R v Nguyen [2003] VSC 508

11. Goddard was alleged to be engaged in the supply of multiple 350 gram blocks of heroin for between 105,000 and $115,000 each. Following the execution of a number of search warrants by the police on 30 August 2003 the premises of the various co-accused were examined, including that of the applicant. On his premises the police located a small quantity of substance together with aluminium foil and a set of scales with white powder residue on them.

In a record of interview the applicant admitted to throwing a quantity of heroin located at his premises at the time out of the window and to being a heroin user.

15. Senior Detective Bramich has stated her belief that Goddard was the ringleader of the group selling heroin, but that the applicant was further down the chain. His role was said to be that of obtaining heroin from others higher up the chain and driving the supplier to numerous locations in order to meet customers and sell heroin to them.

18. In a record of interview the applicant has made some admissions to the police. It is alleged also that the applicant made certain admissions as to his involvement in the course of the telephone interceptions recorded by the police. Three of the co-accused of the applicant have applied for and been granted bail. Importantly, for present purposes the apparent ringleader, Beau Goddard, and two of the other more significant participants have not applied for bail.

21. There is no issue that a mention date will not occur until late April 2004 in relation to the applicant. Further, there is no issue that the trial date of the applicant is unlikely to occur until the second half of 2005 at the earliest and, possibly, later.

24. The Crown opposes bail. It is conceded that whilst there will be a delay so far as the applicant is concerned, it is only one factor to be considered in being satisfied as to exceptional circumstances. The Crown, in the course of submissions made by Mr Cosgriff, has placed particular emphasis on the role of the applicant in the whole trafficking ring investigated by the police and emphasised that the applicant, effectively, played the role of a broker in the various subject transactions.

27. In addition, the Crown has focused upon the magnitude of the transactions in which the applicant was involved and the amount of money that was paid into and withdrawn from his credit card account so far as the police have been able to ascertain thus far. So far as parity between co-accused is concerned the Crown sought to distinguish the applicant's position from the other major players because of prior convictions of the applicant.

30. I turn to the history and personal circumstances of the applicant. He has prior convictions dating back to early 1998 when he was charged and received a good behaviour bond for trafficking heroin. In total, he now has four prior convictions for trafficking and two prior convictions for failing to answer bail, or so it is alleged.

33. However, it was conceded by the Crown that one of the failures to appear did not relate to significant charges. Further, it was submitted by Mr Dowsley who appeared for the applicant that his client acknowledged that he failed to appear on one occasion, but that instance was because of a mistaken belief that the relevant charge was a summons and that there was no obligation on him to attend that occasion.

36. It was further submitted by Mr Dowsley that he was unable to find an indication, or evidence, that his client had failed to attend on a second occasion. The Crown has indicated through Mr Cosgriff that it is unable to challenge the instructions of Mr Dowsley and did not purport to do so. I treat the applicant as having failed to answer bail on one occasion and accept his explanation for that breach.

39. The applicant resides with his girlfriend in Footscray. It is apparent from the material before me that she has played an important part in his life in recent times and, indeed, it was said that she was the driving force behind this application. It would appear from the evidence before me that she has had a stabilising effect on the applicant and his condition as it applied previously.

42. The applicant has been unemployed for a number of years. His girl-friend to whom I have just referred has not long completed her secondary education to VCE Level.

45. I was informed that the applicant had been a user of drugs, but since being in custody he has not taken drugs. Significantly, I was informed that the applicant would be prepared as a condition of bail to submit to the Bail Advocacy Program operating out of the Melbourne Magistrates' Court.

48. In the course of submissions I was informed that the program provided for assessment by way of ongoing appointments on a fortnightly basis. As a result of matters which were adverted to in the course of the first return of this matter before me I adjourned to give some consideration to the submissions. Subsequently, I was satisfied that before I could consider the matter any further I would need to hear evidence about the Bail Advocacy Program itself.

51. As a result, the matter was further adjourned and this morning evidence was given by David Johnson, Bail Services Officer of the Bail Advocacy Program. Mr Johnson described the purpose of the program, essentially, being one of providing support and increasing prospects of rehabilitation of persons on bail. He was informed that the applicant if he was to submit to the program may be on bail for some time up to a period of two years. Mr Johnson indicated that this would not create any difficulty from his perspective and, indeed, in his experience there were persons who were on bail subject to charges to be heard in due course in the County Court who had been on bail for many months.

