Tran v The State of Western Australia
[2012] WASC 480
•6 DECEMBER 2012
TRAN -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 480
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 480 | |
| 06/12/2012 | |||
| Case No: | MBA:20/2012 | 17 OCTOBER, 2 NOVEMBER 2012 | |
| Coram: | EM HEENAN J | 2/11/12 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| C | |||
| PDF Version |
| Parties: | PHI VAN TRAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail Serious offences Flight risk Significant delay before being brought to court Application of Pt C of sch 1 to the Bail Act 1982 (WA) |
Legislation: | Bail Act 1982 (WA) Criminal Code (WA) Misuse of Drugs Act 1981 (WA) |
Case References: | Milenkovski v State of Western Australia [2011] WASCA 99 Pham v State of Western Australia [2011] WASCA 244 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Serious offences - Flight risk - Significant delay before being brought to court - Application of Pt C of sch 1 to the Bail Act 1982 (WA)
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Bail refused
(Page 2)
Category: C
Representation:
Counsel:
Applicant : Ms P Chong
Respondent : Mr C Astill & Mr R Wilson
Solicitors:
Applicant : Patti Chong Lawyer
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v State of Western Australia [2011] WASCA 99
Pham v State of Western Australia [2011] WASCA 244
(Page 3)
1 EM HEENAN J: This is the adjourned hearing of an application by Mr Phi Van Tran for bail pursuant to s 14 of the Bail Act 1982 (WA). A hearing commenced before me in this court on 17 October 2012 and was part-heard when it became apparent that further evidence in opposition to the application was to be put forward on behalf of the respondent and objection was taken to inadequacy of notice. I therefore directed that the application should be adjourned part-heard, and gave directions that affidavits containing the additional evidence be filed and served and gave leave for the applicant to file answering affidavits. That has since been done and the matter has come on for hearing today.
2 The materials before the court comprise the application by Mr Tran for bail which was filed on 12 October 2012. There is an affidavit in support of the application by Mr Tran which has been read and relied upon by him in support of the application. That is dated 12 October 2012 and it has a number of corrections which have been made by consent to deal with problems in translation.
3 There is an affidavit of the translator Mr Din Thac Pham sworn 16 October 2012 which has been filed and read, an affidavit of the investigating police officer, a Detective Stephen Andrew David Britten, sworn 25 October 2012 which has been filed and read, and an affidavit in answer by Mr Phi Van Tran sworn 30 October 2012. I have received written submissions from the respondent, and there have also been oral submissions by counsel for the applicant and by the respondent, all of which I have considered.
4 It is necessary to say something about the history of these charges. Mr Phi Van Tran was arrested at Alexander Heights in the early hours of the morning of 12 September 2012. He was charged with four separate offences; two charges under the Criminal Code, s 428(1) of being in possession of property unlawfully obtained, amounts of cash found at the property at Alexander Heights to an aggregate sum of $115,600.
5 He was also charged with two counts of being in possession of an illicit drug, methylamphetamine, with intent to sell or supply that drug concerning a total quantity of approximately 615 grams. Those two charges are charges for serious offences within the meaning of sch 2 of the Bail Act 1982 (WA) they having been laid under s 5(1)(a) of the Misuse of Drugs Act 1981 (WA).
6 He was a charged with a fifth offence of being in possession of an illicit drug, heroin, with intent to sell or supply, the total alleged quantity
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- being 585 grams. That was an offence charged also under s 6(1)(a) of the Misuse of Drugs Act and it also is a serious offence under sch 2 of the Bail Act.
7 He was kept in custody on those charges but he came before the Magistrates Court in Perth before his Honour Magistrate Cicchini on Friday, 14 September 2012 and applied for bail. His Honour heard that application but refused bail and remanded him in custody. In doing so, his Honour observed - and I read from page 8 of the transcript of 14 September:
In determining this matter the court needs to consider the factors set out in Part C of the Bail Act, in particular clause 1. The court needs to consider whether it's appropriate, having regard to those factors, as to whether the accused should be released to bail. The accused in this matter is charged with what are very serious offences relating to drugs and the alleged wrongdoing of the accused is of a serious nature given the allegation that he is said to be the leader of the organisation involved in such an alleged serious wrongdoing that it would be appropriate to grant him bail, inappropriate having regard to the nature of the offences alleged and given that if convicted of those offences clearly the accused would suffer a very, very significant period of incarceration.
