Yuen v Director of Public Prosecutions

[2014] VSC 197

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S APCR 2014 0030

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an application for bail by JASON YUEN

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2014
DATE OF JUDGMENT:	5 May 2014
CASE MAY BE CITED AS:	Yuen v DPP
MEDIUM NEUTRAL CITATION:	[2014] VSC 197

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CRIMINAL LAW – Bail – Application for bail – Exceptional circumstances absent – Application refused – Bail Act 1977 ss 4(2)(aa), 4(1)(c) considered; DPP v Cozzi (2005) 12 VR 211 considered.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr M Tovey QC	Melasecca Kelly & Zayler
For the Crown	Mr A Tinney QC	Mr C Hyland, Solicitor for Public Prosecutions

HIS HONOUR:

1. Jason Yuen makes application for bail.  He was originally charged with trafficking both a large commercial quantity of methlyamphetamine and a large commercial quantity of cannabis.  There were a number of ancillary charges not relevant for present purposes.

1. He has now pleaded guilty to trafficking a commercial quantity of methlyamphetamine, and trafficking both cannabis and cocaine. The quantity of methlyamphetamine was almost one kilogram, and the quantity of cannabis trafficked was nine kilograms (with a further 58.74 kilograms attempted to be trafficked), and 28 grams of cocaine were also trafficked. His position is such that, pursuant to s 4(2)(aa) of the Bail Act 1977 (the “Act”), he must show that exceptional circumstances exist before being admitted to bail.

1. It was submitted on Mr Yuen’s behalf that since it was open to me to conclude affirmatively that the applicant was a very low risk of absconding, which taken together with other material (such as his family support, a stable supervised address, the availability of a surety, and the fact that he does not hold a passport), this would be sufficient to show that exceptional circumstances existed.

1. I was informed that the applicant’s plea was to be heard in August of this year.  It is accepted that he will be sentenced to a significant period of imprisonment, much greater than any time he will spend on remand.

1. I am not sure whether or not the proposition as to low risk of offending put on behalf of the applicant is correct, but even if it is, given the certainty of a substantial sentence, I am not satisfied that “there is a high degree of satisfaction that there is no unacceptable risk” as it was put by Mr Tovey on behalf of the applicant.

1. I raised with the parties the operation of s 4(1)(c) of the Act. After further consideration, I do not know that it can be said the applicant is a person “awaiting sentence” because he has not yet been arraigned in the County Court. It is regarded as a matter of public policy in ordinary cases that those who are likely to receive substantial sentences would not be granted bail when awaiting sentence. Although the sub-section does not strictly apply, the logic underpinning it has much the same effect in this case.

1. In this case, the question of a substantial sentence has passed from possibility to real certainty.  It follows that it would not be appropriate to reason that there is virtually no risk of absconding as against concluding that there is a risk based upon avoidance of the inevitable consequence.

I was referred to what Coldrey J had said in DPP v Cozzi,[1] and I accept that his Honour appropriately stated the applicable law.  It has long been held that a combination of matters are capable of amounting to exceptional circumstances.  It should be borne in mind that DPP v Cozzi was an appeal against the grant of bail.  The appeal could only succeed if error were shown.  It is authority for the proposition that it was open for the learned magistrate in that case to conclude that exceptional circumstances did exist.  His Honour said:

Ultimately, but not without some hesitation, I have come to the view that, despite the seriousness of the offences, the matter of the prospective delay, together with the other factors which the magistrate took into account in her decision (which I need not repeat but which I regard as encompassing the situation of the respondent’s wife) were capable, in combination, of constituting exceptional circumstances. Whether this court would have made that finding at that time is not to the point. The question is whether it was open to the magistrate to have done so. I have concluded that it was.[2]

[1](2005) 12 VR 211.

[2]Ibid, 217 [35].

1. In this case I am not prepared to find that exceptional circumstances have been made out, and I refuse the application.