Applicant v THE DIRECTOR OF PUBLIC PROSECUTIONS

3 On 20 March 2015, the applicant applied for bail in the Magistrates' Court. On 25 March 2015, Magistrate Rozencwajg refused bail, on the ground that she had not demonstrated exceptional circumstances. His Honour did not make any finding on the issue of unacceptable risk.

4 By notice filed in this court on 22 April 2015, the applicant seeks bail.

5 The applicant argues that exceptional circumstances are shown because of the following matters:

(a) The nature of the prosecution case, and her alleged role in the offending;

(c) The effect on herself and her young son of separation for such a period of time;

(f) Her young age and vulnerability within the prison system;

(g) Her lack of prior convictions or bail history; and

(h) Her preparedness to abide strict bail conditions.

6 The DPP disputes that exceptional circumstances have been shown. The DPP also opposes bail on the basis that the applicant presents an unacceptable risk of fleeing the jurisdiction, and committing further offences, while on bail.

7 The Bail Act 1977 does not specify what considerations may be relevant to establishing exceptional circumstances. It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant, before those circumstances can be characterised as exceptional. But, although the hurdle is a high one, it "should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail."[1]

8 Exceptional circumstances may be established by one particular factor, or (more usually) a combination of factors.

9 Between April 2014 and January 2015, police undertook an investigation codenamed OPERATION RE-EXPOSING into a syndicate alleged to be involved in large-scale cannabis cultivation (primarily during 2014). The police allege that the various accused persons played the following roles in the syndicate:

(a) Loc Duy Tran was the principal organiser of the syndicate;[2]

(b) Chi Thang Chung and Vasilios Maikantis were senior members of the syndicate, who sourced the properties which were used as crop houses;

(c) The applicant and her husband, Hoang Kien Nguyen, were "middle managers", who looked after the crop houses, overseeing their fit-outs and recruiting crop-sitters.

10 The applicant is in an exceptional circumstances situation in respect of one charge of cultivating a large commercial quantity, and three charges of cultivating a commercial quantity.

11 The large commercial quantity charge is said to reflect her participation in the syndicate's total joint criminal enterprise. A large commercial quantity of cannabis is 250 kg or 1000 plants. On the material currently before the court, the total amount of cannabis seized by police was 735 plants, weighing 246 kg; that is less than a large commercial quantity. Unless further evidence can be obtained, the large commercial quantity charge seems unlikely to succeed against the applicant.

12 There is evidence linking the applicant and her husband with two of the six alleged crop houses, being properties in Caulfield North and Richmond. That evidence includes witness statements and documents, which appear to link the couple to the leasing or payment of rent for the two properties. There are also summaries of telephone intercepts and text messages, in which the applicant apparently demonstrates some knowledge of, or involvement with, those crop houses. Equipment typically used in the hydroponic cultivation of cannabis was also seized at their family home in Kensington.

13 The amount of cannabis seized from both properties was substantial. From the Caulfield North property, the police seized 174 cannabis plants, with a weight of 49 kg. From the Richmond property, they seized 321 plants, with a weight of 97 kg. A commercial quantity of cannabis is 25 kg or 100 plants.

14 The applicant intends to contest the charges. She says that her role was simply to act as the English language translator for her husband, who apparently does not speak English. Unfortunately, the way in which the intercepts have been summarised for current purposes does not allow the court to evaluate properly whether or not that is the case. In some cases, it is not clear from the summary who is sending the relevant text or involved in the call. In at least some of her conversations, the applicant appears to have been doing more than simply translating. Her claim to police that she did not know the co-accused Tran and Maikantis seems doubtful (although it is possible she knew them under a different name).

15 It is often difficult for the court hearing a bail application to evaluate the strength of the prosecution case, given the limited amount of information available at that time. However, for present purposes, I accept that the prosecution case against the applicant in relation to the charges of cultivating commercial quantities at the Caulfield North and Richmond properties is not a weak one.

16 Assessing the strength of the prosecution case against the applicant in relation to the other four crop houses is more problematic. Three of the four properties were leased in the name of the co-accused Maikantis. The fourth property (in Bulleen) was in the name of "David Nguyen"; that was also the name on the lease for the Caulfield North property, but there is otherwise no evidence before the court of a connection between the applicant or her husband and the Bulleen property. Many of the texts or calls do not actually refer to a specific property; how and why the police have assumed for the purposes of the summary that they relate to particular properties is unknown. Further, I note that only one of those four properties (being the one at Clayton Road, Clayton) involves a charge of cultivating a commercial quantity.

