Re Pham [2024] VSC 143 (26 March 2024)

1 Hien The Pham, aged 20, applies for bail. He was arrested on 14 June 2023 and charged with attempting to possess a commercial quantity of a border‑controlled drug (methamphetamine) between 22 and 27 May 2023.[1] He is also charged with possession of cannabis found on the day of his arrest.[2] He has remained in custody since that time, having been refused bail by a magistrate on 31 July 2023.

2 Given the nature of the principal charge, Mr Pham must be refused bail unless he establishes exceptional circumstances justifying a grant of bail.[3] Further, if he clears that hurdle, bail must be refused if the prosecution establishes that, if bailed, he would present an unacceptable risk of offending and thereby of endangering the safety or welfare of the public.[4]

3 For reasons that follow, I am satisfied that exceptional circumstances exist that justify bail, and I am not satisfied that there is an unacceptable risk that, if bailed, Mr Pham would commit an offence or endanger the safety or welfare of any person.

4 Accordingly, he will be released on bail with a surety[5] in the amount of $10,000 and with several conditions that I will list at the conclusion of these reasons.[6]

5 On 25 January 2023, the Royal Canadian Mounted Police advised the Australian Federal Police ("AFP") that they had detected and seized a sea freight consignment bound for Melbourne from Vancouver that contained methamphetamine.

6 The consignment was a full shipping container of 18 pallets, each of which contained 60 jugs purportedly of canola oil. Fifteen of the pallets did indeed contain canola oil, whereas the other three each contained over 960 kilograms of liquid, about 200 kilograms of which was methamphetamine. Thus, in total across those three pallets, there was said to be about 2,900 kilograms of liquid in 180 jugs containing around 600 kilograms of methamphetamine.

7 The consignment arrived in Melbourne on 1 March 2023. Over the next two days, the AFP deconstructed the consignment and replaced the contents of the three offending pallets with an inert substance. Shortly afterwards, the pallets were the subject of a controlled delivery.

8 It is alleged that, under the direction of JB, who is one of the five accused in this matter, the consignment was subsequently moved to three different storage facilities in Melbourne, the third being in Moorabbin.

9 Subsequently, one of the substituted pallets and one of the unsubstituted pallets were sent to New South Wales.

10 On 18 May 2023, it is believed that JB emailed the facility in Moorabbin to request the collection of the remaining 16 pallets (two of which were the remaining substituted pallets) on 22 May.

11 Mr Pham's alleged involvement in the attempted possession offence included the following. On 22 May 2023, at the direction of his co‑accused HN and along with others, Mr Pham was involved in moving 16 pallets, including the remaining two substituted pallets, by truck from the facility in Moorabbin to another storage facility in Sunshine. Over the next week or so, Mr Pham was involved in other activities connected with the consignment, including, at the direction of HN, removing a jug from the pallets. During this period, Mr Pham used an encrypted application on his mobile phone to communicate with HN. It is also alleged that HN was to pay Mr Pham $2,000 for his role in the offending.

12 While the summary before the Court alleges that Mr Pham was involved in trafficking drugs for HN between 10 and 11 June 2023, he has not been charged with any such offence. Moreover, it cannot be that the drugs allegedly trafficked were sourced from the imported pallets, as they contained inert substances.

13 In any event, police arrested Mr Pham on 14 June 2023 and charged him with the attempted possession offence.[7] He made no comment when interviewed by police.

14 The applicable commercial quantity of methamphetamine is 0.75 kilograms.[8] The offence of attempting to possess a commercial quantity of a border‑controlled drug carries a maximum penalty of imprisonment for life.[9] Mr Pham's alleged behaviour concerns an attempt to possess what turned out to be about 400 kilograms of methamphetamine. Thus, on the face of it, this is a serious example of a serious alleged offence.[10]

15 Later, Mr Pham was also charged with possession of cannabis found in a bag at the time of his arrest.[11]

16 Mr Richter, who appears for Mr Pham, relies on a combination of factors as amounting to the necessary exceptional circumstances.

