Re Jiang [2021] VSC 148 (13 April 2021)

1 This is an application for bail by Lai Jiang ('the applicant'). He faces drug trafficking and related charges in two separate matters, both of which are the subject of this application:

(a) Where the informant is Senior Constable Troy Reynolds for alleged offending on 22 January 2019 ('the Reynolds charges'):

(i) trafficking in a commercial quantity of a drug of dependence (methylamphetamine);[1]

(ii) trafficking in a drug of dependence (heroin);[2]

(iii) possessing a drug of dependence (two charges) (alprazolam and cannabis);[3]

(iv) dealing with property suspected of being the proceeds of crime;[4] and

(v) possessing a Schedule 4 poison (pregabalin).[5]

(b) Where the informant is Constable Benjamin Owen for alleged offending on 16 April 2020 ('the Owen charges'):

(i) trafficking in a drug of dependence (three charges) (methylamphetamine, heroin and gamma hydroxybutyrate ('GHB'));[6]

(ii) possessing a drug of dependence (four charges) (methylamphetamine, heroin, GHB and cannabis);[7]

(iii) dealing with property suspected of being the proceeds of crime;[8]

(iv) storing an unauthorised explosive;[9] and

(v) committing an indictable offence whilst on bail.[10]

2 In support of the application, affidavits in support of bail sworn by the applicant's solicitor and by the applicant's mother, Chun Ping Zhang, for the purpose of offering a surety, were filed.

3 The respondents oppose the application. Ashleigh Dale Hodge, on behalf of the Director of Public Prosecutions, has filed an affidavit in response to the application.

4 The applicant was arrested and remanded in custody for the Reynolds charges on 22 January 2019.

5 On 8 August 2019, he was committed to stand trial in the County Court.

6 Following an application in that court, on 19 December 2019, the applicant was granted bail subject to a surety of $50,000 and conditions, including twice-weekly urine screens and following the lawful instructions of Amanda Brown of Lamberti Associates in relation to drug treatment and supervision. These conditions are similar to the conditions proposed on the present application with the important distinction that the role of Lamberti Associates was to assist with drug counselling, whereas a residential rehabilitation service has now been arranged.

7 On 9 January 2020, the applicant was arrested in relation to breaches of his bail conditions and remanded in custody. Those breaches involved two urine screens returning positive tests for methylamphetamine and also failing to attend urine analysis in the first week of January 2020. The applicant pleaded guilty to one charge of contravening a conduct condition of bail and, on 16 January 2020, was sentenced in the Heidelberg Magistrates' Court to seven days' imprisonment reckoned as time served.

8 On 16 April 2020, the applicant was arrested and remanded in custody in relation to the Owen charges. He was refused bail in the Heidelberg Magistrates' Court on 21 May 2020. In September 2020, he filed an application for bail in this Court but withdrew the application prior to hearing.

9 The applicant has remained in custody since 16 April 2020.

10 On 5 October 2020, the applicant's bail with respect to the Reynolds charges was revoked in the County Court.

11 The applicant now applies for bail in respect of both matters. The Owen charges are next listed for contested hearing in the Heidelberg Magistrates' Court on 18 October 2021. The Reynolds charges are next listed for mention in the County Court at Melbourne on 17 January 2022. The 17 January 2022 date is an administrative holding date, rather than a substantive hearing date. At this stage the Reynolds charges are contested and no trial date has been fixed.

12 In addition to these matters, the applicant is currently charged on summons with two charges of contravening a conduct condition of bail relating to alleged failures to comply with the lawful instructions of Ms Brown on 17 and 21 January 2020. He was charged for this offending on 20 April 2020 and the matter is next listed for plea in the Heidelberg Magistrates' Court on 18 October 2021.

13 At the time of the alleged offending, the co-accused Mr Nguyen was sought by police in relation to a series of family violence incidents involving his former partner. A warrant for Mr Nguyen's arrest was issued on 19 January 2019.

