Re K M Nguyen [2019] VSC 698 (17 October 2019)

• trafficking a drug of dependence (methylamphetamine and heroin) in not less than a large commercial quantity (two counts);

• possessing a traffickable quantity of unregistered firearms;

• possessing cartridge ammunition without a firearms licence or permit;

• possessing a prohibited weapon (knuckledusters and 'ninja' throwing stars) without exemption or approval;

• possessing a drug of dependence (alprazolam); and

• committing an indictable offence whilst on bail (trafficking in a drug of dependence (methylamphetamine) in a large commercial quantity).

2 Since that date he has been in custody. On 18 September 2019, the applicant was refused bail in the Magistrates' Court. The applicant applies for bail in this Court.

3 As the applicant has been accused of Schedule 1[1] offences, namely, trafficking in a drug of dependence in not less than a large commercial quantity (charge 1 methylamphetamine and charge 2 heroin),[2] the Court must, under s 4A(1A) of the Bail Act 1977 (Vic) ('Bail Act'), refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.[3]

4 In considering whether exceptional circumstances exist the Court must take into account the surrounding circumstances.[4] Section 3AAA requires the Court to take into account all the circumstances that are relevant to a matter, including but not limited to:

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused:

(ii) was subject to a summons to answer a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f) the accused's personal circumstances, associations, home environment and background;

(g) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i) the availability of treatment and bail support services;

(j) the length of time the accused is likely to spend in custody if bail is refused; and

(k) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged.

5 If the Court is satisfied that exceptional circumstances exist to justify the grant of bail, the Court must apply the unacceptable risk test. If the Court is satisfied that:

(a) there is a risk that the accused would, if released on bail:

(i) endanger the safety or welfare of any person; or

(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv) fail to surrender into custody in accordance with the conditions of bail; and

6 The respondent bears the burden of satisfying the Court as to the existence of such a risk and that the risk is unacceptable.[6]

7 It is alleged that the applicant was a participant in an organised crime syndicate operating a drug trafficking business. The business was run with multiple phone holders who each took turns holding a 'customer phone'. Customers would contact the 'phone holder' and place orders for various drugs of dependence. The syndicate supplied methylamphetamine (ice), heroin and cocaine, but mainly methylamphetamine, ranging in amounts from one gram to one kilogram per transaction. Customers regularly purchased large amounts of drugs at a time. Over 200 customers were identified during the course of the police operation which commenced in September 2018.

8 Typically, once a customer placed an order, the phone holder would call a delivery driver who would be tasked with the preparation and delivery of the ordered amount of drugs. Orders were prepared for delivery by the delivery driver at one of four safe houses and then delivered by the delivery driver. The phone holders and delivery drivers would conduct a start of shift and end of shift reconciliation of drugs and cash, and keep detailed handwritten ledgers of the amount of drugs being sold and profits from sales.

9 On an almost daily basis, the phone holders would meet to exchange the 'customer phone' and the handwritten ledgers to the syndicate member who was next 'on shift' to be the phone holder and facilitate deals. From November 2018 until April 2019, investigators obtained dozens of these phone and ledger handovers using closed circuit television (CCTV) surveillance. From 31 November 2018 until 22 April 2019, there were over 29,000 calls and text messages related to the drug trafficking. Since the beginning of the operation, investigators estimate the syndicate to have trafficked over 50 kilograms of methylamphetamine.

10 As to the specific involvement of the applicant in the drug trafficking business, it is alleged that between 29 November 2018 and 22 April 2019, the applicant was regularly employed as a phone holder. The applicant's tasks included holding a customer phone which customers would call to place orders for various drugs of dependence, mainly methylamphetamine, heroin and cocaine. Customers would request an amount of drugs and negotiate the price with the applicant. On many occasions, customers would nominate an amount of cash they had available and the applicant would calculate how much of the relevant drug that would purchase. Once an amount had been agreed upon, the applicant would call a syndicate delivery driver and task the driver with packaging the ordered amount of drugs and nominate a meeting place for the customer or instruct the delivery driver to deliver it directly to the customer's home address. The applicant would regularly liaise with the customer and delivery driver to facilitate deals. Once the transaction had occurred, the delivery driver would call the applicant and advise him of the quantity of drugs required and at what price. The applicant would write this information into a handwritten sales ledger in an A4 sized black, lined notebook.