17 The nature and strength of the prosecution case against the applicant will be better able to be assessed after the delivery of the brief and the committal hearing. Likewise, the respective roles of herself and her husband, will become clearer. Some charges may be dropped, others may be added. For present purposes, it is sufficient to note that the prosecution case against the applicant is not a weak one, at least in respect of two charges of cultivating a commercial quantity of cannabis. However, I also note that she is not alleged to be one of the syndicate principals.

18 The likely period that an applicant would spend remanded in custody prior to trial may be relevant to a bail application in a number of ways:

(a) Inordinate delay may constitute exceptional circumstances in itself. There is no point in time at which delay necessarily becomes inordinate or unreasonable; each case turns on its own facts;

(b) Something less than inordinate delay may, in combination with other matters, constitute exceptional circumstances;

(c) It is also well-established that if the time spent on remand is likely to exceed the total effective sentence which would be imposed if the applicant was convicted, that may also be relevant to establishing exceptional circumstances;

(d) The applicant referred to a decision of Nettle JA in Hanna v DPP,[3] which put a further gloss on the principle stated in (c) above. In that case, his Honour commented that "there may ... be cases in which a grant of bail is warranted for no more reason than that the likely period of delay is as much or even a significant fraction of the likely non-parole period."[4] In that case, his Honour found that the time on remand (2 ½ years) was likely to exceed the non-parole period which would be set on conviction, so it was not necessary for him to expand on what a "significant fraction" would be.

19 Here, the applicant was remanded in custody on 26 February 2015.

20 The brief of evidence is due on 20 August 2015. Although there is considerable surveillance and forensic material to collate, the police are giving these cases priority. At present, there is every indication that the brief will be served on time.

21 A committal mention has been listed for 6 October 2015. An expedited committal hearing has been fixed for November 2015.

22 Assuming that most of the co-accused will still be in custody, it is likely that a County Court trial could be held around September or October 2016. That would be a period of some 19 or 20 months since the applicant was arrested.

23 Of course, any period on remand may in fact be shorter (if the applicant and prosecution reach agreement on a plea), or longer (if there are delays with the preparation of the brief, or with listing the trial).

24 A period of around 20 months is not so inordinate as to amount to exceptional circumstances in itself, particularly given the nature and seriousness of the charges.

25 However, such a period may well represent a significant fraction of any likely non-parole period that the applicant might receive if convicted at trial. And, if there are substantial delays in the trial of these charges, such a period may even approach the total effective sentence which she may receive.

26 For the reasons given earlier, the charge of cultivating a large commercial quantity is unlikely to succeed against the applicant on the current evidence. Accordingly, I will not consider the possible sentencing range for such an offence.

27 The offence of cultivating a commercial quantity of cannabis carries a maximum penalty of 25 years' imprisonment and/or a fine of up to 3,000 penalty units. According to the relevant Sentencing Advisory Council's sentencing snapshot for the period from 2008-9 to 2012-13, for those offenders who were sentenced to a term of imprisonment: the most common range of sentence was 2 to 3 years; the average sentence ranged from a low of 2 years and 2 months in 2010-11, to a high of 2 years and 7 months in 2009-10; and the most common range for the non-parole period was 1 to 2 years.

28 Those figures are consistent with the overview of Court of Appeal decisions on commercial cultivation sentences between 2006 and 2012, set out in a JCV document upon which the prosecution relied. Most of the cases on that list involved pleas. The amount of drugs involved ranged from just over the commercial threshold to just under the large commercial threshold. The vast majority of the cases listed in that document involved head sentences in the range of 2 to 3 years.

29 In considering what sentence the applicant might receive if convicted at trial of commercial cultivation at the Caulfield North and Richmond properties, I bear in mind that substantial amounts of cannabis were seized at both of those properties. On the other hand, the applicant is relatively young, has no criminal history, and appears to have been less criminally involved than her husband. She is not alleged to have been a syndicate principal. Her parenting responsibilities for her young son may also be a relevant sentencing consideration (particularly if her husband receives a substantial custodial sentence).

30 On the material currently before the court, it is not unreasonable to conclude that the applicant could receive a total effective sentence of somewhere around 2 to 3 years' imprisonment, with a non-parole period of somewhere between 1 to 2 years.[5] The expected pre-trial period of around 20 months would be likely to be equal to, or greater than, such a non-parole period. Even if the applicant received a total sentence of 3 to 4 years' imprisonment, such a pre-trial period would represent a significant fraction of the likely non-parole period.