14 On 22 January 2019, police received information that the co-accused may be at the applicant's home in Epping. Police attended that address at approximately 2:45pm. The applicant led the officers inside his home and up a set of stairs, where the co‑accused was located and then arrested. The applicant appeared to hurry towards a bedroom while the co-accused was being arrested. Police followed the applicant and observed a number of small clear bags containing white powder and crystallised substances scattered on the floor, together with a set of scales and a vacuum sealer.

15 An officer present advised the applicant that he was under arrest, at which point it is alleged that the applicant grabbed a handful of the bags, ran towards an ensuite bathroom and dropped them in the toilet bowl. A struggle then ensued between the applicant and police as the applicant attempted to flush the toilet.

16 The applicant was handcuffed and police performed a pat-down search. Police located a bag containing a crystal substance in the applicant's tracksuit pocket.

17 The applicant and co-accused were taken to the Heidelberg Police Station and a search warrant was executed at the applicant's home. On arrival at the police station, another bag containing a crystal-like substance was located in the applicant's underwear. The applicant was interviewed and exercised his right not to answer questions.

18 It is alleged the items located on the applicant's person and seized from his bedroom under the search warrant included:

(a) 93 grams of methylamphetamine;

(b) 126.9 grams of heroin;

(c) 0.8 grams of cannabis;

(d) tablets containing less than 0.5 grams of alprazolam;

(e) one capsule containing pregabalin; and

(f) $3,352.20 in cash.

19 At approximately 6:30am on 16 April 2020, a further search warrant was executed at the applicant's home. Police located and seized:

(a) 15.4 grams of methylamphetamine;

(b) 1.1 grams of heroin;

(c) 19.1 grams of 1,4 butanediol;

(d) a small amount of cannabis;

(e) a shoe box containing various fireworks; and

(f) $4,010 in cash.

20 A Samsung mobile phone containing a number of messages detailing weights and prices for heroin and methylamphetamine was located in the applicant's bedroom.

21 The applicant was taken to the Mill Park Police Station where he predominantly declined to answer questions, but stated that the liquid seized by police was not GHB.

22 I am required to take into account the guiding principles set out in s 1B(1) of the Bail Act 1977 ('the Act') when applying and interpreting that Act, namely:

(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and

(b) taking account of the presumption of innocence and the right to liberty; and

(c) promoting fairness, transparency and consistency in bail decision making; and

(d) promoting public understanding of bail practices and procedures.

23 As the applicant is charged with a Schedule 1 offence,[11] I must refuse bail unless he can establish exceptional circumstances that justify the grant of bail.[12] In determining whether exceptional circumstances exist, I must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.[13]

24 If satisfied that exceptional circumstances exist, I must then apply the 'unacceptable risk test'.[14] That test requires me to refuse bail if the respondent establishes that there is a risk of the kind set out in s 4E(1)(a) of the Act and that such risk is an unacceptable one.

25 In considering whether any relevant risk is unacceptable, I must again have regard to the 'surrounding circumstances' in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk to an acceptable level.[15]

26 The applicant is 38 years old. He grew up in China and emigrated to Australia at the age of 12. Prior to his remand, he was unemployed and resided with his parents in Epping. He is currently in a relationship with Elizabeth Nguyen, who also lives with the applicant's parents. The pair have an 11-year-old daughter who resides elsewhere.

27 The applicant has a history of polysubstance use. It commenced when he was 14 years old. He most recently engaged in drug counselling sessions with Ms Brown whilst on bail for the Reynolds charges. He is currently prescribed a range of medications in custody, including methadone and mirtazapine antidepressant, as well as metformin for type 2 diabetes and a seretide inhaler for asthma.

28 The applicant's criminal history began in 1997. It displays a long history of offending, particularly in relation to drugs of dependence and non-compliance with court orders. It includes a number of convictions for trafficking in and possessing drugs of dependence, dealing with property suspected of being the proceeds of crime and other dishonesty offences. He has three prior findings of guilt for failing to answer bail (one in 1999 and two in 2003) and one prior conviction for contravening a conduct condition of bail (in 2020).

