Mae Loc Tran, bail application [2008] VSC 191 (23 May 2008)

2 On 12 May 2008, the applicant applied for bail to this court. The applicant is in a "show cause" situation under s 4(4) of the Bail Act 1977. The court is required to refuse bail unless the applicant shows cause why her detention in custody is not justified. The court is also required to refuse bail if the Crown satisfies it that there is an unacceptable risk that if the applicant was released she would, as the Crown suggests, commit further offences or fail to answer bail. Here there is considerable overlap between the factors which are said to show cause and the issue of unacceptable risk, so it is not necessary for me to determine whether these involve a single question or a two step approach.[1]

3 Ms Tran is currently on remand at Dame Phyllis Frost Centre. At the most recent contest mention in the Magistrates' Court on 19 May 2008, the charges were adjourned for further mention on 2 June 2008. Ms Tran has not yet entered a plea. Her solicitor has informed the court that, if bail is not granted, it is likely that at the next mention she will enter a plea of guilty to most, if not all, of the charges. So, unlike many of the bail applications which come before this court, the likely time until trial is not a factor relied upon in support of the application.

4 One of the factors relevant to a bail application is the strength of the prosecution case. Here, given the statements by the applicant's solicitor, I proceed on the basis that the prosecution case is a strong one. The police have located multiple items of clothing to a total value of almost $1,500, which Ms Tran has apparently shoplifted from various stores, as well as foils of heroin and almost $17,000 in cash.

5 Ms Tran has just turned 26. She has been addicted to heroin for the past five years. Apart from some part time work for her father a few years ago, she appears to have no employment history.

6 In May 2006, she appeared before the Magistrates' Court in relation to several charges for offences which occurred over a number of years, including charges of possession of illegal drugs, handling stolen property and failure to answer bail. No conviction was recorded on that occasion and she was placed on a three month community based order. She was not required to undergo any drug counselling or treatment on that occasion.

7 These are the most serious charges which Ms Tran has faced so far. Although a term of immediate imprisonment is one of the possible sentencing dispositions open to the magistrate, the Crown quite properly conceded that, given the nature of the charges and Ms Tran's previous history, it is also possible she would be placed on an intensive corrections order instead of being imprisoned.

8 It is clear that many of the current and previous charges are directly connected with Ms Tran's heroin addiction, although I accept that the shoplifting offences may also be affected by unresolved grief surrounding the death of her boyfriend. It is also clear that unless Ms Tran seriously addresses her heroin addiction, she is likely to continue to engage in criminal activity. She has never previously been required to undergo treatment for her addiction.

9 Her solicitor argues that the most effective way of addressing her addiction, and thereby reducing the ongoing risk which she presents to the community, is by granting her bail on strict conditions which include compulsory participation in the court integrated service program ("CISP"). She has been assessed for the CISP program and has been recommended for intensive case management. If she participates in the program, she will be required to attend for regular drug treatment and support. Program workers will then report monthly on her progress to the Magistrates' Court, who will monitor her progress.

10 Ms Tran has not used drugs for the past six weeks whilst she has been in custody. It is the first time she has been in custody. It is also the first time she has been "clean" in the last five years.

11 If I grant bail on the condition that Ms Tran participate in the CISP program, that will provide a strong incentive for her to continue to remain off drugs, with the prospect that her ultimate sentence may be reduced if she demonstrates through her participation in the program that she has real prospects of rehabilitation. The Crown concedes as a matter of principle that the court may have regard to such matters in considering whether cause has been shown.

12 At the time of the initial application in the Magistrates' Court, the police had legitimate concerns about the fact that Ms Tran proposed to continue living in the rented flat where many of the offences were committed. Since then, Ms Tran's sister has offered to let her live with her family for the time being. Ms Tran's sister, who has a stable and responsible employment history, lives in her own home with her partner and daughter. She is willing, and has made appropriate arrangements, to take time off work to ensure that Ms Tran attends all necessary appointments with doctors, counsellors, police and the courts. Ms Tran is very fortunate that her sister is willing to support her in this way.

13 There is no suggestion that Ms Tran presents a flight risk. The Crown is concerned that she is at risk of failing to answer bail, based on her past history. However, it seems likely that her failure to answer bail on the two previous occasions was due to her drug problems. She is not currently using heroin. It will be a condition of bail that she submit to regular drug testing, to ensure that she does not use again. Her sister has assured the court that she will ensure that Ms Tran will attend all future court appearances. Whilst it cannot be said that there is no risk of failure to answer bail, in the circumstances I am satisfied the risk is not an unacceptable one.

14 Given Ms Tran's addiction problems, it also cannot be said that there is no risk of her re-offending whilst on bail. However, with suitable bail conditions, I am satisfied that the risk is not an unacceptable one.

15 In all the circumstances, I am satisfied that the applicant has shown cause. I believe that any risks of re-offending or not answering bail are not unacceptable and can be managed by the imposition of appropriate bail conditions. I also have no doubt that Ms Tran fully understands that if she breaches any of the terms and conditions of bail, in particular, if she uses drugs or shoplifts again, she is likely to find herself back in prison.

16 In coming to this conclusion, I note that each case depends on its own facts. I am not suggesting that the availability of the CISP program will always make it appropriate to grant bail, however, in the particular circumstances of Ms Tran's case, I think it is appropriate to do so.

17 Ms Tran, I am going to grant you bail. I am going to give you a chance to address your drug problems, but you have got to understand the seriousness of the position you are in. This is the first time you have been in prison. I am sure it has been an unpleasant experience. I do not think that dealing with your drug problems is going to be easy, but if you do not deal with them, you are going to be spending a lot more time in prison in the future. You have your sister's support. Make the most of this opportunity.

[1] As to which, see the discussion by Maxwell P in Re Asmar [2005] VSC 487.