11 The business operated between midday and 2.00am daily. At the conclusion of the shift, the applicant would call the delivery driver and utilise the handwritten sales ledger to balance out the quantity of drugs which were dealt for that day and how much were available for sale the following day. If supply was running low, the applicant would assist in organising more drugs from suppliers. It is alleged that on many occasions the applicant called customers and advised them that a driver would be in their area shortly, and that he sent bulk text messages to customers advising them when the syndicate had new drugs for sale and the prices for various amounts. The applicant worked two to three days per week over the course of the investigation and facilitated drug deals in quantities ranging from half a gram to 1 kilogram at a time. On average, the applicant trafficked between half a kilogram and 1.5 kilograms of methylamphetamine per shift.

12 It is alleged that surveillance cameras within the DHHS commission flats at Collingwood and Richmond have, on numerous occasions, captured the applicant handling and receiving the customer mobile phone and sales ledger. The applicant's partner has also been captured on CCTV during phone and ledger handovers with the applicant and on her own.

13 On 25 January 2019, a search warrant was executed on a vehicle accessed by syndicate members parked in an undercover car-park at Boundary Road, Sunshine. As a result, six handguns, one assault rifle, 2.1 kilograms of heroin, 1 kilogram of methylamphetamine, two mechanical pill presses, cocaine, pseudoephedrine, 20 machetes and scales were found within the boot of the vehicle. It is alleged that the applicant's fingerprints have been found on the scales. DNA analysis is pending.

14 On 22 April 2019, a search warrant was executed at the applicant's home in Richmond which located, among other things, a Rolex watch valued at $14,800, a 24 carat gold chain valued at approximately $30,000, $6,410 in cash, a knuckle duster, two ninja throwing stars and alprazolam (Xanax) tablets. A Commonwealth Bank account in the applicant's name was discovered with a credit balance of $132,497.

15 On the basis of telephone intercepts obtained from the customer phones, it will be alleged that over the course of the investigation whilst the applicant was holding the phone, he facilitated the sale of more than 21 kilograms of methylamphetamine with an estimated street value of more than $4 million.

16 The applicant relies on affidavits sworn by his solicitor, Michael Kelly, on 1 October 2019 and 14 October 2019 respectively in support of his application, together with evidence given to the Court by a senior drug counsellor and representative of Habitat Therapeutic Private Hospital ('Habitat'), Mr Matthew Young, and a senior clinician from Lamberti Associates Rehabilitation Consultants, Ms Amanda Brown:

(a) The applicant is 27 years of age. Prior to his arrest, he was residing with his mother and brother at their family home in Richmond. The applicant finished high school at Hawthorn Secondary College and commenced studying banking and finance at Victoria University, however failed to complete the first year of the course, despite repeating the year on two occasions. The applicant has worked at Woolworths in Abbotsford, beginning at age 18 in grocery and produce, and, by age 21, was a manager of the grocery section. He continued working at Woolworths until approximately age 25. Whilst he was working at Woolworths, he completed a pre-apprenticeship course in plumbing, however, due to not having a driver's licence, was unable to secure an apprenticeship.

(b) The applicant has a criminal history, including prior convictions. In 2017, he received a 15 month community correction order. At the time of the alleged offending, he was on bail for charges that on 14 January 2018, he did commit an affray, recklessly cause serious injury, recklessly cause injury, unlawful assault by kicking and unlawful assault in the company of others. The applicant has been charged on summons for failure to comply with the conditions of the community correction order.

17 In his affidavit, Mr Kelly properly concedes that:

(a) the alleged offending is serious in nature and is a serious example of the alleged offence of large commercial drug trafficking;

(b) it appears that the prosecution case is strong; and

(c) the applicant, at the time of the alleged offending, was on bail for affray, which is listed for a plea of guilty to affray and intentionally causing injury on 26 November 2019 at Melbourne Magistrates' Court.

