Re Tong [2020] VSC 141 (26 March 2020)

1 Thi Hong Tham Tong, the applicant, applies for bail in respect of charges she faces of trafficking in a drug of dependence (cannabis), possessing a drug of dependence (cannabis), dealing with proceeds of crime, committing an indictable offence while on bail and contravening a conduct condition of bail.

2 The parties agree that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of a Schedule 2 offence (trafficking in a drug of dependence while on bail for a Schedule 1 offence (cultivating a narcotic plant in not less than a commercial quantity). In addition, it is noted that committing an indictable offence while on bail and contravening a conduct condition of bail are also themselves Schedule 2 offences.

3 The applicant has been in custody since the day of her arrest on these matters on 14 August 2019. She was refused bail in the Horsham Magistrates' Court on 10 December 2019, on the basis that she had failed to demonstrate the existence of exceptional circumstances. In addition, she was found to be an unacceptable risk of committing an offence while on bail. The matter is next listed for a further committal mention in the Melbourne Magistrates' Court on 14 April 2020.

4 At the time of the alleged offending, the applicant was on bail for charges of cultivating a commercial quantity of cannabis, possessing a drug of dependence (cannabis), and theft. These charges relate to events alleged to have occurred between 30 August 2017 and 22 February 2018.

5 The applicant was originally charged on summons in the earlier matter on 22 March 2019. On 18 April 2019, she entered into bail following a filing hearing in the Melbourne Magistrates' Court. Her bail was subject to various conditions, including that she not leave the State of Victoria without the written consent of the informant. Relevantly, at the time the applicant was arrested in the matters the subject of this application, she was on the Western Highway west of Nhill in a vehicle heading in the direction of Melbourne. She indicated that she had been in Adelaide visiting her mother.

6 On 14 February 2020, at the committal mention in respect of the earlier matter, the applicant pleaded guilty to cultivating a narcotic plant (simpliciter). She remains on bail for this matter, which is next listed for a plea hearing in the County Court on 24 July 2020.

7 At approximately 1.05 pm on 14 August 2019, police intercepted a vehicle being driven by her friend and co-accused Van Sang Ha[1] on the Western Highway at Miram in rural Victoria. The applicant was in the front passenger seat of that vehicle.

8 A search of the vehicle located $15,000 cash in the boot together with a carry bag containing three large vacuum seal bags. Inside each vacuum seal bag were nine smaller bags filled with green vegetable matter. Before the bags were counted, the co-accused stated that there were '27 pounds in total'.

9 The applicant was arrested and transported to the Horsham Police Station for interview. She advised police that she had been travelling from Adelaide after visiting her sick mother in a vehicle that she had borrowed from her sister. She denied trafficking or possessing cannabis, and denied possessing the cash found in the boot of the vehicle.

10 The total amount of green vegetable matter, alleged to be cannabis, was weighed at approximately 12.6 kilograms. The estimated street value of the cannabis, if sold per pound, is $59,400. If sold per gram, the estimated value increases to $244,000.

11 The applicant is a 47-year-old female with no criminal history. She has two children to her previous partner[2], with whom she was in a relationship for approximately 20 years. Her former partner developed a heroin addiction during the course of their relationship and was incarcerated. The applicant turned to gambling and ultimately had to sell her home in order to pay off gambling debts. Against this background, the applicant is said to have become involved in criminal activity resulting in the charges in the earlier matter.

12 Section 1B of the Bail Act 1977 ('the Act') sets out the guiding principles of the Act and reads in part as follows:

(1) The Parliament recognises the importance of -

(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;

...

(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

13 Section 4 of the Act makes plain the fact that there is to be a presumption in favour of the granting of bail.

14 Section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, the Court must refuse bail unless 'satisfied that exceptional circumstances exist that justify the grant of bail'.

15 The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.

16 If satisfied of the existence of exceptional circumstances, the Court is required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:

i. endanger the safety or welfare of any person; or

ii. commit an offence while on bail; 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.

17 The respondent bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, the Court is required to take into account the surrounding circumstances pursuant to s 3AAA. The Court is also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.

