Re Application for Bail by Quoc Danh Pham [2013] VSC 580 (8 October 2013)

2 By reason of the offences with which he is charged, s 4(2) of the Bail Act requires that a court shall refuse bail unless the court is satisfied that exceptional circumstances exist which justify a grant of bail.

3 In summary, the circumstances giving rise to the charges were that on Monday 2 September 2013, in the middle of the morning, police from the Brimbank Divisional Response Unit executed a drug warrant. Prior to the execution of the warrant police had conducted surveillance and had observed two vehicles attend at the address. One vehicle had entered the building and it had then permitted a second vehicle to enter the building. There were two males in each of these vehicles.

4 On arrival to execute the drug warrant, the police identified themselves and requested entry. Police members at the rear door of the factory observed three males attempting to exit the premises. These three males were arrested and that group included the applicant. A fourth male was observed running away to the front of the factory and was subsequently arrested.

5 At the premises the police observed a sophisticated hydroponic set-up in operation with five rooms on the lower level and one room of the upper level. There were 532 cannabis plants being grown with a total weight of 258 kilograms. It is by reason of the fact that the weight of the plants exceeds the limit of 250 kilograms that the applicant has been charged with the cultivation of a large commercial quantity of cannabis. The hydroponic set-up was operating through an electrical bypass permitting the theft of electricity in order to operate the system.

6 When interviewed the applicant stated that this was the first occasion that he had attended at the factory and that he was only there to help his friend deliver drinks which he had purchased. Drinks were found in the vehicle owned by the applicant that he had driven to the factory. The applicant also stated that he had seen plants inside the factory but he did not have time to leave before the police arrived.

7 The owner of the factory identified the applicant as a person who had paid the rent due on the factory on various occasions, although those transactions had not occurred at the factory itself.

9 The issues to be determined today are, firstly, whether the applicant has demonstrated that exceptional circumstances exist such that the making of an order for bail is justified; then, secondly, whether the Crown established that to release the applicant on bail would be an unacceptable risk pursuant to the matters set out in s 4(2)(d) of the Bail Act.

10 It is well established that the hurdle confronting the applicant is a high one but not an impossible one. It is also well established that there is no general definition of the factual circumstances that will constitute exceptional circumstances.

11 In DPP v. Cozzi[1] Coldrey J adopted an earlier statement of Vincent J in Re: The Matter of Application for Bail by John Denis Moloney.[2] His Honour had stated:

A number of decisions which have been handed down by Judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.

12 Coldrey J added that the major factors found to constitute exceptional circumstances have been: firstly, the strength of the Crown case where that may be sensibly assessed; secondly, the question of delay to committal and/or trial or the extent of pre-trial detention; thirdly, principles of parity insofar as they are applicable to a bail application. In R v. Griffey[3] King J noted that it has long been held that it is a combination of circumstances that are of importance and that the combination must be assessed in each individual case. A myriad of other factors can be relevant in establishing exceptional circumstances.

13 In Re Kane[4] Lasry J restated a list of those factors, drawing on the earlier cases to which I have already referred. Those circumstances include -

14 In Re Marijancevic[5] Lasry J added relevantly to this list the further consideration of whether or not a surety in relatively substantial terms is available. The provision of a substantial surety places an applicant for bail in circumstances where another person at risk of significant financial loss takes on the responsibility of ensuring the applicant's attendance at his or her trial. This is a matter of some significance.

15 I will set out the considerations that are of particular relevance to my decision about whether there are exceptional circumstances in this case. The first is that a surety in relatively substantial terms is available. Secondly, the issue of the extent of family support, stable accommodation and/or employment of the applicant is relevant. Thirdly, the risk of interference with witnesses is low. Fourthly, the risk of flight is low. Fifthly, the risk of reoffending is low. Sixthly, the applicant's family situation and, finally, the applicant's personal situation contribute to exceptional circumstances. Commonly, the lack of matters that constitute unacceptable risk as detailed in s 4(2)(d) are often taken into consideration as well.