31 That fact, in itself, goes some way towards establishing exceptional circumstances. But in this case, the pre-trial period has another, substantial significance: namely, its potential effect on the psychological well-being of the applicant's only child, her 8 year old son (which is a matter that will be considered shortly).

32 Although the applicant is 26 years old, and has never been in custody before, those matters are not exceptional on their own.

33 In March 2015, the applicant was assessed by Sandra Nguyen, a counselling psychologist, for the purpose of her Magistrates' Court bail application.

34 Ms Nguyen has diagnosed the applicant as suffering from a major depressive disorder with melancholic features, and a generalised anxiety disorder.

35 The applicant reported a history of stress and depression, starting when she and her husband were first married and living in Vietnam. She described him as being physically and emotionally abusive towards her. Suffering from post-natal depression after the birth of her son, she did not initially bond well with him and struggled to manage her depression. The marital conflicts continued after they returned to Australia. She reported having attempted suicide a couple of times in 2008. After surgery in 2011, the applicant was devastated to learn that she could not have any more children.

36 The applicant has been finding it very painful to be separated from her son; before she was arrested, they had never spent a night apart. According to Ms Nguyen, the applicant is extremely distressed by their separation, and concerned for his welfare. She was placed on observation watch for her first few nights in custody, because she had suicidal thoughts.

37 The applicant is not currently on any antidepressant or antianxiety medication, or receiving counselling for any psychological problems.

38 The Dame Phyllis Frost Centre, where the applicant is being held, has medical and psychological facilities available. Whilst they are not as extensive as those in the community, there is no evidence that those facilities would not be adequate to address the applicant's needs. As the applicant speaks fluent English, there is no concern about her ability to communicate with health professionals in custody.

39 The prosecution is not aware of any evidence of pre-existing depression, apart from what the applicant has told Ms Nguyen. Even accepting for present purposes that the history given to Ms Nguyen is accurate, and that the applicant is suffering from anxiety and depressive disorders, I would not give much weight to her own psychological condition, in determining whether exceptional circumstances have been established.

40 The 8 year old boy is being cared for by his maternal grandparents, as both of his parents are in custody. There is no suggestion that they are not providing a suitable environment for him.

41 A report about the boy was prepared by a psychologist, Ms Linh Phan, dated 6 May 2015. This report was not available when the original application for bail was made.

42 Ms Phan has seen the boy in a therapeutic context on three occasions since his parents' arrests. She says that he displays symptoms of an adjustment disorder of mixed anxiety and depressed mood.

43 Ms Phan describes the relationship between the applicant and her son as "highly enmeshed and dependent".

44 The son suffers from a number of significant learning deficits, which pre-date his parents' arrests, and receives specialised assistance at school.

45 According to Ms Phan, the boy is struggling to function at home and at school, and demonstrates a range of symptoms that are indicative of severe emotional distress at being separated from his parents (particularly his mother). Given his age, Ms Phan believes that being separated from his mother for the likely time until trial may have a long-lasting and profound impact on the son's development.

46 In the sentencing context, courts frequently have to consider whether family hardship gives rise to "exceptional circumstances." Where imprisonment of both parents would leave young children without parental care, that may constitute exceptional circumstances, leading to the reduction or suspension of sentence.[6]

47 Sentencing and bail considerations are not identical. However, as a matter of principle, the fact that a young child may otherwise be left without parental care for a substantial period of time may constitute exceptional circumstances for the purposes of a bail application.

48 The applicant and her family arrived in Australia in 1992, as refugees from the conflicts in Vietnam.

49 She left school in year 10 and trained as a hairdresser. She met her husband when she was 15 and he was 24. She lived with her parents until she married. Immediately after their marriage, her husband was deported because he had overstayed his visa. The applicant accompanied him to Vietnam. Their son was born in Vietnam, when the applicant was 18. They lived there until 2008, when the husband obtained a resident spouse visa. They have all lived in Melbourne since then.

50 If granted bail, it is proposed that the applicant and her son would live with her parents at their home in Delahey.

51 Her Victorian assets have been restrained, in circumstances which will be discussed later in these reasons.

52 I would give little weight to the applicant's connections with Victoria, in determining whether exceptional circumstances have been established.