54. Mr Johnson gave evidence describing the program and it would appear in many respects to be quite onerous so far as a participant is concerned. The burden upon a participant includes in this case one of submitting to a curfew. Mr Johnson indicated that he would require Mr Nguyen, the applicant, to submit to a curfew between 11.00 p.m. and 6.00 a.m. and that he would regard that as part and parcel of their requirement of the applicant to submit and accord with the program. There were other descriptions which are set out in the relevant exhibit.

57. Having given consideration at length to the evidence of Mr Johnson, it appears that it is a program that would be of assistance to the applicant and would facilitate his compliance with any condition that might be attached to bail if I was minded to grant it.

60. In summary, it was submitted on behalf of the applicant that exceptional circumstances were made out because of his personal position, his preparedness to submit to the program available through the Magistrates' Court, and the substantial time in custody that the applicant faced if bail was not granted.

63. I was also informed that the applicant would submit to a condition to participate in the Bail Advocacy Program and to bide by the directions that might be imposed by Mr Johnson or his nominee.

66. In addition I was informed by Mr Dowsley that the applicant is unable to proffer a surety but if required the matter could be pursued further. That indication was given on the first occasion. This morning I was informed by Mr Dowsley that his client was not in a position to proffer surety but there was no evidence before me as to his position.

69. The present case is in some respects unusual in that it involves a 22 year old man involved in a permanent relationship who has been involved in serious offences of trafficking heroin but has indicated his preparedness to do something about his condition.

72. It seems to me undesirable to retain a person of the age of the applicant in custody for a period that could prove to be as long as two years before trial. Such circumstance may deprive an applicant of opportunities for rehabilitation and personal betterment that could ultimately be put before a court on sentence if appropriate and necessary. However, it seems to me that pivotal to any granting of bail of the applicant would require his compliance and participation with the Bail Advocacy Program.

75. Having heard the submissions by Mr Dowsley and also the evidence this morning of Mr Johnson, I am satisfied that it is an appropriate matter that could form a condition to be attached to bail which I am disposed to grant.

78. There is one other important aspect of this application, and that is the question of the surety. On the evidence before me I am not satisfied that the applicant has made out his incapacity to provide a surety. Mr Cosgriff referred to the surety that had been imposed with respect to two of the co-accused of the applicant. In one case a surety of $80,000 was required and provided. In the other case a surety of $50,000 was provided.

81. It seems to me, given the gravity of the offences that are involved in this matter, it is appropriate that a surety be imposed and I would not be disposed at this point to relieve the applicant from that requirement unless and until evidence was put before the court to that effect. It seems to me on the basis of the matter as it stands before me that it is appropriate to impose a surety of $50,000 and I will attach that as a condition of bail.

84. Turning then to the conditions that are to be attached, my having indicated my preparedness to grant bail in this matter, it would be, on the following bases:

87. I would order that the applicant be granted bail on his own undertaking with one surety in the sum of $50,000, and the requirement for his appearance at the committal mention and I would impose the following conditions:

(1) The applicant reside at 7/132 Rupert Street, Footscray;

(2) The applicant report daily to the officer in charge of the police station at Footscray or his or her nominee, between the hours of 6 a.m. and 9 p.m.;

(3) The applicant give 24 hours notice to the informant or her nominee of any proposed change of address;

(4) The applicant not contact, directly or indirectly, any witness for the Crown except the informant or her nominee;

(5) The applicant surrender any passports which he may hold and not apply for another passport or a new passport;

(6) The applicant not attend any point of international departure during the period of bail;

(7) The applicant not contact any co-accused in relation to this matter with the exception of Lang Tee Dang, Hoa Van Nguyen and Hung Minh Nguyen;

(8) The applicant not leave the State of Victoria during the period of bail;

(9) The applicant participate in the Bail Advocacy Program operated at the Melbourne Magistrates' Court and abide by all lawful directions of Mr David Johnson, Bail Services Officer of the said program or his nominee;

(10) Mr David Johnson of the Bail Advocacy Program notify the informant, or her nominee, forthwith, of any non-compliance by the applicant with the lawful directions given by him or his nominee to the applicant as described in Condition 9.

93. It will be necessary for Mr Johnson to proffer the appropriate undertakings to the Court.