Re Pham
[2023] VSC 440
•27 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0150
| IN THE MATTER of an application for bail | |
| Between: | |
| QUYEN XUAN PHAM | Applicant |
| -and- | |
| DETECTIVE SENIOR CONSTABLE JOEL HEHIR | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2023 |
DATE OF ORDERS & REASONS: | 27 July 2023 |
CASE MAY BE CITED AS: | Re Pham |
MEDIUM NEUTRAL CITATION: | [2023] VSC 440 |
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CRIMINAL LAW — Application for bail — Applicant charged with cannabis cultivation, trafficking and possession (simpliciter), and theft of electricity — Applicant arrested at residential premises in which 57 immature cannabis plants growing hydroponically in bedroom with electrical bypass — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of failing to answer bail — Applicant, Vietnamese national, recently arrived in Australia on visitor visa — Stable address — Employment — Daughter studying in Melbourne — No prior convictions — Surety of $7,000 — Delay — Period to be spent in custody before hearing likely to exceed any custodial sentence imposed, if convicted — Weaknesses in prosecution case — Triable issue that search unlawful and resulting evidence should be excluded — Compelling reasons established — Unacceptable risk not established — Bail granted with surety and other conditions — Bail Act 1977 (Vic), ss 4, 4AA, 4C, 4D & 4E; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 81; Evidence Act 2008 (Vic), s 138.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Sturges | JLe Lawyers |
| For the Respondent | Mr P McKimmie | Victoria Police, Legal Practice Group |
HIS HONOUR:
Overview
Quyen Xuan Pham applies for bail. He is charged with cultivating, trafficking and possessing cannabis, and theft of electricity. Mr Pham was arrested at a residential premises in St Albans in which 57 cannabis plants were found growing hydroponically in a bedroom, with an unauthorised electrical bypass.
The principal issues on this application are: first, whether Mr Pham has established a compelling reason justifying bail; and, second, whether the prosecution has shown an unacceptable risk that, if granted bail, he would fail to appear.
For reasons that follow, I am satisfied that Mr Pham has established a compelling reason justifying bail, and I am not satisfied that there is an unacceptable risk that he would fail to answer bail. Accordingly, I shall grant the application and release him with a surety of $7,000, and with other conditions.
Summary of alleged offending and arrest
The evidence supporting the charges is set out in a police summary, a precis of which follows.
At about 9:15 a.m. on 12 June 2023, police attended residential premises at 43 Denton Avenue in St Albans to make inquiries about a male in relation to unrelated alleged offending.
Cuong Van Nguyen, aged 32, answered the door. It is alleged that he gave consent to police to enter the premises to search for the male. (There is a dispute about whether that consent could have been given, and the potential consequences of that fact, as it is accepted that Mr Nguyen does not speak English. More on that later.)
During their search, police found Mr Pham, aged 46, in the front bedroom. Also in that room were his personal effects and his Vietnamese passport.
In a rear bedroom, the door to which was closed, police found 57 relatively immature cannabis plants growing in a hydroponic setup.
Mr Nguyen and Mr Pham were arrested for cultivation of cannabis.
Police then applied for and obtained a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). They executed the warrant and seized the cannabis plants, which weighed about six kilograms, an electronic bypass, Mr Pham’s passport, an Apple iPhone and charger, and an Oppo mobile phone and charger.
Mr Nguyen, it seems, made a “no comment” interview with police.
In his police interview, Mr Pham made no admissions and denied knowledge of cultivation.
Each accused was charged with the offences mentioned earlier, and then held in custody.
Previous bail applications
On 16 June 2023, Mr Nguyen was refused bail at Sunshine Magistrates’ Court. His matter returns to that court for a contest mention on 23 August.
On 29 June, Mr Pham was refused bail at the same court. His matter returns to that court for a mention on 3 August.
Applicable tests for bail
On this application, because Mr Pham is charged with Schedule 2 offences (of cultivation and trafficking), bail must be refused unless he satisfies the Court that a compelling reason exists that justifies the grant of bail.[1]
[1]See ss 4AA(3) and 4C of the Bail Act 1977 (Vic).
Further, if that test is met, bail still must be refused if the prosecution satisfies the Court that there is an unacceptable risk that, if released on bail, Mr Pham would fail to surrender into custody in accordance with conditions of bail.[2] If the Court is not so satisfied, bail must be granted.[3]
[2]See ss 4D and 4E(1) of the Bail Act 1977 (Vic). There is no assertion that any other of the specified risks in s 4E(1)(a) are present.
