IN THE MATTER of an application for Bail by THI HONG THAM TONG
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JUDGE:
TINNEY J
WHERE HELD:
Melbourne
DATE OF HEARING:
26 March 2020
DATE OF JUDGMENT:
26 March 2020
CASE MAY BE CITED AS:
Re Tong
MEDIUM NEUTRAL CITATION:
[2020] VSC 141
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CRIMINAL LAW - Bail – Trafficking in cannabis – Committing an indictable offence whilst on bail – Further alleged offending in breach of earlier grant of bail for serious drug offending – Breach of conduct condition of bail – Whether exceptional circumstances established – Implications of COVID-19 pandemic to be taken into account as part of surrounding circumstances – Delay - Exceptional circumstances established – Unacceptable risk of reoffending not established – Bail granted with stringent conditions – Bail Act 1977, ss1A, 3AAA, 4, 4AA, 4A, 4D, and 4E.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr R Melasecca
Melasecca, Kelly & Zayler
For the Respondent
Mr J Lewis
Ms A Hogan, Solicitor for Public Prosecutions
HIS HONOUR:
Introduction
Thi Hong Tham Tong, the applicant, applies for bail in respect of charges she faces of trafficking in a drug of dependence (cannabis), possessing a drug of dependence (cannabis), dealing with proceeds of crime, committing an indictable offence while on bail and contravening a conduct condition of bail.
The parties agree that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of a Schedule 2 offence (trafficking in a drug of dependence while on bail for a Schedule 1 offence (cultivating a narcotic plant in not less than a commercial quantity). In addition, it is noted that committing an indictable offence while on bail and contravening a conduct condition of bail are also themselves Schedule 2 offences.
Procedural history
The applicant has been in custody since the day of her arrest on these matters on 14 August 2019. She was refused bail in the Horsham Magistrates’ Court on 10 December 2019, on the basis that she had failed to demonstrate the existence of exceptional circumstances. In addition, she was found to be an unacceptable risk of committing an offence while on bail. The matter is next listed for a further committal mention in the Melbourne Magistrates’ Court on 14 April 2020.
At the time of the alleged offending, the applicant was on bail for charges of cultivating a commercial quantity of cannabis, possessing a drug of dependence (cannabis), and theft. These charges relate to events alleged to have occurred between 30 August 2017 and 22 February 2018.
The applicant was originally charged on summons in the earlier matter on 22 March 2019. On 18 April 2019, she entered into bail following a filing hearing in the Melbourne Magistrates’ Court. Her bail was subject to various conditions, including that she not…
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.
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Details
AGLC
Re Tong [2020] VSC 141
Case
[2020] VSC 141
Decision Date
CaseChat Overview and Summary
The case of Re Tong involved an application for bail made by the defendant, who was facing charges related to trafficking in cannabis and committing an indictable offence while on bail for a serious drug offence. The matter was heard in the Magistrates' Court of Victoria. The defendant's application for bail was complicated by further alleged offending while on bail and a breach of a conduct condition of the bail granted for the earlier charges.
The legal issues before the court included whether exceptional circumstances existed to warrant bail, despite the defendant's breach of bail conditions and further alleged offending. The court was required to consider the implications of the COVID-19 pandemic as part of the surrounding circumstances. Additionally, the court needed to assess whether the risk of reoffending was unacceptable and whether stringent conditions could sufficiently mitigate that risk. The court examined the principles set out in the Bail Act 1977, particularly sections 1A, 3AAA, 4, 4AA, 4A, 4D, and 4E, to determine the appropriate conditions for bail.
The court found that exceptional circumstances were indeed established, primarily due to the impact of the COVID-19 pandemic on the defendant's ability to comply with bail conditions. However, the court determined that the unacceptable risk of reoffending was not established, as the stringent conditions proposed could sufficiently manage that risk. The court granted bail to the defendant with strict conditions, including electronic monitoring and strict curfews, to ensure compliance and reduce the risk of further offending. The court's decision highlighted the importance of balancing the defendant's right to liberty with the need to protect the community from potential harm.
The final orders included the defendant's release on bail with the specified stringent conditions, pending the resolution of the charges against them. The court emphasised that any breach of these conditions would result in immediate revocation of bail and the defendant's return to custody.