53 The applicant's parents, Mrs Thi Hien Trinh and Mr Hoang Ha Cao, are prepared to act as sureties, secured over the substantial equity of $170,000 in their home at Delahey. The police do not suggest that the applicant's parents are not suitable persons to act as sureties.

54 I agree with the prosecution that the existence of a surety is irrelevant to exceptional circumstances, and should only be considered in relation to risk assessment if exceptional circumstances are otherwise made out.

The applicant's preparedness to abide strict bail conditions

55 This is the final matter which is put forward in support of the application. It is difficult to see how an applicant's "preparedness" to abide by conditions imposed by the court could possibly constitute exceptional circumstances (either on its own or in combination with other factors). I would give this no weight.

56 I am satisfied that exceptional circumstances have been established. In coming to that conclusion, I am particularly influenced by the following matters:

(a) The expected pre-trial period of around 20 months would be similar to, or at least represent a significant fraction of, the non-parole period which the applicant might expect to receive if convicted at trial (based on the evidence currently before the court); and

(b) If both of his parents are remanded in custody for such a long period, that may have a long-lasting and profound effect on their young son, who is struggling with a range of psychological problems on top of his various learning deficits. The child is particularly close to his mother.

57 Although the applicant's personal situation (including her age, lack of criminal history, and psychological problems) are not exceptional in themselves, they add some (albeit slight) weight to the conclusion that exceptional circumstances have been established.

58 The prosecution argues that there is an unacceptable risk of the applicant:

59 There is always some risk if an applicant is released on bail, but the question is whether that risk is so unacceptable that bail ought to be refused. In considering the issue of risk, the court is required (by s 4(3) of the Bail Act) to have regard to all relevant matters, including:

(a) The nature and seriousness of the alleged offences;

(b) The applicant's character, antecedents, associations, home environment and background;

(c) The history of any previous grants of bail to the applicant;

(d) The strength of the evidence against the applicant;

(e) The attitude, if expressed to the court, of any alleged victim of the offence(s) to the grant of bail; and

(f) Any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.

60 Many of these factors overlap with matters already considered in the context of exceptional circumstances.

61 In 2009, the applicant and her husband bought a property in Kensington; it was put in her name. Apparently, the purchase price of $620,000 was funded partly by money from the husband's family in Vietnam, and partly by a bank loan of around $500,000.

62 The couple own an investment property in Ballarat Road, Maidstone. Prior to his arrest, the husband apparently wanted to establish a car wash business on the site. It is said that the proceeds from the sale of a Mercedes-Benz car a few months ago (some $90,000) were to be invested in the new business.

63 The applicant and her husband decided to sell the Kensington property, and live in a rental property, until they could afford to buy another house.

64 On 25 February 2015, the day before she was arrested, the applicant appointed real estate agents to sell the Kensington property. Although one of the agents informed the police that the applicant said she wanted an "urgent" sale, the terms of the appointment suggest otherwise: an auction was to be held on 18 April 2015, with the purchaser having the option of settling 30, 60 or 90 days thereafter.

65 Three of the applicant's co-accused were arrested between 8 January and 2 February 2015; their assets were subsequently restrained by court order. The police allege that, having learned of those arrests, the applicant decided to sell the Kensington property and relocate to Queensland. It is not clear precisely when the accused learned of their arrests, but her appointment of an agent does not seem to have been particularly hasty. It is true that the police found results of property searches in Queensland on the applicant's computer and phone. But, if fleeing was her intention, she could have done so immediately upon learning of the arrests, and handled the sale of the property from interstate or overseas. There is also evidence that the applicant had travelled to Queensland in December 2014; if moving to Queensland was on her mind, that was a thought that could have predated any of the arrests of the co-accused.

66 In any event, on 17 March 2015, the police obtained a restraining order in the County Court, freezing all of the applicant's assets, including the Kensington property and the proceeds of sale of the Mercedes-Benz.

67 There is some evidence that drivers' licences and identification cards in other peoples' names were found by police at the applicant's home. Whether they were obtained by the applicant and/or her husband is not apparent. I assume for present purposes that the applicant may have some capacity to obtain false identification papers, which could be used to apply for a passport in another's name.

68 The prosecution does not suggest that the applicant would flee without her son, or that she would flee while her husband remains in custody. All their Victorian assets having been frozen, she could not flee and live elsewhere without financial support from some other (as yet, unidentified) person(s). Her parents are prepared to provide a substantial surety; they risk losing their home if she fails to answer bail.