18 The meaning of exceptional circumstances has been rehearsed in a number of decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[3] stated the relevant principles as follows:

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.[4]

19 Further, in the recent matter of Re Brown,[5] Lasry J noted:

... the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

• The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
• Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
• Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[6]

20 The applicant relied on a combination of matters in proof of the existence of exceptional circumstances justifying the grant of bail. These matters were as follows:

(a) The seriousness of the offending. It was submitted that the allegations against the applicant are not serious examples of the charges she is facing. The quantity of drug trafficked was not in 'the higher category'.

(b) The strength of the prosecution case. It was conceded that the applicant was found in the vehicle in which the drugs were found, and that the car belonged to her sister, clearly placing her in possession of the drugs specified. However, it was submitted that the co-accused could equally be responsible for the drugs. Trafficking in the drugs in question is disputed, and there are arguable issues to be tried.

(c) Delay. The matter was intended to resolve summarily as a contested hearing, but this was not consented to by the respondent. Since that time, there has been a delay in the preparation of the prosecution brief, which is still outstanding. There is a further delay anticipated in the provision of the DNA statement. The case is next to be heard on 14 April 2020, but there is real uncertainty about when a contested committal will be listed, particularly in light of the delay and uncertainty introduced to the criminal justice system because of the COVID-19 pandemic. Mr Melasecca submitted a contested committal was unlikely to occur this year. The trial, therefore, as things currently stand, is unlikely to be heard next year. Added to the more than 7 months already on remand, this adds up to a very long period of time on remand.

(d) The likely sentence should the charges be proved. It was submitted that a sentence of a community correction order would have been inevitable if the respondent had consented to the matter proceeding summarily in the Magistrates' Court. Even now that the matter is in the indictable stream, it was submitted that in the circumstances of a 47 year old first offender, a community correction order ('CCO') with or without a term of imprisonment would be within the range. The applicant's time on remand would 'far exceed' any sentence that might be imposed.

(f) The lack of adverse bail history, save for the present circumstances.

(g) The fact that the applicant is experiencing her first time in custody. This has had a salutary effect on her, and is likely to have strongly impressed upon her the need to fully comply with the conditions of any future grant of bail.

(h) The fact that the applicant is a single mother who has the care of two children and has experienced a significantly traumatic past.

(i) The fact that the applicant has been participating in available programs in prison and has shown the potential for rehabilitation. [7] On this score, Mr Melasecca noted that whilst the applicant is not out of the woods so far as her gambling addiction is concerned, she has taken significant strides in that direction. Furthermore, Crown Casino and other venues with poker machines, the gambling mode to which the applicant fell prey, are now closed, and will be so for the foreseeable future.

(j) The availability of stringent conditions which would ameliorate any risk posed by the applicant to an acceptable one.

21 Mr Melasecca submitted that in this case, the above combination of circumstances was sufficient to amount to exceptional circumstances. He then relied on all of those matters in resisting the contention that there was an unacceptable risk of the applicant again offending should she be released on bail. Of particular note in this regard was the very positive efforts the applicant has made towards rehabilitation whilst in custody, and the effect of that first period of time in custody on her attitude towards bail.

22 The affidavit filed on behalf of the respondent indicated that bail was opposed on the basis that exceptional circumstances had not been demonstrated on the material, and alternatively on the basis that the applicant posed an unacceptable risk of reoffending. Mr Lewis, at the commencement of the application, in effect said that he would listen with interest to the submissions made in support of the applicant as to the existence of exceptional circumstances. Having done so, Mr Lewis maintained the prosecution attitude in opposition to bail. To say that he did so with seeming reticence is in no way to be critical of the position he adopted on behalf of the respondent. The fact is, the applicant allegedly committed a serious drug offence whilst on bail for earlier, even more serious offending of the same type. She did so in clear contravention of the requirements of an undertaking of bail entered into only months before. Mr Lewis submitted that in the circumstances, and even taking into account the very substantial delay in prospect, which Mr Lewis described as the 'real issue' in this application, the high bar of exceptional circumstances had not been reached. In my view, the respondent's position in this regard was entirely reasonable.