17 Ms Karamicov, who appears for the Commonwealth Director of Public Prosecutions, submits that Mr Pham has not discharged that onus.

18 In my view, the following matters, in combination, amount to exceptional circumstances justifying a grant of bail.[12]

19 First, Mr Pham was only 19 years old at the time of the alleged offending, and is now only 20.[13]

20 Second, he has no prior convictions whatsoever.[14]

21 Third, this is the first time he has ever been in custody.[15]

22 Fourth, I am satisfied that this matter will not be reached for trial in the County Court until at least the end of 2025 or early in 2026.[16] The matter is presently listed in the Magistrates' Court for a three‑day committal hearing for Mr Pham and two co‑accused (HN and CT) commencing 24 June 2024. I was informed that two other co‑accused (JB and BW) are in the process of attempting to settle their matters, but there is no guarantee that they will. Whether or not a settlement occurs, and even if it is only Mr Pham, HN and CT that end up facing trial, Mr Richter estimates that such a trial would be likely to take in the order of four to six weeks to complete. Given that it will have been a year from the date of arrest when the matter reaches the committal hearing, it is reasonable to expect that it would take another 18 months or more for the matter to get to a trial of those dimensions, which would bring the trial date to late in 2025 or early in 2026.

23 In my view, a period of two‑and‑a‑half years or more - or another 21 months or more from now - is far too long a time for a young person with no prior convictions to be in custody awaiting trial on a matter like this, notwithstanding the seriousness of the alleged offending.

24 Fifth, having seen and heard her give sworn viva voce evidence (through an interpreter), I accept that Mr Pham's mother Tiffany Nguyen will do the following things should her son be released on bail:[17]

(a) First, she will act as a surety which she will secure by a $10,000 deposit of cash she has borrowed from her partner. I accept that $10,000 is a lot of money for Ms Nguyen. Moreover, I accept that she understands her responsibilities as a surety.

(b) Second, I am satisfied that Ms Nguyen will employ her son in her fish and chips shop six days a week (Monday to Saturday) from 8:00 a.m. to 8:00 p.m., that she will take him to church on Sundays, and that she will keep a close eye on him generally.

(c) Third, I am satisfied that, as she undertook to do in her evidence, she will report any breach of bail to the police.

(d) Fourth, I am satisfied that, while she was not aware of her son's drug problem before his arrest, she is aware of it now. With that in mind, she is concerned to ensure that he remains drug‑free, that he gets the treatment he requires, and that he attends the associated appointments he is required to attend.

25 That leads to the sixth factor, which is that Mr Pham has been assessed as suitable for intensive case management by the Court Integrated Services Programme (or "CISP", as it is known).[18] This organisation will arrange the types of counselling or other professional services that Mr Pham might need to deal with his drug problem and his PTSD and related mental health concerns.[19] In particular, CISP's initial treatment and support programme would include the following elements:

(a) Mr Pham would attend an appointment with an advanced case manager at CISP within two days of his release.

(b) He would then attend a further assessment in relation to substance and/or alcohol abuse with an accredited worker.

(c) CISP would support Mr Pham in attending a GP to obtain a mental health care plan and referral.

(d) CISP would give him access to a trained and experienced trauma‑informed counsellor for support concerning childhood trauma and abuse.

26 That leads me to the seventh factor, which is that Mr Pham has been assessed by psychologist Jeffrey Cummins[20] to have complex PTSD and a cannabis use disorder.[21] Mr Cummins opines that Mr Pham has had a significantly dysfunctional and traumatic upbringing stemming, in part, from his separation from his father at a young age. His father was imprisoned for many years for drug‑related offending. Mr Pham would visit his father in prison, which he found difficult. In addition, as a child, Mr Pham witnessed violence towards his mother from previous partners. I am satisfied that CISP will assist Mr Pham in obtaining the services necessary to assist him with these afflictions. Further, pleasingly, he told Mr Cummins, who assessed him as possessing high average intelligence, that he was motivated to break away from his former negative peer group.