69 Apart from the usual bail conditions requiring the applicant to surrender her passport and not attend at international departure points, I propose to impose a daily reporting requirement. Whilst it cannot be said that there is no risk of flight, the risk is not an unacceptable one.

70 The applicant and her husband have, for some years, lived a rather luxurious lifestyle. For example, when police searched their home, they found around 30 mobile phones, numerous designer handbags (plus receipts showing expenditure of $26,000 on such items), and expensive alcohol (costing more than $20,000).

71 In late December 2013, she bought a Mercedes-Benz car for $132,000; about half of the purchase price was paid in money, and the remainder by way of trade-in on a 2011 Mercedes-Benz. Those car purchases predated the alleged commencement of the cannabis syndicate.

72 There was a bank mortgage over the Kensington home; monthly repayments were in the order of $3,700. The mortgage has gone into default since the arrests of the applicant and her husband.

73 Her tax return for the financial year ending 2012 showed that she received income of just over $50,000 from a partnership with her husband. After taking into account her share of losses on the Maidstone investment property, her total taxable income was around $38,000.

74 Single-paged documents headed "income tax return tax estimates" for the applicant and her husband for the financial year ending 2014 showed they each had a taxable income that year of just over $22,000. Those estimate documents do not show any breakdown of how those sums have been calculated, or the sources of income.

75 The applicant apparently told police that she has not been employed or received any government benefits for about two years.

76 The applicant and her husband's lifestyle was clearly beyond their declared income. This led the police to be concerned that:

(a) Their lifestyle was being funded solely by the proceeds of crime;[7] and

(b) If released on bail, the applicant would continue to offend to support her lifestyle.

77 At the hearing before me, the applicant produced documents which suggested possible sources of funding for their lifestyle other than the proceeds of crime. Between May 2009 and June 2014, funds totalling around $355,000 were transferred to the applicant or her husband from Vietnam; that is consistent with the evidence that the applicant's husband comes from a wealthy Vietnamese family. Documents from the Crown casino and Tattersall's show the applicant and her husband received a total of almost $120,000 by way of gambling proceeds in the period from June 2009 until January 2011; how much they gambled in order to produce such returns is unknown, but it is evidence of another possible source of funding for their lifestyle.

78 The handbags seized by the police were not cheap copies obtained in Vietnam (as apparently alleged by the applicant), but genuine designer articles. The applicant tendered a large bundle of receipts, showing purchases of Louis Vuitton, Gucci and Hermes handbags and clothing totalling around $75,000, in the period from 2010 to 2014. About $18,000 of that total was spent in 2014, the year in which the alleged syndicate activities occurred.

79 The applicant's house was decorated entirely in pink. Her counsel says that her penchant for designer handbags and clothes is simply a further reflection of her immaturity.

80 The suggestion that the applicant will commit further crimes to fund her lifestyle is speculative. She had no criminal history prior to the current charges. She is not addicted to any substances. Whilst on bail, she will be living with her parents and son, under strict bail conditions. There is no evidence that her parents are not suitable persons for her to live with. They have undertaken to the court to report immediately to the informant, upon becoming aware of any breaches of her bail conditions. She will no doubt be well aware that the police are likely to be keeping a close eye on her activities while she is on bail.

81 The prosecution points out that the applicant's older brother, Markus Cao, has a criminal history going back to 2004, most of which relates to drug possession and trafficking. But there is no suggestion that the applicant has been involved in any of her brother's criminal activities.

82 I am not persuaded that there is an unacceptable risk of the applicant re-offending, if bail is granted.

(a) The applicant has demonstrated exceptional circumstances; and

(b) Any risk of her committing further offences or fleeing the jurisdiction are not unacceptable, on strict bail conditions.

[1] Whiteside [1999] VSC 413 at [10] (Warren J).

[2] He has also been charged with being the head of another syndicate, involved in poly-drug trafficking.

[3] Unreported, Supreme Court of Victoria, 9 May 2008.

[5] That assumes conviction of the two commercial quantity charges, and theft of electricity for those two properties. The charges of possessing proceeds of crime and prohibited weapons are unlikely to add much to her sentence, assuming they are proven.

[6] See Markovic v R [2010] VSCA 105 at [79], and the cases referred to in footnotes 39 and 40 thereof.

[7] This is reflected in charge 17 - dealing with property suspected of being proceeds of crime.