphetamine use disorder with which he had been diagnosed. There is no such proven link in this case.
In the case of Re Villani,[9] a case cited by Champion J in Re Prider, there was again a strong proven connection between the ongoing drug addiction of the applicant and his offending that has not been demonstrated in the present case. That is not to say that such a connection will always be required in order for the availability of residential drug treatment to assume significant weight, but it will often be a factor.
[9][2021] VSC 638.
The second matter about which I see the need to comment is that the language difficulties which would undoubtedly be experienced by the applicant at Habitat would be an important stumbling block in the way of his successful participation in the program. I say this notwithstanding the efforts that Habitat have made to accommodate the applicant’s needs. Participation in in-house residential drug treatment would be challenging at the best of times. In the current circumstances, that would be all the more so for the applicant.
Bearing in mind the criminal history of the applicant and his history of spurning opportunities given to him, I am not confident as to his rehabilitative prospects at this juncture. There is a real risk that he would be unable to see the program through at Habitat.
Insofar as Ms Rolfe relied strongly on the compliance by the applicant with CISP in 2022, telephone or Zoom attendance at counselling or other sessions cannot be likened to the challenging and stringent requirements of residential drug rehabilitation, and there is no evidence which would suggest that the applicant was actually drug-free during that period.
On the question of delay, that is always a significant matter. The delay in this case would be substantial should these matters go for trial. The impact of this delay on the question of exceptional circumstances, however, must be assessed in light of the seriousness of the offending, the inevitability of a term of imprisonment being imposed upon the applicant should he be found guilty, and the fact that it cannot be supposed that the period on remand would go anywhere near exceeding the likely sentence.
Having carefully considered all of the matters relied upon in support of proof of exceptional circumstances in this case, I think they fall short of proving that exceptional circumstances exist in this case that justify the grant of bail. For that reason, it would be necessary for bail to be refused.
For completeness, I can indicate that even had I been of a different view, I would have concluded that there was an unacceptable risk of the applicant endangering the community, reoffending, or failing to answer bail, which would have required a refusal of bail in any event.
Conclusion
For the reasons I have stated, this application for bail must be refused.
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