(a) the applicant has a limited criminal history with no prior convictions for breaching bail conditions;

(b) it is the Crown case that the applicant, at the time of the alleged offending, had a cocaine addiction;

(c) the applicant has the support of his long-term partner and her family;

(d) the applicant's partner's family are proposing to use their family home as surety should the applicant be granted bail and would support him financially in relation to the cost of inpatient rehabilitation;

(e) the applicant has available to him at least 90 days for inpatient drug and alcohol rehabilitation at Habitat in combination with the ongoing counselling, support and supervision of Amanda Brown, an experienced counsellor with high level specialisation in treatment and recovery from drug and alcohol addiction;

(f) Ms Brown has assessed the applicant as suitable for treatment of substance use disorder;

(g) if the applicant is granted bail, he would enter into residential rehabilitation at Habitat in Geelong, followed by long-term counselling, monitoring and education with Ms Brown, who would remain engaged in a position of clinical oversight while the applicant is in residential treatment and engaged in an outpatient setting upon completion of his residential treatment. The applicant has been assessed as well suited for inpatient drug and alcohol treatment by Jim Tatlock, a director of Habitat;

(h) the applicant has been assessed by Luke Armstrong, psychologist, as a suitable candidate for specialist psychological therapy to address chronic personality disturbance and childhood trauma, together with his drug addiction, which has involved severe polysubstance abuse;

(i) if bail is refused, the applicant is not likely to get a trial date within the next 24 months and would likely spend in excess of two years on remand; and

(j) if the applicant is found guilty of the main offence, he is likely to receive a significant term of imprisonment.

19 On the issues of unacceptable risk of offending, Mr Kelly deposes that the applicant will submit that any risk of the applicant re-offending can be made acceptable with the imposition of strict conditions in combination with the proposal that he be released on bail to the inpatient facility with the imposition of a significant surety.

20 The respondent opposes bail, relying on an affidavit of Vanessa Anne Mellios, sworn 10 October 2019. Ms Mellios is a solicitor employed with the respondent and has the carriage of the matter. Ms Mellios deposes that the contents of the affidavit[7] relied on by the applicant is largely not in dispute, noting that the affidavit captures all relevant information in relation to the charges for which the applicant is currently on bail and all relevant information relating to the charge for which the applicant is currently on summons. Ms Mellios confirms that the criminal history exhibited to the applicant's affidavit in support is current and accurate.

21 The respondent opposes the application on the basis that the applicant has not demonstrated the existence of exceptional circumstances for a grant of bail.

22 Additionally, the respondent submits that there is an unacceptable risk of the applicant committing offences whilst on bail. In this regard, the respondent submits that the applicant has previously disregarded court orders as follows:

(a) The current offences are alleged to have been committed whilst on bail for the affray, recklessly causing injury and unlawful assault matters.[8]

(b) On 15 March 2017 at the Melbourne Magistrates' Court, the applicant was convicted of possessing cocaine and a 15 month community correction order with 100 unpaid community work hours, supervision, assessment and treatment conditions was imposed. The affray matters were committed on 14 January 2018 during the operational period of the above community correction order.

(c) Throughout the investigation for the drug trafficking matters , the applicant was detected by police surveillance breaching his bail conditions by attending the Melbourne CBD.

(d) The applicant was detected by police as being involved in drug trafficking activities whilst the applicant was subject to the community correction order imposed on 15 March 2017 for possessing cocaine.

(e) The applicant has a prior conviction for breaching a community correction order:

(i) on 8 March 2012 the applicant was sentenced at the Melbourne County Court to an 18 month community correction order with 100 unpaid community work hours, and ordered to undergo programs; and

(ii) on 1 March 2013 at the Melbourne County Court, the applicant was dealt with for breaching the community correction order. The order was confirmed to 7 September 2013. The breaching offence was the offence of possession of a controlled weapon. The applicant was convicted of this charge on 3 July 2013 and sentenced to a community corrections order with 50 unpaid community work hours, which he satisfactorily completed.[9]

(f) The applicant has been charged on summons in respect of the breach of the community correction order for:

(i) a failure to perform scheduled community work on 4 April 2017, 25 April 2017 and 8 August 2017;

(ii) a failure to be supervised, monitored and managed as directed on 4 September 2017; and

23 On 8 October 2019, inquiries made with Azara Harris, a case manager at Community Correction Services, revealed that the applicant:

(a) completed all of the conditions of the 15 March 2017 order as required;

(b) attended appointments regularly until April 2018 when he stopped attending appointments;

(c) completed drug and alcohol counselling sessions;

(d) provided clean drug screens on 28 February 2018 and 14 March 2018; and

(e) has been breached on the basis of further offending.

24 The respondent submits that the imposition of the proposed bail conditions would not alleviate the risks asserted by the respondent.