[3]See s 4 of the Bail Act 1977 (Vic).
In considering each of these statutory tests, the Court must take into account the so‑called “surrounding circumstances” listed in s 3AAA of the Bail Act 1977 (Vic), which in this case include at least the following matters:[4]
a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
b)the strength of the prosecution case;
c)the accused’s personal circumstances and background;
d)the length of time the accused is likely to spend in custody if bail is refused; and
e)the likely sentence to be imposed should the accused be found guilty of the offences with which the accused is charged.
[4]See ss 3AAA, 4C(3) and 4E(3)(a) of the Bail Act 1977 (Vic).
In considering whether a risk of the kind alleged is an unacceptable risk, the Court must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[5]
[5]See s 4E(3)(b) of the Bail Act 1977 (Vic).
Other evidence
In addition to the summary set out earlier, I heard the following evidence or was told of other considerations.
First, Mr Pham has no prior convictions or other outstanding charges.
Secondly, Mr Pham is a Vietnamese national who is in this country on a tourist visa. On 29 November 2022, he applied for a “visitor short stay visa”. His daughter Thi Ngoc Anh Pham, now 18 and of Brunswick West, was named in that application as a contact in Australia. Mr Pham’s visa was granted on 15 December 2022, and it expires on 1 August 2023.
Thirdly, his daughter, who was present in Court to support her father, still resides in Melbourne. She is here as a student at a tertiary institution. Mr Pham’s partner and his son live in Vietnam.
Fourthly, Mr Pham has a driving business in Vietnam. He drives the cars himself, but also has other employees driving his cars while he is away.
Fifthly, also found in the front bedroom during the search on 12 June was a suitcase containing an airline schedule in Mr Pham’s name for flights from Hanoi to Melbourne on 30 April to 1 May 2023 and from Melbourne to Hanoi on 24 July 2023. Consistent with this, Mr Pham arrived in Australia on his visa on 1 May 2023. Thus, he was in the country 42 days prior to his arrest.
Sixthly, Mr Pham’s friend Thi Thu Vuong Nguyen gave sworn evidence before me. She met Mr Pham in Vietnam in 2019 and has seen him at dinners on about four occasions since he has been in Australia. Ms Nguyen lives with her aunt and uncle and their daughter (her cousin) in a five‑bedroom house in Lalor. She works in food and beverages at Crown Casino. Ms Nguyen has offered that Mr Pham could live with her and her family in one of the rooms of their home in Lalor. Her family are happy for this to occur.
Seventhly, Ms Nguyen is prepared to offer a cash surety of $7,000. She has about $11,000 in savings. She is confident that Mr Pham would answer his bail, and that he understands the risk of forfeiture should he fail to appear. She swore that, if she became aware that Mr Pham had breached his bail conditions, she would report this to the police. Mr McKimmie, who appears for the informant, did not cross‑examine Ms Nguyen. I accept her evidence.
Eighthly, Dat Thanh Nguyen has offered Mr Pham employment three days a week as a kitchen hand at his restaurant in Maribyrnong, should he be granted bail. It is said by the informant, however, that Mr Pham’s visa status would not allow him lawfully to undertake paid employment. Mr Sturges, who appears for Mr Pham, accepted that that was so, although he added that his client may wish to occupy his time by assisting without pay.
Ninthly, upon interrogation of Mr Pham’s phone, police discovered that details of the St Albans address were sent to that phone on 4 June 2023. Further, two photographs were sent to the same phone on 20 March and 5 June 2023. These photographs appear to be taken in a shipping container and, it is alleged, show equipment like that used in the cultivation with which Mr Pham has been charged.
Finally, Mr Pham intends to contest the charges.
Whether compelling reason
Mr Sturges submits that there are compelling reasons justifying bail. Mr McKimmie takes issue with that submission, although not strongly so.
For the following reasons, I am satisfied that there is a compelling reason justifying a grant of bail, or that there are such matters that in combination satisfy that test.