29 As already noted, in addition to the Reynolds and Owen charges, the applicant is currently charged on summons with two charges of contravening a conduct condition of bail.

30 The applicant relies on a combination of factors to demonstrate the existence of exceptional circumstances justifying the grant of bail. In particular, he relies on the lengthy delay before the matters are likely to finalise and the availability of residential drug rehabilitation.

31 The applicant spent approximately 11 months in custody prior to his initial release on bail for the Reynolds charges, and has spent a further 11 months in custody since his remand for the Owen charges. The Owen charges are listed for contested hearing on 18 October 2021, which is approximately seven months away. No trial date has been fixed for the Reynolds charges, owing to the COVID-19 pandemic delaying trials in the County Court.

32 If bail were refused, as at 18 October 2021, the applicant would have something in the vicinity of 18 months pre-sentence detention available for the Owen charges. Counsel on behalf of the applicant submitted that there would be a real possibility that the applicant's time on remand for those charges would exceed any term of imprisonment imposed on him should he be found guilty of those charges.

33 In respect of the Reynolds charges, Mr Saunders, counsel for the applicant, submitted that should a trial date be fixed at the next listing date of 17 January 2022, the trial would commence at the earliest in July 2022 and would likely proceed in the latter part of that year. Should the applicant be refused bail, it is likely that he will have spent approximately three years in custody before his eventual trial date.

34 Counsel acknowledged that the Reynolds charges are serious and that the applicant faces a significant term of imprisonment if the charges are proven. However, he maintained that delay remains relevant given the significant amount of time that the applicant would have spent on remand prior to his eventual trial date.[16]

Availability of residential drug rehabilitation

35 Counsel acknowledged that the applicant requires intensive treatment to address his drug addiction. If granted bail, it is proposed that the applicant engage in residential drug rehabilitation treatment at 'The Cottage' in Shepparton. That treatment would incorporate an initial detoxification phase, attendance at regular educational and therapeutic workshops, weekly urine screens and development of a case management and mental health plan, potentially leading to a transition to appropriate housing.

36 An assessment report (dated 16 February 2021) completed by addiction counsellor and chief executive officer of The Cottage, Maria Hutchison, advises that the applicant meets the DSM-5 criteria for substance use disorder. In her report, Ms Hutchinson observes that the applicant has not made any serious attempt at recovery in the past, other than episodes of detoxification organised by family members and participation in counselling whilst in custody and during his most recent release on bail. Ms Hutchison opines that the applicant is at 'an early stage of contemplation and readiness towards working to overcome his addiction'. She recommends that he be admitted to The Cottage for at least four months and be referred to Dr Professor Ed Ogden of Goulburn Valley Health for treatment of his addiction and underlying mental health issues.

37 Ms Hutchinson gave evidence on the hearing of the application. She identified two matters which gave her cause for feeling positive about the applicant's prospects. First, a lack of arrogance on the applicant's part about his ability to deal with residential rehabilitation; and, second, her perception that he was genuine in his desire to participate in the program. While giving evidence, Ms Hutchison undertook to notify the informant(s) if the applicant left The Cottage or otherwise failed to abide by the rules of The Cottage.

38 A letter written by Aaron Gilhooley, general manager of The Cottage, dated 17 February 2021, confirms that a bed at the facility will be available for the applicant from 30 March 2021. Mr Gilhooley advises that, should the applicant abscond or return a positive urine screen whilst on bail, staff of The Cottage will report these matters to the informant(s) as soon as practicable. In her evidence on the hearing, Ms Hutchison noted that some 260 individuals have participated in The Cottage's residential rehabilitation program and only two have ever absconded. Ms Hutchison further said that there are currently 17 individuals at The Cottage receiving treatment for substance addiction and 14 of those individuals are on bail.