8 The learned magistrate went on and said:
Given that that is the case, there is a real risk arising that the accused will abscond and there are no conditions that I can think of which will prevent that occurring. In those circumstances, in particular given the alleged wrongdoing and the very serious nature of that, it would be inappropriate to grant bail and I rely upon subclause (g) of clause 1 of Part C of the Bail Act in refusing bail. Bail is refused.
9 His Honour remanded the applicant to appear before the Magistrates Court on a later date. In those circumstances Mr Tran has, as I have already said, applied to this court for bail under s 14 of the Bail Act, as he is entitled to do. The affidavit material which I have already identified sets out the basis upon which the application for bail is advanced.
10 The essential points raised by Mr Tran in support of his application for bail are, first of all, he denies that he is guilty of any of the charges. He contends that he moved into the premises at Alexander Heights a relatively short time, some three weeks or so, before his arrest and that it was possible that materials found there had been left by previous occupants or indeed put there by third persons because it is practically possible for people to obtain access to the house through the garage or
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- over the fence or through the back and that these materials could have been hidden there.
11 In relation to the money found at the house in a safe, he contends that none of that money belongs to him, that it belongs to a woman whose name has been mentioned and that he was not aware of the presence of or the existence in any shape or form of that money. It is the case for the prosecution that the woman concerned is a co-accused and has been charged in connection with related offences.
12 Further, in relation to certain drugs, methylamphetamine, which were found in pockets of clothing of the applicant, he contends that he purchased herbal remedies or was given herbal remedies by friends or acquaintances of the Asian community without knowing that any of the substances were illegal; otherwise, he denies knowledge or ownership of any of the methylamphetamine found at or near the premises. He contends that he is suffering the consequences of a work-related injury which has caused him pain and discomfort, that he has been off work and in need of pain relief or other medication and, hence, the resort to herbal remedies for these purposes.
13 Mr Tran also advances the submissions that he resides permanently in Western Australia, that his connections are all with this State where he has lived for many years since migrating to this country as a refugee, that he is presently unemployed because of the work-caused injury, that he has restricted assets and means and that he is responsible for the care of children which necessitates his presence at liberty in the community for their welfare.
14 He also contends that it is necessary for him to be at liberty in the community to receive treatment for the injuries and consequences for the workers compensation accident that I have already described, and to comply with procedures which are being demanded by the workers compensation insurer to evaluate and measure the extent of his continuing disability. There is medical evidence to establish that he was injured and that he does have some degree of disability.
15 The submissions advanced by the respondent in opposition to the grant of the bail are on the basis that the offences charged or at least the charges of being in possession of methylamphetamine and heroin are very serious offences and, as such, render it inappropriate for bail to be granted. In relation to those offences and generally, the respondent submits that there is a significant risk of flight as a result of the strong
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- prosecution case and the prospect of lengthy terms of imprisonment. These were essentially the reasons relied upon by his Honour Magistrate Cicchini for refusing bail in September, as I have already mentioned.
16 The applicant does have a small record for previous criminal conduct. He was convicted of stealing as a servant in August 2005 in the Magistrates Court in Perth and fined $300 and a spent conviction order was then made. That indicates that the offence must have been relatively minor. The explanation offered by the applicant is that he stole two crayfish from his employer's business and was charged. It is not possible or necessary to verify whether that, in fact, is the situation but, on any view, the prior criminal record is minor and would not justify the refusal of bail.
17 Submissions made by the respondent have referred me to the decision of the Court of Appeal in Milenkovski v State of Western Australia [2011] WASCA 99 [39] - [41]. The submission is that bail should be granted if there is no material providing a proper foundation for refusing it. In practical terms, it will often be left to the State to provide the material required to allow a proper examination of any foundation for refusing bail and under the provisions of the Bail Act this court can inform itself of matters relevant to the grant or withholding of bail.
