Re Pham - [2023] VSC 585

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Pham

Details

AGLC: Re Pham [2023] VSC 585
Case: [2023] VSC 585
Decision Date: 2 October 2023

CaseChat Overview and Summary

In the case of Re Pham, the applicant was before the Court seeking bail on charges of trafficking in a commercial quantity of heroin and other related offences. The matter was heard in the Magistrates' Court of Victoria. The applicant, who had a significant criminal history, argued that exceptional circumstances warranted his release on bail. This history included previous breaches of bail conditions and court orders.

The primary legal issues for the court to determine were whether the exceptional circumstances test had been satisfied and whether the risk to the community was unacceptable. The applicant's criminal history and the nature of the current charges were central to the court's deliberations. The court considered the availability of residential drug rehabilitation as a key factor in the application, given the applicant's drug addiction issues. However, the court found that there was no proven connection between the applicant's drug addiction and his current offending behaviour. Additionally, language difficulties were identified as a potential impediment to effective treatment. Despite the availability of surety, accommodation, and employment, the court concluded that the exceptional circumstances test was not met and that the risk to the community was unacceptable.

Consequently, the court refused bail. The court's decision was based on the significant criminal history of the applicant, the nature of the current charges, and the risk factors associated with his potential release. The court emphasised that the exceptional circumstances test was not satisfied, and the risk to the community was too high to warrant bail. The orders made by the court were that the applicant remain in custody pending the outcome of his trial.

Orders