First, putting aside, for the moment, arguments about the strength or otherwise of the prosecution case, I am satisfied that, if Mr Pham were found guilty of the charges, the length of time he is likely to spend in custody if bail is refused will exceed the likely sentence to be imposed. There are several reasons for that conclusion.
a) First, I am told, and accept, that, in addition to the one‑and‑a‑half months he has spent on remand to date, there is likely to be a delay of at least another six to eight months before a contested hearing in the Magistrates’ Court. Thus, it is likely that he would spend in the order of at least nine months in prison before the matter were finally determined in that court. If Mr Pham elected to go to trial in the County Court, it is reasonable to expect that the total delay would blow out to well over two years before being finalised in that court.
b) Secondly, while I accept that there was some degree of sophistication in the setup at the premises in St Albans, given the modest amounts of cannabis involved and the electricity said to have been stolen, these could not be said to be serious examples of these alleged offences. Importantly, the cultivation and trafficking alleged are simpliciter offences, not commercial quantity or large commercial quantity offences.
c) Thirdly, nothing is known about Mr Pham’s role in the alleged offending. On the evidence as it is, it is difficult to see how he could be found to be any more than a crop sitter or the like for a brief period.
d) Fourthly, and significantly, at the age of 46, he has no prior convictions.
e) Fifthly, sentencing statistics for the period from July 2018 to June 2021 show that over 65 percent of offences of trafficking in cannabis, and over 82 percent of offences of cultivation of cannabis, dealt with in the Magistrates’ Court resulted in non‑custodial sentences.[6] Mr McKimmie also conceded that non‑custodial sentences are sometimes imposed in the County Court for this type of alleged offending.
f) Thus, sixthly, I am persuaded that there is a likelihood that, if convicted on all charges, Mr Pham would be sentenced by way of a non‑custodial order or, at worst, a short prison sentence (around no more than the time he has served thus far), perhaps combined with a non‑custodial order.
[6]See Sentencing Advisory Council, SACStat, Sentencing outcomes in the Magistrates’ Court, 1 July 2018 to 30 June 2021, for trafficking in cannabis and cultivation of cannabis.
In my view, if the delays in the court system are such as to produce the likelihood of his spending more time in custody than any prison sentence he is likely to receive, if convicted, then this alone is a compelling reason justifying bail. But there is more.
Thus, secondly, notwithstanding the photos on Mr Pham’s phone (which I shall say more about shortly), I am persuaded that there are weaknesses in the prosecution case. While it is sometimes fraught on a bail application to attempt to assess the strength of a prosecution case, enough is known about this relatively simple matter to make a fair assessment as things stand. In particular, in view of the following, I consider there to be some prospect that a tribunal of fact would have a reasonable doubt about the principal allegations.
a) First, the hydroponic setup was in the rear bedroom, the door to which was closed. There is no evidence (such as fingerprints or DNA) linking Mr Pham to that room or to what was in it, and no evidence that he had ever been in the room or was aware of what it contained.
b) Secondly, while there is evidence that Mr Pham was in the country from 1 May, there is no evidence supporting the proposition that he was at the premises for any substantial period before the police attended on 12 June.
c) Thirdly, while, in context, the photos on Mr Pham’s phone naturally give rise to suspicion, there is no proof of any identity or link between the equipment depicted in those photos and the equipment found at the St Albans premises.
d) Finally, given the way the case is put, even if his awareness of and involvement in the cultivation could be proved, in order to be guilty of trafficking, Mr Pham must be proved, beyond reasonable doubt, to have been in possession of the cannabis for the purpose of sale. There appears to be no evidence supporting that proposition. In Mr Pham’s circumstances, including his lack of prior convictions, I cannot see that a conviction for, say, merely cultivation and theft could reasonably result in anything but a non‑custodial sentence.
A third point that goes to the strength of the prosecution case, and to compelling circumstances, is this. Mr Sturges submitted that, given Mr Nguyen does not speak English (and indeed required an interpreter when interviewed later), it is unlikely that he understood the police when they came to the front door, or, at the very least, he would have been unable to give informed consent to the police to enter the premises. In those circumstances, Mr Sturges submits that there may well be a respectable argument that the search that discovered the cannabis and other things in the back room was unlawful and that that difficulty was not overcome by the warrant obtained subsequently, such that the evidence of the search and seizure must be excluded. Whether such an argument could succeed necessarily would depend upon the evidence and findings made upon a voir dire, and the balancing act required by s 138 of the Evidence Act 2008 (Vic). This, of course, is well beyond the scope of an application like this. Nevertheless, even at this early stage, it seems to me that there may well be a respectable argument favouring exclusion of the key evidence and therefore dismissal of all charges.[7] Quite fairly, Mr McKimmie conceded that this is at least a triable issue.