16 The Crown case against the applicant can, in brief summary, be said to rest on four principal factors. Firstly, the discovery of the applicant in attendance at the factory in the presence of the crop. Secondly, the evidence of flight that is constituted by his attempt to leave the factory via the rear door. Thirdly, the circumstances of his dealing with the landlord of the premises in making payments of the monthly rent. The monthly rent was approximately $2,383 but there is no further explanation of the circumstances in which that payment was made or the source of the funds that were used. The other matter is that there were items that were discovered in the applicant's vehicle.

17 The informant gave evidence that the relevant vehicle was registered in the name of the applicant and within the vehicle were found some traces of cannabis and a slip of paper that was identified as relating to a hydroponic supply business. There were no admissions made by the applicant. The three co-offenders each, at least to some extent, made relevant admissions. None of the co-offenders referred to or implicated the applicant. There was no evidence that the applicant was directly involved in any cultivation activity at the time of his arrest although the crop was an advanced crop. When he was searched, he had an amount of $1,250 in a pocket and some personal items but there was no sign of any physical contact with the crop. The police had only had the factory under surveillance on the day. There was no evidence to suggest that the applicant had previously attended upon the crop. There was no relevant forensic evidence. The applicant was not in possession of any keys or remote control device. It appeared that access to the premises was gained by two of the co-offenders who raised the roller door to permit access to the applicant's car.

18 The search of the applicant's home did not reveal any items of equipment that might be used in trafficking for drugs. There were no signs of extensive wealth. The applicant was not observed to be in possession of substantially expensive personal items such as jewellery and the like.

19 The applicant's counsel did not put his submission in respect of the strength of the Crown case on the basis that the Crown had a weak case, rather, he contended that it was not a compellingly strong Crown case and that the applicant has a defence. It seems to me that that is a fair summary of the situation relating to the strength of the Crown case inasmuch as it can be assessed by me on the information available to me. So, on its own, it could not be said that there are exceptional circumstances in a lack of strength in the Crown case.

20 Turning to the question of delay, it can firstly be noted that it is only approximately one month since the applicant was arrested. I am informed that the date for service of the hand-up brief is 15 October 2013 and that the charges have been listed for committal mention on 26 November 2013 at Melbourne Magistrates' Court. It is difficult to assess the likely delay that the applicant may face in coming on for trial. The applicant suggested that it was unlikely that a trial in the County Court could be heard before the middle of 2015, while the informant suggested that a trial by the start of 2015 was likely. It seems reasonable to proceed on the basis that it is likely to be at least 18 months but probably unlikely to be more than 24 months before the applicant's trial will commence.

21 The applicant's co-offenders are each in custody. I have no information about whether they have sought bail but it does not appear to me, on the basis of the informant's evidence, that there are any relevant questions of parity and there are significant differences between the personal circumstances of the applicant and some or more of the co-offenders.

22 Turning to the personal circumstances of the applicant, he is aged 48 years and is an Australian citizen, having come to this country in 1988 via a refugee camp in Malaysia. He was a machinist by occupation but has not worked in that trade for some time. He was once married and he has a son who is now 16 years of age. He has been separated from his wife for approximately 10 years. He has the exclusive custody of his son, who resided with him, and who attends school at Taylors Lakes where he is currently in Year 11. He will undertake his VCE year in 2014. Significantly, the applicant has no prior convictions.

23 The informant urges me to accept that there is a significant risk of flight. It appears that the informant's concerns are principally based upon the Vietnamese ethnicity of the applicant and there is no evidence of the extent of any contacts between the applicant and persons or relatives, extended family members in Vietnam. There is no evidence of prior occasions of travel by the applicant to Vietnam. The informant points to the attempt on the part of the applicant to flee the premises on the day of execution of the warrant and to the fact that the applicant has a poor financial situation. Nothing has been discovered to suggest that the applicant has hidden resources that would enable him to readily flee the country.

