LUC VAN NGUYEN v VICTORIA POLICE

1. The Informant gave some further oral evidence, to the effect that:

(a) In his initial application for a visa to come to Australia, the applicant said that he was coming to Australia with his brother to visit his uncle and his uncle was sponsoring him. The man visiting Ms Phan when the Informant attended at their premises (whom Ms Phan identifies as the applicant's uncle) was called Hieu Nguyen. When it was put to the Informant in cross-examination that the applicant and Ms Phan did not have much contact with Hieu Nguyen, the Informant said that, according to drivers' licence data, Hieu Nguyen and the applicant both resided at 88 Corio Drive until mid-January 2025, that was the address to which the applicant had been bailed in 2021, that was the address that Home Affairs had for the applicant, and the applicant gave that address when the Informant first interviewed him. The Informant contended that the applicant and Ms Phan had lied when they said they had no family in Australia;

(b) Ms Phan's visa application indicated that she had a brother. That person lived in New South Wales and, as noted earlier, there was a warrant for his arrest outstanding in New South Wales;

(c) The applicant had previously applied to have his work restriction removed from his visa, and that application had taken approximately two months to be resolved. Apparently that application was refused, but then, by means not made clear, a new visa was issued that did not prevent the applicant from working. What happened after that was not made clear, but as I understood it, it was common ground that the applicant's current visa prevents him from working.;

(d) An informally-translated message found on the applicant's phone sent at 11pm on 30 December 2024 by the applicant to his co-accused said that the applicant had 'work' the next day and that he would 'to go work around 12 to 1pm'. The applicant was seen observed the next day at the factory at around midday. This, it was suggested, indicated that the work the applicant was referring to was work at the factory;

(e) She was concerned that if the applicant were granted bail he would fail to appear. On the previous occasion when the applicant did comply with his bail conditions, Victoria was 'right in the thick of COVID' and so borders were closed and there were no international flights and it was much more difficult to move around undetected. Further, she said that the evidence against the applicant this time was much stronger (as reflected by the fact that the previous charges were ultimately dropped because there was 'insufficient evidence'), the applicant had nothing tying him and his family to Victoria, and the fact that the factory was leased with stolen details and fraudulent driver's licenses and passports indicates that the applicant likely has access to people for whom forging identities is possible. The Informant said:

... there's no real reason that Ms Phan, Mr Nguyen and the two children can't jump in a car and within a few hours be interstate and that's going to be impossible for us to find him.

(f) Another concern was that the applicant would commit further Schedule 1 or Schedule 2 offences if released on bail. In this context, she said that: the applicant's fingerprints were found on a whisky bottle found at a drug 'processing house' in Mulgrave that she said was associated with the factory in Braeside; in September 2021, the applicant's fingerprints were found on a cardboard box found at another 'crop house' in Box Hill; and the applicant's vehicle was parked in the carport on the property in respect to which Ms Phan was charged and found guilty.

1. I reserved my decision. The following day, the applicant's lawyers asked that I delay making my decision until they had had the opportunity of reviewing the Court of Appeal decision handed down that day in which they granted Tony Mokbel bail pending his appeal.[2] I said I would do so.
2. On 7 April 2025, the applicant's lawyers indicated that, having reviewed the Court of Appeal's decision, they would not be seeking leave to file further submissions in support of the applicant's application for bail.

1. The offending, if proved, would be a serious example of the offences of cultivating and trafficking in cannabis. This was, on any view, a large and sophisticated commercial cannabis growing venture.
2. I accept that there are triable issues in relation to the level if any of the applicant's involvement and, in particular, whether it can be proved beyond reasonable doubt that the applicant 'cultivated' or 'trafficked' a narcotic plant, or intentionally cultivated or trafficked 'not less than a commercial quantity'. The prosecution will invite the jury to draw the necessary inferences from circumstance including the facts that the applicant is shown (it is alleged) on CCTV pacing out internal spaces in the factory after it was first leased and before the infrastructure was installed, spent some five hours in the factory on the day of his arrest when there is nothing at the factory other than the cannabis growing infrastructure, had regularly attended Braeside or the area where the factory is located in the months before his arrest, sent a text message that on one view suggests that the factory was where he worked, fled when the police appeared, has no other apparent reason for attending the property, and his fingerprint was found on a bottle at drug premises that were associated with this factory. Further, according to the Informant, when interviewed the applicant denied ever being inside the factory, which is in conflict with what the CCTV seems to show. I accept that the evidence relating to his fingerprint is weak as the print is on a bottle that is capable of being moved by others. Even so, and despite the case being circumstantial, I do not consider the case against the applicant to be weak; although there are certainly triable issues, it appears to me to be at least moderately strong.
3. Any trial is unlikely to before the second half of next year. Accordingly, if not granted bail, the applicant will by then have spent something approaching 2 years on remand. The median sentence for persons convicted of cultivating cannabis in a quantity that is not less than a commercial quantity is in the order of 2½ years and the median non-parole period is in the region of 1½ years.[3] Section 3AAA(1)(aa) of the Bail Act 1977 includes as one of the 'surrounding circumstances', to which regard must be had, whether the time on remand would exceed the 'term of imprisonment', not whether it would exceed the non-parole part of the term of imprisonment. On the basis of these figures, the applicant would not spend more time on remand that the term of any imprisonment.
4. I am, nonetheless, satisfied that there are exceptional circumstances that, but for the question of unacceptable risk, would justify the grant of bail. The circumstances that together, in my view, satisfy that test include the following:

(a) The applicant has no criminal record and complied with his bail conditions when released on bail in 2021;

(b) The applicant has a place to live, a partner and two children, and evidence placed before me from a general practitioner and psychologist establishes that his partner has postnatal depression, for which she is receiving treatment, and is finding it difficult to care for her daughters by herself. A psychologist has opined that the applicant's partner is in the 'extremely severe range' for depression, anxiety and stress. The three-year old is, apparently, not sleeping well and asking where her father is; and

(c) A friend has offered to put up a bail guarantee in the amount of $50,000.

