R v Hoang [2015] ACTSC 195

1. That a surety or sureties, in the total sum of $15,000, be provided.

2. That Van Dam Hoang report to the Officer in Charge of Belconnen Police Station each Monday, Wednesday and Friday between the hours of 5:00 pm and 10:00 pm.

3. That Van Dam Hoang not approach within 100 metres of any point of departure from Australia.

4. That Van Dam Hoang surrender his passport to the Registrar of the Supreme Court.

5 That Van Dam Hoang not leave the ACT except to visit a member of his or his partner's family or his accountant and only after giving not less than two days' prior notice to the Officer in Charge of Belconnen Police Station, such notice to set out:

(b) The name and address of the person he is to visit

CRIMINAL LAW - Practice and Procedure - Bail - Risk of reoffending - Travel outside ACT, subject to conditions

Bail Act 1992 (ACT), s 33(2)

Human Rights Act 2004 (ACT), ss 12, 28

Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168

R v Connors [2012] ACTSC 80; (2012) 268 FLR 91

Wragg v State of New South Wales [1953] HCA 34; (1953) 88 CLR 353

1. On 12 March 2015 the applicant, Van Dan Hoang, was arrested and charged with three counts of trafficking in heroin on 26 February 2015, 5 March 2015 and 12 March 2015. He was also charged with resisting arrest on 12 March 2015. He appeared in court on 13 March 2015 and was remanded in custody.

2. On 31 March 2015, he was granted bail with conditions that he report to Belconnen Police Station each day between the hours of 5:00 pm and 10:00 pm; that he not approach a point of departure from Australia; that he do not depart from the ACT; and that he surrender his passport.

3. On 23 June 2015, he was committed for trial and, under the order made in the Magistrates Court in standard form, bail was to continue. He signed a bail undertaking; however, that undertaking had no conditions on it. It was not necessary, in fact, for him to sign the bail undertaking because s 33(2) of the Bail Act 1992 (ACT) requires that, when bail is continued, the bail originally entered, in this case on 31 March 2015, simply continues.

4. Notwithstanding the incorrect bail undertaking, he continued to try to comply with the conditions that had originally been made. He tried to report to the police station but was turned away because, apparently, the incorrect bail undertaking had not been forwarded to the police.

5. He approached his solicitors and they made an application to vary his bail with the intention of having the original bail conditions reinstated, but on a varied basis.

6. The variations of the bail conditions are two in number. One does not appear to be opposed but the other is opposed. I will consider them both together. The variations are to reduce the reporting to three days a week, Monday, Wednesday and Friday, and to remove the condition that he not depart from the ACT.

7. The application of the variations is a matter that needs to be carefully considered. Bail conditions are imposed for good cause. They are intended to ensure that the reasons why bail might not be granted do not come to pass. Those reasons include the risk that the accused person will not appear in court, that the accused person might commit further offences and that the accused person be subject to any particular disability, or interfere with witnesses or cause difficulties.

8. It is important that bail conditions be appropriate in all the circumstances. Thus, in R v Connors [2012] ACTSC 80; (2012) 268 FLR 91, Higgins CJ pointed to the need for conditions to be no more restrictive than necessary. His Honour referred, at 97; [25], to the words of Dixon CJ in Wragg v State of New South Wales [1953] HCA 34; (1953) 88 CLR 353 at 386 that:

A legislative power, however, with respect to any subject matter contains within itself authority over whatever is incidental to the subject matter of the power and enables the legislature to include ... provisions which can only be justified as ancillary or incidental.

Though it should not restrict the accused more than necessary to obtain the objectives of the grant of power, the power conferred by the legislature on authorised officers or judicial officers must, nevertheless, confer authority to render the condition capable of enforcement. A condition of the breach which is not readily detectable by reasonable means would be nugatory.

Nevertheless, a real question remains whether to justify the intrusion upon the accused for privacy rights, there needs to be some ground for suspicion of breach of the relevant bail condition.

10. His Honour then referred to ss 12 and 28 of the Human Rights Act 2004 (ACT).

11. Thus, in order to determine conditions, one must have regard to the purposes of the granting of bail. I also refer to the decision of the Full Court of the Federal Court of Australia in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 at 184; [56] which makes it clear that suspicion and speculation is not a sufficient basis for a finding about bail. It is necessary to ensure that there is a reasonable basis for the restriction, either by refusing bail or granting a condition.

12. The opposition to the variation is because of the risk of re-offending. It appears that Mr Hoang is a member of a family that has, regrettably, significant involvement in the drug trade. His brother has been sentenced to a term of imprisonment for offences of a similar character to those that Mr Hoang is facing. His uncle has been charged with cultivating a commercial quantity of cannabis in New South Wales.

13. Mr Hoang was, before his arrest, also under surveillance and was the subject of information provided to police by a human resource. That indicated that he sourced drugs in New South Wales. He travelled there regularly, on weekends in particular, but also, it appears, during the week. There was no direct information, however, that he went to New South Wales only for the purpose of sourcing drugs and there appears to be no direct evidence of any transactions actually taking place in New South Wales. Certainly, no offences have been charged that are relating to that. The amounts of drugs involved in Mr Hoang's offending are not small. The last occasion of the charge involved three ounces of heroin said to be worth $16,500.

14. The opposition to bail is based on a concern that, if allowed to travel to New South Wales, Mr Hoang will source drugs there and continue to offend. Against this, it has been pointed out that Mr Hoang and his partner have family in Sydney, including his partner's brother who moved to Australia in the last few months. He and his partner wish to travel to Sydney to see the family, particularly as his partner is pregnant and wishes to enjoy that time with her family. Due to her pregnancy, she wishes Mr Hoang to drive her to Sydney. It is also noted that Mr Hoang has an accountant based in Sydney and, from time to time, needs to sign documents in Sydney.

15. Against the risk of re-offending, it has been submitted to me that there are no allegations that Mr Hoang has breached his bail. That was confirmed; there are no suggestions as to that. Indeed, as indicated earlier, Mr Hoang complied with conditions that, strictly speaking, might be argued not to be continuing to bind him, even though, as a matter of law, it seemed to me that they did so. It was also pointed out that Mr Hoang could source drugs in the ACT or arrange for persons to travel to Sydney and source them for him if he wished to continue in the drug trade.

16. Having considered that matter carefully, it seems to me that, with some strict conditions, that there is no reason why Mr Hoang should not be able to travel to Sydney should he wish to do so, though on a limited basis. Accordingly, it seems to me I should reimpose all of the bail conditions so it is now clear as to what conditions Mr Hoang is subject.

17. Accordingly, I will grant him bail to appear at his trial, on a date to be notified by the Registrar of the Supreme Court, on the following conditions:

1. That a surety or sureties, in the total sum of $15,000, be provided and I note that this sum has already been deposited.

2. That he report to the Officer in Charge of Belconnen Police Station each Monday, Wednesday and Friday between the hours of 5:00 pm and 10:00 pm.

3. That he not approach within 100 metres of any point of departure from Australia.

4. That he surrender his passport to the Registrar of the Supreme Court and I note that is already done.

5 That he not leave the ACT except to visit a member of his or his partner's family or his accountant and only after giving not less than two days' prior notice to the Officer in Charge of Belconnen Police Station, such notice to set out:

(b) The name and address of the person he is to visit.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.