R v Phung [2001] VSCA 81

Court of Appeal (Vic)|2001-05-18|Before: BATT and CHERNOV, JJ.A.

The applicant has been in custody at all times since his arrest on 9 January 1997. We have been informed that his total effective sentence expires on 26 December 2001. The applicant was eligible for parole from the time of sentencing on 7 June 2000. An application by him for parole was refused by the Parole Board on 22 February 2001. The Department of Immigration is considering cancelling his permanent visa, but a decision by the Minister is not likely before July 2001.

The applicant has well over 40 prior convictions from 15 court appearances from 1986 to 1995. Many of them are for use or possession of heroin and other drugs, many others are for offences of dishonesty, and yet others are for what might be called street offences. However, some are of more immediate significance. First, there are three convictions for causing serious injury intentionally, one for armed robbery and three for robbery, all sustained on 7 June 1989, and one each for assault with a weapon and causing injury intentionally or recklessly, sustained in July 1995. Then there is one conviction for trafficking in heroin sustained at the last-mentioned date. Finally, and most importantly, there are four convictions for failing to appear in accordance with an undertaking of bail, three sustained in March 1986 and one in December 1994.

It is said in the supporting affidavit that there is a serious risk that the applicant's appeal (as it may for convenience sometimes be called) might be rendered futile even if he is successful, for he would have completed a significant part, if not the whole, of his sentence by the time judgment on it is delivered. Even if the whole of the sentence will have been served by that time, the statement cannot be accepted in that bald form in that it will by no means be futile to have had a conviction for such a serious offence as trafficking in heroin removed from the applicant's record, albeit that the applicant might still face a further trial. Rather, the submission must be, and indeed was in oral argument, that the applicant will through the Court's own difficulties in listing have served an unacceptable portion of his sentence, if not the whole of it, before his appeal has been determined. His right to apply for leave to appeal will, Mr Perkins said, be thwarted.

It is well established that in order to obtain bail pending the hearing of an appeal, an applicant must show very exceptional circumstances. Where the sentencing disposition has been by way of imprisonment with a non-parole period, it is the service of an unexceptional portion of the head sentence, not the non-parole period, which relevantly is the factor falling for consideration, though it is only one of the factors: Re Jackson[3] and Re Pennant[4].

To determine whether the applicant has made out very exceptional circumstances to justify release on bail after conviction and pending appeal, it is necessary to consider all the circumstances. Had the applicant applied for bail within a few months after he was sentenced on 7 June 2000, and assuming that it was then expected that his application for leave to appeal would not be heard until about April this year, and all the more so if not until September or October this year, he would have been able to rely as an important matter upon the likelihood that he would have served a very substantial portion of the sentence before his application for leave to appeal was determined. But, for whatever reason, he did not apply until 8 May 2001, 11 months after service, and seven months or so before completion of the full sentence. (We say nothing about the reason or reasons for the lateness of the application.) A principal purpose for which bail is granted pending appeal is to forestall an injustice to the applicant arising from the service of an unacceptable portion of the sentence; but, with the effluxion of time which has occurred here, that purpose is, in large measure, frustrated or thwarted: Re Crawley[5]. So the effect of the lateness of the likely date of hearing is here of little weight in favour of the applicant.

Virtually no other material, particularly material relating to the likely environment in which the applicant would reside, was put before the Court on his behalf, but there are other aspects of the argument this morning to which we must refer. Mr Perkins cited Chew v. R.[6] a decision of McHugh J, and Chew v. R. [No. 2][7] In our view, the latter case is clearly distinguishable on the facts. Moreover, in deciding it, Toohey J recognised, we think, that all considerations had to be taken into account The case before McHugh J, where bail was refused, is closer to the present case, though by no means identical with it. During argument both counsel referred to the prospects of the appeal. This Court cannot investigate the prospects in detail and counsel did not seek to do so. We accept that the first ground of appeal at least is not frivolous, but the important point is that, as Mr Perkins acknowledged, if it should succeed, there would, subject to the Court of Appeal's discretion to direct otherwise, be a further trial, for it would still be open for the Crown to contend for the admission in the new trial judge's discretion of the evidence impugned by ground one.

So much for any considerations supporting the application. Other circumstances, however, are quite against the applicant. The offence of which he has been convicted, presumptively correctly and not merely provisionally[8] is a very serious one. Further, his prior convictions for trafficking and offences of violence raise the possibility - we put it no higher - of the commission of like offences if he were released on bail. In other words, there is an unacceptable risk that the applicant if released on bail would commit an offence or endanger the safety or welfare of members of the public. More importantly, the four prior convictions for failing to appear in accordance with an undertaking of bail, coupled with the possibility of cancellation of his permanent visa, satisfy us that there is an unacceptable risk that the applicant if released on bail would fail to surrender himself into custody in answer to his bail. In this regard we note that the Crown opposed the application. Finally, on an application such as this, in contradistinction, for instance, to a trial, we think that we can take note of the fact that the Parole Board apparently considered the applicant, at least at the time of its decision, not suitable for release under supervision.

Particularly bearing in mind the adverse circumstances enumerated, the Court is of the view that the requisite very exceptional circumstances have not been established and that the application must in its discretion be dismissed.

The formal order of the Court is that the application for bail by notice filed on 8 May 2001 is dismissed.

[5] Unreported, Court of Appeal, 5 August 1998 at pp.4 and 5.

[8] Chamberlain v. R. [No.1] [1983] HCA 13; (1983) 153 C.L.R. 514 at 519.

At a glance