18 As was said by the Court of Appeal in Milenkovski, a Judge considering the grant or refusal of bail is required to address the question of whether the applicant, if not kept in custody, possibly might do one or other of the things referred to in cl 1(a) of the schedule to the Bail Act and to answer all the other mandatory questions in cl 1, including whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility and in that regard attention must be given to all the matters in cl 3 of Pt C.
19 I therefore go to cl 1(a) of Pt C to sch 1 of the Bail Act. This deals with bail before conviction being at the discretion of the court. It provides that subject to cl 3(a) and cl 3(c), which do not apply in this case. the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant.
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20 Then follow four factors under cl 1(a): whether, if the accused is not kept in custody, he may - (i) fail to appear in court in accordance with his bail undertaking, a factor raised for consideration by the respondent; (ii) commit an offence, a matter not alleged in this case; (iii) endanger the safety, welfare, or property of any person - that is not directly alleged but nevertheless the respondent submits that if bail is to be granted, conditions should be imposed prohibiting the applicant from communicating with any witnesses - or (iv) whether the applicant might interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
21 I can say that in relation to those two factors, endangering the safety or welfare or property of a person or interference with witnesses, I am satisfied that the imposition of appropriate conditions could meet any risk. The next factor is whether the accused needs to be held in custody for his own protection. That was not suggested in the present case. The next factor is whether the prosecutor has put forward grounds for opposing the grant of bail. As I have already said, the prosecution has done so in the present case and I have identified them. The significance of them remains to be evaluated.
22 Next, whether as regards to the period when the accused is on trial there are grounds for believing that if he is not kept in custody, the proper conduct of the trial may be prejudiced. This does not apply in the present circumstances and was not relied upon; (a) whether there is any condition which could reasonably be imposed under Pt D which would (i) sufficiently remove the possibility referred to in any of the paragraphs which I have just read; (ii) obviate the need referred to in par (b), that is, for protection; (iii) remove the grounds for opposition referred to in par (c), the grounds put forward by the accused.
23 In that regard counsel for the applicant has submitted that stringent reporting conditions, surrender of passport or passports already ordered and accomplished and conditions restricting the applicant from going anywhere near an airport, port or other point of departure would meet the fight risk. Again it would be necessary for me to consider that in more detail shortly.
24 There are other factors relating to offences against children which do not apply and then under Pt C cl 1(g), whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. This is specifically relied upon by the prosecution and, as I have already said, was a factor, a significant
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- factor, in the reasons given by the learned magistrate for refusing bail. I shall return to that.
25 Further, in considering an application for bail, I am obliged to consider the matters stated as relevant applicable to these considerations. They are contained in cl 3 of sch 1 which provides:
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant -
(a) the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted.
26 Can I say in relation to that matter that these offences are all very serious, including the offences alleged under the Criminal Code, being in possession of a large amount of cash because of the implication that that involves an offence associated with a large-scale, illicit drug dealing. There are not other offences to be considered for which the applicant is awaiting trial so I put that consideration to one side.
27 As for the probable method of dealing with the accused for these offences if he were to be convicted, the probabilities are extremely high that if he were to be convicted of these offences or either of the illicit possession offences alone, he would receive lengthy periods or a period of imprisonment likely to last for many years so that the consequences of conviction for him are very grave and hence the temptation to abscond has to be measured having regard to the consequences which I have just mentioned.
28 Returning to cl 3, the second matter stated as relevant is the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the accused. I have already mentioned that he has only one previous conviction and no other imputations have been made against his character.
29 As for associations, there are positive allegations by the prosecution and the police officer that he is associated with several co-accused, at least two, actively involved in distributing illicit drugs. As for the home environment, it is at the home where the arrest was effected and in the house were also found implements or materials associated with drug dealing.
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30 As to his financial position, there is no basis for concluding that the applicant is wealthy or secure. The premises are rented. He had moved from earlier rented accommodation. He has for some time been unemployed and is in receipt of social security benefits and/or workers compensation payments because of injury. Nominally, or apparently, his financial circumstances are restricted but that renders it all the more peculiar and suspicious that the large amounts of cash which are the subject of two of the charges should have been found where he was living.