27 Eighth, I am satisfied that, having spent nine months on remand, including with a drug‑free urinalysis and a commitment to doing every educational course available to him, Mr Pham is of a mind to take up the services available through CISP, to break away from negative peers, and to assist his mother in her business.

28 The ninth factor is that I accept Mr Richter's submission that there are triable issues on the principal charge.[22] Those issues concern, among other things, whether Mr Pham was aware that the drugs were imported. It is plain from the evidence of his conversations with one of his co‑accused that Mr Pham had very little idea of what the pallets were supposed to contain, or in what amounts.

29 The tenth factor is that, if convicted, it could not be said that Mr Pham was anything other than hired help in offending about which he knew very little. Mr Richter likened him to a serf who is so low in the hierarchy that he was not even aware of the lord in the feudal structure.[23] That said, Mr Richter did not shy away from the gravity of the alleged offending.[24] Nor did he submit that the delay spoken of earlier would be likely to exceed the sentence Mr Pham would receive if convicted.[25] Nevertheless, given Mr Pham's youth, lack of prior convictions and his comparatively minor role, any sentence imposed upon him is likely to be affected substantially by his prospects of rehabilitation. Thus, if he is given the chance to further his rehabilitation on bail, that would be particularly relevant to any sentencing were he convicted.

30 For these reasons, I am satisfied that the foregoing matters, in combination, amount to the necessary exceptional circumstances justifying bail.

31 The same factors cause me to find that I am not satisfied of an unacceptable risk that, if bailed, Mr Pham would offend and thereby endanger the safety or welfare of others.

32 Among other things, Ms Karamicov submits that there is an uncertain and insufficient regime of treatment in place to ensure that Mr Pham does not turn to drugs again and become involved in serious offending. Mr Richter's answer is that the nature of CISP's arrangements is that the professionals to whom Mr Pham is referred will assess the appropriate requirements for him, whether that be in relation to counselling and/or treatment.

33 Of course, there is some risk that, if bailed, Mr Pham would offend and thereby endanger the safety or welfare of others. But the law is that the asserted risk must be an unacceptable risk to deny bail.

34 And I am satisfied that his proposed involvement with CISP, when combined with the regime of work and attendance at CISP‑related appointments that his mother will facilitate and support, will ensure that the risk that Mr Pham will deviate from the straight and narrow path is not unacceptable.

35 In my view, as an alleged first offender at 19, Mr Pham should be given the opportunity to demonstrate that he can be on bail without offending or endangering the safety or welfare of others, notwithstanding the gravity of the alleged offending.

36 I am also satisfied that the conditions of bail, which I have discussed with counsel, are sufficient to offset any such risk so that it is not unacceptable.[26]

37 It follows that I am satisfied that bail must be granted.

38 Accordingly, I order that Hien Pham be admitted to bail with a surety of $10,000 and on the conditions that he:

(a) is to reside at [redacted] ("the residence");

(b) is to be present at the residence between the hours of 10:00 p.m. and 6:00 a.m. ("the curfew hours");

(c) is to present himself at the door of the residence during the curfew hours, if requested to do so by a police officer;

(d) is not to contact witnesses for the prosecution, except the informant (or his nominee);

(e) is to surrender to the informant (or his nominee) any passport or other travel document held by him within 24 hours of his release from custody, and he is not to apply for any further passport or other travel document;

(f) is not to attend any points of international departure;

(g) is not to leave Victoria or Australia;

(h) is to obey all lawful directions given by Court Integrated Services Programme case workers;

(i) is not to contact, or associate with, any co‑accused;

(j) is to report to the Sunshine Police Station between the hours of 7:00 a.m. and 9:00 p.m. each Monday, Wednesday and Friday;

(k) is to have and use only one mobile phone, in respect of which:

1. he is to provide to the informant (or his nominee) the phone, SIM and IMEI numbers;
2. he is not to use encrypted messaging applications other than WhatsApp; and
3. he is to allow the informant (or his nominee) access to the phone upon request; and

(l) is to appear at the Melbourne Magistrates' Court for a committal hearing at 9:30 a.m. on 24 June 2024, and thereafter as directed by that court.