24 Likewise, the informant considers there to be a significant risk that the applicant will reoffend. Accepting that the applicant has no prior convictions, the informant points to the want of financial resources as a fact from which it might be inferred that the applicant will engage in further offending relating to drugs. There is an apparent contradiction in the contention that the applicant is sufficiently resourced to flee but not sufficiently resourced to deter him from further offending. In any event, having regard to the opportunity to impose relevant conditions and to the applicant's lack of prior convictions, I consider that the risk of flight and the risk of reoffending are low.

25 The applicant lives in shared accommodation where he rents a room. He has apparently done so for a number of years. Beyond these circumstances I have little information concerning his accommodation. He lives with his son. He is in receipt of a government benefit of approximately $750 a fortnight and he has produced evidence, by letter dated 6 September 2013, of an offer of employment from a long-standing family friend within that person's supermarket. His duties will include deliveries, shelf stacking, customer assistance and whatever else might be required of him, to work five days a week Tuesday to Saturday from 9 am to 5 pm. The employment offer, I am informed, remains open to commence immediately should Mr Pham be admitted to bail. The offer was made prior to the hearing before the magistrate and the informant is aware of the Asian grocery and that it is within the block of shops near to the Keilor Downs Police Station.

26 The applicant suffers from poor health in that he has diabetes and hypertension and has also had heart disease, having had a stent inserted in 2009. He is on medication which has been reported to the court in a letter from his local GP. I was informed that he has not received his medication for the last two weeks because he has been held in the cells at Geelong rather than in the Metropolitan Remand Centre. Nevertheless, it is well established that the prison system is capable of looking after the medical and pharmacological needs of inmates suffering ill health.

27 Taken in isolation, I do not consider that any of these factors establish exceptional circumstances. However, as I have stated, the various matters must be assessed in combination and, in particular, having regard to my view that the applicant is a low flight risk and a low reoffending risk and that he is the guardian and sole custodian of his 16 year old son who is to do his VCE next year, in combination with the circumstances of his poor health, I am satisfied in these circumstances that the applicant has demonstrated that exceptional circumstances exist. I am not discounting the Crown case against the applicant but, nevertheless, bearing in mind all of those matters in combination with, I should add, the question of delay, I am satisfied that exceptional circumstances are present.

28 It seems to me that a delay in the vicinity of 18 months can be regarded as ordinary circumstances but where there is a probability that that is the most optimistic assessment of the likely delay, and in combination with the other factors, exceptional circumstances are established.

29 Turning then to the question of whether the Crown has established that to release the applicant on bail would be an unacceptable risk, I am not satisfied that releasing the applicant on bail would be an unacceptable risk for the following reasons. In the first place, I will require as a condition of admitting the applicant to bail that he provide a surety in the amount of $150,000 and I have been informed by his counsel that two persons are present in court and are prepared to put up their premises, which are mortgaged but with an equity of at least $200,000, as the applicant's surety.

30 For the reasons that I have already stated, I do not consider that there is an unacceptable risk that the applicant will commit further offences whilst on bail or that he would endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice. However, I would propose a number of conditions be applied to his bail to the effect that he continue to reside at 4 Coughlan Street, Deer Park. I will impose an order that he not move from that address without notifying the informant and receiving the leave of the court; that he report daily to the officer-in-charge of the police station at Sunshine. I will also require that he surrender any passports that he holds; that he not apply for any passports; that he not attend any point of international departure during the period of bail; that he remain in the area of metropolitan Melbourne and not travel interstate without further order of the court; and the usual conditions that he attend at mentions, committals, at trial as notified by the Director of Public Prosecutions. I will also include a condition that he not contact witnesses, except for the informant or his nominee.

[1] [2005] VSC 195; (2005) 12 VR 211.

[3] [2006] VSC 86.

[4] [2010] VSC 8 (22 January 2010).

[5] [2010] VSC 122 (8 April 2010).