[7]For a recent case that might be thought to raise similar issues where the point was determined in the accused’s favour, see Johnston (a pseudonym) v The King [2023] VSCA 49 (per Beach and T Forrest JJA and J Forrest AJA).
For these reasons, either alone or in combination, I am satisfied that Mr Pham has met the compelling reason test.
Whether unacceptable risk
Notwithstanding any finding about compelling reasons, Mr McKimmie submits that bail still should be refused because there is an unacceptable risk that Mr Pham would fail to answer bail. This is because he is a foreign national who has no ties to the jurisdiction and is in this country only on a tourist visa. Mr McKimmie submits that, given the possibility of a prison sentence, and the fact that he has family and business in Vietnam, there is a strong prospect that Mr Pham would flee the jurisdiction. He further submits that conditions of bail could not ameliorate that risk to the point of being acceptable.
Mr Sturges submits that any perceived risk of failing to appear can be rendered acceptable by, among other things, the provision of a static address and a surety, and the fixing of strict conditions of bail. He submits that Mr Pham does have ties to the jurisdiction, through his daughter, who is living and studying here.
For the following reasons, which are essentially those urged by Mr Sturges, I am not satisfied that there is an unacceptable risk that, if bailed, Mr Pham would fail to answer his bail.
First, Mr Pham has no prior convictions or other outstanding charges.
Secondly, there is no evidence that he has ever been charged with an offence, let alone failed to appear on bail previously.
Thirdly, he has a stable address to go to with Ms Nguyen and her family, if granted bail.
Fourthly, as I indicated earlier, I accept the evidence of Ms Nguyen to the effect that she would report any failure to comply with bail conditions.
Fifthly, the provision by her of a surety, which represents a large portion of Ms Nguyen’s savings, and her confidence in Mr Pham, only adds to my confidence that he will not flee.
Sixthly, I am persuaded that the bail conditions proposed by Mr Sturges, which include daily reporting to police, will also go towards ameliorating the risk of flight to an acceptable level.
Seventhly, while Mr Pham’s current visa is due to expire on 1 August, Mr Sturges explained, and I accept, that he has immigration solicitors who are attending to an extension of his visa. Mr McKimmie advised that the immigration authorities have no current intention to remove Mr Pham from the country but will await the outcome of the criminal proceedings against him to determine their position.
Finally, whether the asserted risk is unacceptable must be considered against the reality that, even if Mr Pham were found guilty of the offences charged, it is likely that the period spent in custody would exceed any prison sentence imposed upon him.[8] In my view, despite the risk that exists, it would be unacceptable, at least in a case like the present, to keep an accused in custody beyond the period that the law would be likely to require by way of a prison sentence upon conviction of the charged offences. In cases like the present, if the criminal justice system cannot deal with a case speedily enough to avoid an unsatisfactory outcome of that kind, bail must be granted.
[8]See, e.g., Mokbel v DPP (No 3) (2002) 133 A Crim R 141 at 143[10] (per Kellam J).
Conclusion and order
In those circumstances, I am satisfied that the application should be granted.
Accordingly, I order that Mr Pham be admitted to bail with a surety of $7,000 and with the following conditions:
a)Mr Pham is to reside at 56 Cambala Avenue, Lalor, Victoria, 3075 (“the residence”);
b)Mr Pham is not to contact witnesses for the prosecution except the informant or his nominee;
c)Mr Pham is to surrender to the informant or his nominee any further passport or other travel document held by him within 24 hours of his release from custody, and he is not to apply for any further passport or other travel document;
d)Mr Pham is not to attend any points of international departure;
e)Mr Pham is not to leave Victoria or Australia;
f)Mr Pham is not to contact, directly or indirectly, or associate with, the co‑accused Cuong Nguyen;
g)Mr Pham is to report to the Epping Police Station between the hours of 6:00 a.m. and 9:00 p.m. each day; and
h)Mr Pham is to appear at the Sunshine Magistrates’ Court for a mention hearing at 9:30 a.m. on 3 August 2023, and thereafter as directed by that court.
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