[1] Contrary to ss 11.1 and 307.1 of the Criminal Code (Cth).

[2] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[3] This is because, by virtue of s 4AA(1) and items 9 and 12 of Schedule 1 of the Bail Act 1977 (Vic), the exceptional circumstances test applies to a decision whether or not to grant a person bail who is charged with an attempt to possess a commercial quantity of a border‑controlled drug.

[4] See ss 4D and 4E (including s 4E(1)(a)(i) and (ii)) of the Bail Act 1977 (Vic). No reliance was placed on s 4E(1)(a)(iii) or (iv), which concern the risks of interfering with a witness or otherwise obstructing the course of justice in any matter and failing to surrender into custody in accordance with bail.

[5] As of the day of hearing this application, 25 March 2024, several amendments to the Bail Act 1977 (Vic) effected by the Bail Amendment Act 2023 (Vic) came into force (see s 2(2) of the latter Act), including the change in nomenclature from a surety to a "bail guarantor". However, since this application was commenced before the commencement date of the amendments, I continued to use the older nomenclature, and also considered the application under the previous provisions (see the transitional provisions in ss 34(22) and (23) of the Bail Act 1977 (Vic)).

[6] I heard the application and granted bail yesterday, 25 March 2024. At that time, I gave ex tempore reasons but promised to publish my more detailed reasons in written form later. These are those reasons, which I have left in the present tense, as if delivered yesterday.

[7] Contrary to ss 11.1 and 307.1 of the Criminal Code (Cth).

[8] See s 301.10 of the Criminal Code (Cth) and the Criminal Code Regulations 2019 (Cth), regulation 14(b) and Schedule 2, clause 1, item 121.

[9] See ss 11.1(1) and 307.1 of the Criminal Code (Cth).

[10] See s 3AAA(1)(a) of the Bail Act 1977 (Vic).

[11] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[12] See s 3AAA(1) of the Bail Act 1977 (Vic) for a list of the surrounding circumstances that are to be taken into account in determining whether exceptional circumstances exist and whether there is an unacceptable risk of the kind asserted.

[13] See s 3AAA(1)(g) of the Bail Act 1977 (Vic).

[14] See s 3AAA(1)(c) of the Bail Act 1977 (Vic).

[15] See s 3AAA(1)(c)-(g) of the Bail Act 1977 (Vic).

[16] See s 3AAA(1)(k) of the Bail Act 1977 (Vic).

[17] See s 3AAA(1)(g) & (h) of the Bail Act 1977 (Vic).

[18] See s 3AAA(1)(i) of the Bail Act 1977 (Vic). CISP's report (dated 25 March 2024), authored by Ridimi Perera (an assessment and referral practitioner), was received in evidence without objection.

[19] See s 3AAA(1)(g) & (h) of the Bail Act 1977 (Vic).

[20] The report of Mr Cummins (dated 4 December 2023) was received in evidence without objection.

[21] See s 3AAA(1)(g) & (h) of the Bail Act 1977 (Vic).

[22] See s 3AAA(1)(b) of the Bail Act 1977 (Vic).

[23] See s 3AAA(1)(a) of the Bail Act 1977 (Vic).

[24] See s 3AAA(1)(a) of the Bail Act 1977 (Vic).

[25] See s 3AAA(1)(k) & (l) of the Bail Act 1977 (Vic).

[26] See s 5AAA of the Bail Act 1977 (Vic).