39 Mr Saunders conceded that the prosecution case against the applicant for both sets of charges is not weak. He maintained that triable issues exist in relation to whether the evidence establishes that the applicant had the requisite intent for the commercial quantity charge to be proven.

40 Counsel noted that the applicant has strong ties to the jurisdiction, having lived in Victoria since the age of 14. He enjoys the support of his parents, who have made an initial payment to The Cottage to secure him a place in the residential rehabilitation program with that service and are prepared to use the equity in their family home for a surety.

41 The applicant's parents are willing to offer a surety of $50,000 by way of equity in their home.

42 The applicant's time in custody has been made more onerous due to the COVID-19 pandemic. Whilst this is a common state of affairs, it is significant.

43 Moreover, in the written material filed with the Court, there is reference made to the applicant being assaulted by another prisoner at the Metropolitan Remand Centre on 16 June 2020 and requiring treatment at St Vincent's Hospital for facial trauma.

44 The applicant cited recent Court of Appeal authority in support of the submission that the question of unacceptable risk must adapt to the circumstances of the case.[17] The applicant drew attention to delay and the availability of residential rehabilitation as particularly pertinent circumstances when assessing risk in this application.

45 The applicant submitted that risk can be reduced to an acceptable level with the imposition of appropriate conditions.

46 Counsel for the respondent did not press heavily against the applicant's contention that exceptional circumstances were made out; however, this point was certainly not conceded. The respondent otherwise opposed the application on the basis that the applicant's criminal history suggests that he is an unacceptable risk of failing to comply with any conditions of bail and engaging in further substance-related offending.

47 Counsel relied on a report prepared by S/C Reynolds exhibited to the affidavit material filed on behalf of the respondent. In that report, S/C Reynolds notes a number of matters relevant to the strength of the case:

(a) The applicant had to be physically restrained to prevent him destroying evidence at the time of his arrest on 22 January 2019;

(b) Drugs of dependence were found on the applicant's person when he was searched; and

(c) Drugs seized under warrant were found in the applicant's bedroom and ensuite.

48 Counsel submitted that, given his history, the applicant will serve in excess of the period of delay that he faces before his matter reaches trial should he be found guilty of the commercial quantity charge.

49 Counsel contended that the availability of a surety was of little consequence as a surety proved ineffective in the past. As is proposed on this application, the applicant's previous grant of bail (revoked on 5 October 2020) was also subject to a $50,000 surety provided by his parents.

50 Counsel for the respondent submitted that the applicant's antecedents reflect an extensive history of substance abuse and non-compliance with court orders. Counsel submitted that the applicant has received both rehabilitative community-based sentences and custodial sentences in the past, neither of which have deterred the applicant from further substance-related offending.

51 Counsel also raised the applicant's non-compliance with his bail conditions within a month of the his release on bail in December 2019 for the Reynolds charges, having returned positive urine screens and failed to attend urinalysis. Counsel also noted the fact that the Owen charges of April 2020 occurred while the applicant was on bail for the Reynolds charges.

52 Further, counsel referred to a text message allegedly discovered on the applicant's phone on 16 April 2020 that suggested the applicant was aware of how to manipulate urinalysis testing so that he could continue to use drugs of dependence without detection. The text message tends to suggest that the applicant says he can only use GHB, rather than heroin or methylamphetamine, because he is being tested. In counsel's submission, this demonstrates a disregard for his bail conditions.

53 Counsel raised concerns regarding the applicant's freedom of movement while at The Cottage and his proposed accommodation thereafter, should he successfully complete the program after the recommended minimum period of four months. In particular, counsel raised concerns that, if the applicant returns to reside with his parents in Epping, he will revert to his former criminal conduct. Further, the applicant's partner is currently residing at that address on bail for offences including trafficking methylamphetamine and heroin, having been arrested after drugs of dependence were located at the address on 11 November 2020.

54 Counsel ultimately submitted that, given the applicant's extensive criminal history and recent inability to comply with strict bail conditions, there are no conditions that could be imposed that would reduce risk to an acceptable level.