(a) $250,000 is a significant surety, having regard to the nature of the allegations; and

(b) the proposed residential arrangement at Habitat is suitable, given that it is not a secure facility.

26 Before considering the matters I must take into account under s 3AAA of the Act, it is convenient to consider the observations of Kaye J in DPP v Muhaidat,[10] recently cited in Re Recker by Beale J[11] and in Re Sipser by Beach JA[12] on the question of exceptional circumstances:

Effectively the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[13]

27 Counsel for the applicant submitted, and I accept, that on its own, unreasonable or inordinate delay can, in an appropriate case, constitute exceptional circumstances. Clearly, delay can, in combination with other considerations, none of which by themselves are exceptional, constitute exceptional circumstances.[14]

28 The applicant has been in custody since his arrest on 22 April 2019. Service of the hand up brief was to be on 19 August 2019 but was extended to 19 December 2019. A committal mention has been listed for 3 April 2020. It is anticipated the committal hearing would occur approximately six months later with a trial date at best in early 2021, so that the delay between arrest and trial would be a minimum of 24 months.

29 It was forcefully urged by counsel for the applicant that this delay by itself amounts to exceptional circumstances in this case; alternatively, in combination with other relevant factors.

30 Such a delay in one case may be inordinate or unreasonable whilst the same delay in another case may not. Here, the delay is a function of the sheer number of transactions and the scale of the business enterprise of drug trafficking. The material discloses that there are approximately 29000 text messages, extensive telephone intercepts and surveillance footage. There will also be forensic evidence.

31 Considering the vast scale of material which will necessarily have to be considered in order for the prosecution to prepare its case, noting that there are allegedly 11 syndicate members, the delay does not, by itself, constitute an exceptional circumstance.

32 A key surrounding circumstance is the strength of the prosecution case. Counsel for the applicant acknowledges that the prosecution case appears to be strong but emphasised that it was only one matter to be taken into account. Counsel for the applicant submitted that the court is not to adjudicate, and must have regard to the guiding principles set out in s 1(B) of the Bail Act, in particular, the importance of the presumption of innocence and the right to liberty, and whether the applicant is likely to answer his bail. This is undoubtedly so.

33 Nevertheless, this does not detract from the fact that, on the material, the prosecution case appears to be strong or very strong. As such, it has significant weight in my consideration of the application. Further, the material suggests a sophisticated, systematic business enterprise involving the trafficking of large amounts of prohibited drugs, professionally-operated, with the applicant apparently a key member, arranging not only sales transactions but ordering significant quantities of drugs from suppliers. It is unarguably a serious example of an offence of this type. If the applicant is found guilty of the trafficking charges, he is likely to be sentenced to a lengthy period of imprisonment.

34 Evidence was adduced on behalf of the applicant from a representative of Habitat, Mr Matthew Young, who gave evidence as to the nature of the 90 day program the applicant would undertake, including group therapy and counselling.

35 Although the Habitat facility is not a secure facility, there is CCTV monitoring, 24-hour staffing, screening for substance abuse on a regular basis. Whilst residents could ring anyone, telephone contacts would be monitored. Mr Young undertook that any breach of the Habitat program or failure to follow reasonable directions would be a matter which would be notified to the informant.

36 Evidence was also adduced from Ms Amanda Brown of Lamberti and Associates. Ms Brown specialises in the treatment and recovery from drug and alcohol addiction. Ms Brown supported the appropriateness of the suggested program for rehabilitation of the applicant at Habitat which she would oversee and would follow up by counselling, monitoring and an education program including supervised drug screening. Ms Brown undertook to notify the informant of any breaches which took place under her watch.

37 The Court is grateful to Mr Young and Ms Brown for their attendance to assist the court in respect of this matter. I also take into account the report of Mr Luke Armstrong, psychologist.

38 Counsel for the applicant submitted that the applicant would be disadvantaged at a future sentencing plea if he was not allowed, while on bail, to attend Habitat. In doing so, Counsel relied on the decision of Warren CJ in R v Hai Minh Nguyen.[15] In her decision, Warren CJ said:

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. [...][16]

39 This is a possible detriment, but one which will have been the product of the applicant's own conduct. Furthermore, the Court is to be guided not only by principles pertaining to the applicant but by those which pertain to the wider community, one of which is to '[maximise] the safety of the community and persons affected by crime to the greatest extent possible'.[17] This is a particularly relevant principle for the Court to consider in this matter given the applicant's history of breaching court orders and bail conditions.