31 I am also bound to consider the history of any previous grants of bail to him. I have been told that he complied with bail when previously imposed but that would appear to be only in relation to the charge of stealing as a servant, the consequences of which were relatively minor, and then I am obliged to consider the strength of the evidence against him.
32 It has been submitted that the prosecution case is very strong, but at this stage there are no materials which formally comprise a brief such as depositions or prosecution statements. There are not even certificates of analysis from pharmacists or scientists confirming that the material seized was methylamphetamine and heroin, although initial presumptive tests have been positive in each instance.
33 Nevertheless, the prosecution submits that all of the money and the large quantity of the drugs, the basis of the charges, were found at the home rented by the applicant. There was approximately 216 grams of methylamphetamine and 485 grams of heroin and, as I have already said, $115,600 in cash. It has been submitted that those quantities of methylamphetamine and of heroin are themselves very valuable in the illegal trade and are indicative of a large scale drug distribution.
34 Next, the prosecution submits that the drugs were found on top of and behind a microwave oven, the pocket of a shirt of the accused hanging in the wardrobe of his bedroom, and buried in a rear garden and in a rear shed. It is pointed out that there were nine packages of drugs in various locations, four separate packages of heroin and five separate packages of amphetamine, obviously concealed at various places which, it was submitted to me by the respondent, indicates that forgetfulness by some prior occupant is unlikely.
35 The prosecution also submits that items associated with the trade in illicit drugs were found at the house, including numerous clipseal bags, scales and the cash already mentioned. The prosecution also submits that there are lengthy telephone intercept recordings of the applicant speaking
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- to a girlfriend requesting her to travel to Sydney to assist another person who the applicant says owns the cash to collect methylamphetamine and the person who is said to own the cash was arrested at Perth Domestic Airport on the evening of 11 September 2012 and found to be in possession of a significant quantity of methylamphetamine.
36 Telephone intercepts are capable of suggesting, so it is submitted, that the applicant is a senior organiser in a drug distribution organisation and that other persons were responding to his orders and directions in collecting and distributing drugs.
37 Finally, the respondent refers to the likely terms of imprisonment which might be imposed for conviction of these offences and refers to a case of Pham v State of Western Australia [2011] WASCA 244 where a total effective sentence of 9 years' immediate imprisonment was upheld for convictions involving possession of methylamphetamine and the possession of heroin with intent to sell or supply and cash much less than the cash in the present case and heroin considerably less in quantity but methylamphetamine of more than twice this quantity.
38 The respondent submits that because of the seriousness of the charges, it is not appropriate to impose bail and, furthermore, that there is a significant flight risk. In the affidavits I have been taken to various precautions which might be imposed to minimise the flight risk, including alerts at airports. Without going into the details, it has been pointed out that those alert systems are not adequate to prevent interstate travel under assumed names for which no passports are required and that there are, as always there must be, ways of getting around even international travel restrictions.
39 It seems to me that, in the present case, there is a very strong case for the prosecution. It also seems to me that the consequences of conviction render the imposition of penalties of a dimension so high that the incentive to abscond must be very powerful and that there is accordingly a risk of flight.
40 One factor which I have not yet mentioned or discussed which is put on behalf of the applicant is that if bail is not granted, he may face significant delay before being brought to court. It has been pointed out that there are not even preliminary papers for a brief available and that, although there is a committal hearing listed for 21 December 2012 in the Magistrates Court, it could be six to eight months before a committal hearing was actually heard.
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41 Then if the accused were to be remanded for trial in the District Court, several further months may pass and being in custody on remand without bail for the length of time suggested by those possibilities would be an extremely great hardship, rendered all the more unendurable by the applicant's anxiety for his daughter, his need for medical treatment and the progress of his workers compensation claim.
42 I do not consider that delays of that duration are by any means inevitable and I would expect that if delay of that magnitude was likely, that would provide changed circumstances which would support an application for a reconsideration of any bail should I refuse it, and I am not disposed to have this application determined by potential delay.
43 In this case, like the learned magistrate, I consider that the seriousness of these charges are such as to render bail inappropriate. I also consider that there is an irreducible risk of flight if bail were granted and I am not satisfied that the kind of precautions which might be imposed, as I have outlined, would be sufficient to counteract that. For those reasons the application for bail is refused.
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