55 The first question to be determined is whether or not the applicant has established that there are exceptional circumstances that justify a grant of bail.

56 The strength of the prosecution case, or any perceived weakness in the prosecution case, does not appear to me to be an important part of any argument that exceptional circumstances exist. I am satisfied that the case against the applicant is not a weak one.

57 As counsel for the respondent observed, a surety of $50,000 was in place when the applicant breached conditions of bail and allegedly committed the Owen offending while on bail for the Reynolds charges. I find that the existence of a surety adds some, though not significant, weight to the argument that exceptional circumstances exist.

58 Counsel for the applicant argued that delay and the availability of residential rehabilitation over a period of four months are capable of amounting to exceptional circumstances, having regard to s 3AAA of the Act and with reference to the relevant authorities.[18]

59 It seems common ground between the parties that, were I to refuse bail, the pre‑sentence detention that the applicant would have accrued by the time of his trial would be a period of approximately three years.

60 In my view, significant effort needs to be made to adequately resource the Courts, particularly the County Court, to enable them to properly deal with the current backlog of matters. This applicant, and a large number of others, are in a sense the victims of the delay caused by the COVID-19 pandemic. Whilst the case against the applicant is strong and I accept that a finding of guilt for the commercial quantity trafficking charge may exceed the anticipated time that the applicant would spend in custody prior to his trial, this does not mean that delay is not inordinate. A period of pre-trial custody of three years will demonstrate exceptional circumstances in almost every case.

61 The availability of residential rehabilitation is a significant circumstance in the applicant's favour. The applicant's drug addiction is central to his offending. The applicant has not attempted residential drug rehabilitation treatment before. In the event that residential rehabilitation successfully treats the applicant's addiction, it could, in turn, reduce the chance of further offending. This would have the twin benefit of rehabilitating the applicant and protecting the community from the applicant engaging in future drug-related offending.

62 I find that the lengthy delay in this case and the availability of residential rehabilitation for a period of four months are matters of considerable significance and, in combination, amount to exceptional circumstances.

63 The next matter to be addressed is whether the respondent has established that there is unacceptable risk such that the applicant should not be granted bail. The question is whether or not risk, which clearly exists in this case, can be reduced to an acceptable level with the imposition of appropriate conditions.

64 Whether or not risk is unacceptable has to be considered in the circumstances of the case. The likely delay before this case resolves is a circumstance of some consequence when assessing risk, as is the availability of residential rehabilitation.

65 I harbour serious reservations about the applicant's ability to comply with conditions of bail given his history. However, these concerns are significantly ameliorated by the fact that it is not proposed that the applicant would reside in the community on bail. Should the applicant be granted bail, a condition of his bail would be to reside on a full time basis in residential rehabilitation, receiving treatment for an entrenched drug addiction. Ms Hutchinson has given an undertaking to notify the authorities if the applicant transgresses the rules of The Cottage. I am satisfied the informant(s) would become aware of the applicant failing to engage with treatment at The Cottage promptly.

66 In Robinson v The Queen, the Court of Appeal, in considering an appeal against a refusal of bail in circumstances similar to this case, observed:[19]

The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining in a supervised treatment facility and participating in drug rehabilitation. ...

67 I pause to note that a grant of bail being conditional on an applicant remaining in a residential rehabilitation centre is no longer most unusual. Their Honour's continued:[20]

... Not only does such a condition severely restrict the person's freedom of movement and association but - on the positive side - it means that the pre-trial period can be used constructively to tackle the person's drug addiction. In this case, as in so many others like it, [the applicant's] drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to [the applicant] if he remained in custody.

Having indicated that he would consent to these conditions, [the applicant] had demonstrated in two different - but related - ways that his continued detention was not justified. First, for him to be in the residential program would, of itself, substantially mitigate the risk; and, secondly, the treatment itself would be likely to promote his recovery from addiction and further reduce risk.