40 In addition to these matters, counsel for the applicant raised the issue of parity. Parity considerations may, in an appropriate case, be relevant to the question whether the applicant has established the existence of exceptional circumstances.[18]

41 In DPP v Abbott, Gillard J, referring to a passage dealing with the sentencing of co-offenders, said:

Adapting that for a bail application the principle can be stated - where other things are equal applicants for bail should receive the same decision; where other things are not equal the bail applications may be dealt with differently.[19]

42 The applicant submits that one of the people implicated in the syndicate, Mr Wu, has been granted bail and relies on this fact in support of the argument that the parity principle would weigh in favour of the grant of bail for the application.

43 However, it is apparent from a comparison on the materials before me that Mr Wu's position is significantly different to that of the applicant.

44 Unlike the applicant, Mr Wu had no prior convictions recorded in Australia, no pending matters and no history of breaches of bail conditions or community correction orders.

45 In the circumstances, there is no merit in the argument that the applicant should, like Mr Wu, be granted bail. In this regard, I note that another person implicated in the syndicate (Mr Dang) has been refused bail. Mr Dang has prior convictions.

46 I have considered the personal circumstances of the applicant, including the fact that the applicant would be provided with accommodation with his partner and her family and the financial and other support proffered including the provision of a $250,000 surety. In addition, the applicant has received an indication from an employee of Woolworths to the effect that the applicant would be strongly considered for re-employment if he wished to resume his work at Woolworths.[20]

47 The Court is also obliged to take into account the fact that the applicant has previously shown disregard for Court orders including bail conditions as follows:

(a) the current offences are alleged to have been committed whilst the applicant was on bail for the affray matters;

(b) on 15 March 2017, the applicant was convicted of possessing cocaine and a 15 month community correction order was imposed. The affray matters were committed on 14 January 2018 during the operational period of this community correction order;

(c) throughout the investigation for the current drug trafficking matters the applicant was detected by police surveillance breaching his bail conditions and was detected by police as being involved in drug trafficking activities while subject to the community correction order; and

(d) the applicant has a prior conviction for breaching a community correction order.

48 Whilst the personal matters pertaining to the family support and proposed drug rehabilitation weigh in favour of the applicant, clearly these latter matters do not.

49 Having regard to the strength of the prosecution case, the serious nature of the charges, and all the other circumstances, including the applicant's history of breaching court orders, I am not satisfied that exceptional circumstances exist that justify the grant of bail.

50 Accordingly, it is not necessary for me to proceed to consider whether the prosecution has established that there would be an unacceptable risk that the applicant would commit an offence while on bail if he were released on bail.

[1] Schedule 1, Bail Act.

[2] Schedule 1, paragraph 6(a), s 71 Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[3] Section 4A(2) Bail Act.

[4] Sections 4A(3) and 3AAA Bail Act.

[5] Section 4E(1) Bail Act.

[6] Section 4E(2); see also s 4E(3) Bail Act.

[7] Affidavit of Ms Mellios sworn in response to the first affidavit of Michael Kelly sworn 9 October 2019.

[8] Exhibit D, affidavit of Michael Kelly sworn 9 October 2019.

[9] Breach proceedings were initiated outside the statutory timeframe of six months after conviction of the breaching offence and did not proceed.

[10] [2004] VSC 17.

[11] [2019] VSC 81, [39].

[12] [2019] VSC 362, [43].

[14] Woods v DPP [2014] VSC 1, [39] (Bell J) citing Vincent J in Moloney (Unreported, Supreme Court of Victoria, Vincent J, 31 October 1990, 1-2); Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA); DPP (Vic) v Cozzi [2005] VSC 195, [19] (Coldrey J); and Re TP [2018] VSC 748, [32]-[33] (Champion J).

[15] [2003] VSC 508.

[16] [2003] VSC 508, [24].

[17] Section 1B(1)(a) Bail Act.

[18] Bchinnati v DPP (No 2) [2017] VSC 620, [69]-[70] (Croucher J).

[19] [1997] VSC 45, p. 15.

[20] The letter provided to the Court is not on Woolworths letterhead. It is on plain paper and undated. Nevertheless, I have treated it as a factor favourable to the applicant.