1. I am, however, satisfied that the risk of the applicant if released on bail of committing an offence while on bail or failing to surrender into custody in accordance with the conditions of bail is, in the circumstances, unacceptable and cannot be adequately ameliorated by the imposition of conditions.
2. I consider that the applicant, if he wished to do so, could move, with or without his family, interstate or indeed overseas and not surrender into custody to face these charges, and in my view the risk that he might do so is unacceptable in the circumstances. He has no real family or other ties to Victoria other than his wife and two children, neither of whom are at school, and, I accept, at least for the purpose of assessing risk, that he probably has access to persons who could provide him with fake identity documents. He also faces the problem that he is presently in Australia on a bridging visa and, if he pleads guilty or these offences are proved and is not granted a protection visa, the prospects of his being able lawfully to remain in Australia after he has served a term of imprisonment is reduced. Further, I agree with the Informant that little comfort can be obtained from the fact that the applicant did not breach his bail conditions in 2021 because the case against him then was weaker than the case against him now and COVID made interstate or overseas movement much more difficult to perform undetected than is presently the case.
3. Also, the false statements in the visa applications and the applicant's apparent preparedness to work illegally are of concern. I accept the applicant's argument put through his counsel and supported by Ms Phan's affidavit that migration agents prepared their visa applications. But neither Ms Phan nor the applicant were children when those applications were prepared and I infer that they signed them and did so knowing that they contained false information intended to mislead the authorities, and I note that Ms Phan does not suggest otherwise. Similarly, the false statement in Ms Phan's application to lease her current property that Mr Cao was her partner was knowingly made by Ms Phan and, I conclude in the absence of any suggestion to the contrary by Ms Phan, with the applicant's knowledge if not approval, so as to mislead the landlord into giving them the lease instead of someone else. These matters suggest that the applicant and Ms Phan are prepared to act dishonestly when they feel it is in their interests to do so at least to the extent that they would not feel constrained to comply with bail conditions.
4. I am also satisfied that there is an unacceptable risk that the applicant would commit a Schedule 1 or 2 offence if granted bail. The applicant has been in Australia since June 2019. Ms Phan has been in Australia since August 2019. Neither he nor Ms Phan are, apparently, entitled to social security benefits and so they both need to earn money to survive. No evidence of any actual earnings by either of them has been put before me, other than vague statements that at some times the applicant worked as a handyman and Ms Phan in a nail salon. Ms Phan, it has been established, engaged in drug offences, presumably for money, that warranted a period of imprisonment in 2021. The applicant, on the allegations, was working this year, again presumably for money, at a cannabis nursery. The applicant, at present, has no legal right to work in Australia and it is not clear whether that situation will ever change or if so when such a change could come into effect. Accordingly, there is a real risk, that in my assessment is unacceptable in the circumstances, that the applicant would engage in drug-related offences in order to earn money if he were granted bail.
5. In reaching these conclusions, I have not overlooked the position of Ms Phan. I have some difficulty accepting that she is as isolated as her affidavit would suggest in circumstances where, for the reasons set out above, she has been prepared to make false representation to further her interest in the past, has a criminal record, says she has worked in a nail salon and seemingly still has contact with people in that business, and the one time that the Informant attended her house the applicant's uncle was there with another person helping with the children. That said, I accept that not having the assistance of her partner with the care of her young children will substantially increase the burdens on her physically and emotionally and add to the distress of their children. Even bearing this in mind, however, I consider that the risk of the applicant failing to surrender into custody or committing offences if bail is granted remains unacceptable.
6. I have also not overlooked the fact that a $50,000 surety has been offered by Mr Tran. However, the relationship between him and the applicant is sufficiently distant that the risk that the applicant might breach his bail conditions is not sufficiently ameliorated to make the risk acceptable. The extent to which a bailed person might be prepared to breach bail conditions in a manner that leads to the forfeit of a surety may be informed by the nature of the relationship between the bailed person and the surety: a bailed person whose parents have put up their family home might be thought unlikely to engage in conduct that could lead to that home being forfeited because of the ties of familial affection. But that is not this case. In my view, the relationship between Mr Tran and the applicant is sufficiently distant that I am not satisfied that the applicant, who is facing serious charges, would be influenced to any real extent not to breach his bail conditions out of a concern that Mr Tran's security might be forfeited.

[1] Bail Act 1977 (Vic), ss 3AAA, 4A, 4E.

[2] Mokbel v The King [2025] VSCA 62.

[3] These figures come from 'Sentencing Snapshot 293', a publication of the Sentencing Advisory Council produced by the applicant.