68 The Court of Appeal's observations are applicable to this case. I find that the applicant's risk can be reduced to an acceptable level with appropriate conditions and will make an order for bail. The applicant's release on bail will be conditional on him being released from custody directly to The Cottage to commence four months of residential rehabilitation.

69 At the expiration of the applicant's time at The Cottage, the matter will return to this Court, first, to review the applicant's performance in residential rehabilitation and, second, to hear further argument about the applicant's proposed residential arrangements between him leaving The Cottage and his County Court trial commencing. In the event that the applicant breaches his bail conditions during the four months that he is at The Cottage, the breach will be immediately reported to the informant(s). The applicant can be under no misunderstanding that if there is any non-compliance with the directions of staff at The Cottage, his bail will be revoked and he will return to custody.

70 Having considered the evidence in this matter and the parties' submissions, at the conclusion of the hearing I indicated that I was satisfied that exceptional circumstances justifying a grant of bail had been established and, further, was satisfied that any risk that could be mitigated to an acceptable level with appropriate conditions of bail.

71 Accordingly, I granted bail and made the following orders:

(1) The said Lai Jiang ('the applicant') be admitted to bail on 30 March 2021 upon his own undertaking with a surety in the amount of $50,000 by Ms Chun Ping Zhang and with the following conditions:

(a) From 30 March 2021 until the completion of the program, the applicant reside at 'The Cottage' at [REDACTED], Shepparton in the State of Victoria ('place of residence');

(b) The applicant not leave his place of residence unless in the company of a staff member of The Cottage or with their approval;

(c) The applicant not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informants (Constable Benjamin Owens or Senior Constable Troy Reynolds);

(d) The applicant engage in treatment and comply with all lawful directions of staff at The Cottage;

(e) The applicant provide the informant(s) or their nominee with the results of any drug screens undertaken while on bail;

(f) The applicant not use any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);

(g) The applicant not consume alcohol at any time;

(h) The applicant not leave the State of Victoria;

(i) The applicant not leave Australia;

(j) The applicant not attend any points of international departure;

(k) The applicant surrender any current passport or travel document in his possession or control to either informant(s) or their nominee within 24 hours of being released on bail;

(l) The applicant is not to apply for any such passport or travel document or cause, whether directly or indirectly, any other person to do so on his behalf; and

(m) The applicant appear:

(i) At this Court on 16 July 2021 for judicial monitoring and consideration of his future residential arrangements;

(ii) At the Magistrates' Court at Heidelberg on 18 October 2021 at 9:30 a.m. and thereafter as directed by that court; and

(iii) At the County Court at Melbourne on 22 January 2022 and thereafter as directed by that court.

[1] Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[2] Ibid s 71AC.

[3] Ibid s 73(1).

[4] Contrary to s 195 of the Crimes Act 1958 (Vic).

[5] Contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[6] Ibid s 71AC.

[7] Ibid s 71(1).

[8] Contrary to s 195 of the Crimes Act 1958 (Vic).

[9] Contrary to s 54(5) of the Dangerous Goods Act 1985 (Vic).

[10] Contrary to s 30B of the Bail Act 1977 (Vic).

[11] See item 6(b) of Schedule 1 of the Bail Act 1977 (Vic) (trafficking in a commercial quantity of a drug of dependence).

[12] Bail Act 1977 (Vic) s 4AA(1).

[13] Ibid s 4A(3)

[14] Ibid ss 4A(4) and 4D(1)(a).

[15] Ibid s 4E(3).

[16] See Re Ning [2020] VSC 609, [58].

[17] HA (a pseudonym) v The Queen [2021] VSCA 64, [54] (Maxwell P and Kaye JA).

[18] Robinson v The Queen [2015] VSCA 161.

[19] [2015] VSCA 161, [50] (Maxwell P and Redlich JA).

[20] Robinson v The Queen [2015] VSCA 161, [50]-[51] (Maxwell P and Redlich JA).