23 Mr Lewis emphasised the seriousness of the offending and the apparent strength of the case. Whilst he did not accept the applicant's contention as to the likely sentence, or that the trial would necessarily be as far down the track as maintained by Mr Melasecca, the delay was a very significant issue, especially in view of the likely sentence.

24 In respect of unacceptable risk, the concern was as to further offending. The alleged offending and proven misbehaviour of the applicant on bail were matters that spoke strongly to the risk of reoffending should bail again be extended to her. Furthermore, whilst the applicant has received some counselling in respect of her gambling addiction, the strong financial imperative which underpinned her offending still existed and may still be a future driver to her conduct. I should be satisfied that the obvious risk she posed was unacceptable.

25 As the law requires me to do, I have taken into account the surrounding circumstances of this case, as set out in s 3AAA of the Act.

26 In my view, contrary to the submissions of Mr Melasecca, the offending here is serious. While on bail for cultivating a commercial quantity of cannabis, the applicant was apprehended by police in apparent possession of packaged up parcels of cannabis weighing about 12.6 kg, an amount in excess of 49 times the traffickable quantity, and one half of the commercial quantity for that drug of dependence. She was in possession of a large sum of cash alleged to be proceeds of crime. Furthermore, she committed indictable offences while on bail, itself a matter of no small significance. Mr Melasecca submitted that this offending was of such a level of seriousness that the applicant would not receive a custodial sentence for the offending. Whilst the matter is still in the early stages, and the eventual sentence will be a matter for another judge, I find that submission difficult to accept.

27 In terms of the strength of the prosecution case, the applicant was apprehended in a motor vehicle owned by her sister and on loan to her. She was in the company of a male who was her co-offender in the drug charges in respect of which she was on bail at the time. As things appear to me at this early stage, the prosecution may be able to mount a strong case of her having been in possession of the cannabis in question. As for the requirements of trafficking, if possession can be established, in light of the weight of the drug and the manner in which it was packaged, trafficking by the applicant may also be able to be readily established. In respect of the other offences charged, the evidence is also seemingly strong.

28 A matter that may be considered to point quite strongly against a grant of bail, not that I would consider it in isolation, is the fact that this alleged offending occurred at a time when not only was the applicant on bail for serious drug offences, which bail undertaking had been entered into by her less than four months before her arrest on 14 August 2019, but she also admitted a breach of a specific conduct condition of bail preventing her from leaving the State of Victoria. Her flagrant disregard of an important condition of the bail granted to her in respect of very serious offending, and her alleged involvement in a further and serious instance of similar offending while on that bail, are matters that would raise real concerns as to her willingness to comply with any conditions of bail I might impose, and the risk of her reoffending should she again be released.

29 Furthermore, there is no material to indicate that the gambling addiction which bedevilled her in the lead-up to her offending, and the resulting state of financial desperation, have been effectively alleviated at this time. She has engaged in counselling in this regard, but still has much work to do. I also note and accept the submission of Mr Lewis that the driver to her offending, namely, the financial position in which she found herself because of her gambling, may still be a relevant factor in her future conduct, albeit that she has taken some steps to rid herself of the gambling problem.

30 I now turn to the matter of delay, which is really at the heart of the application and was correctly described by Mr Lewis as the real and pressing issue in this case. As things currently stand, the applicant is due to attend a committal mention hearing at Melbourne Magistrates' Court on 14 April 2020. In the current climate, there is considerable uncertainty about whether that hearing will proceed, and how long she may wait for a contested committal to be listed. Mr Melasecca submitted that a contested committal before the end of the year is unlikely. Mr Lewis challenged that contention, based on recent advice received. One this is clear enough, however. If the applicant maintains her present intention of contesting these charges, it is apparent that their final disposition will be some considerable time down the track, perhaps late next year at the earliest, if not going into 2022. The delay, on any view, is likely to be a very long one in the circumstances, with the potential to be considerably longer than the usual delays in such a case. That is a very significant matter to be taken into account.

31 I do take into account, as a separate aspect, although it impinges on the matter I have just dealt with, the fact that the COVID-19 pandemic sweeping Australia and the world and the drastic measures taken to slow its spread have the potential to cause significant delays in the criminal justice system. Jury trials have been indefinitely postponed in this Court and the County Court and it seems likely there may also be delays in the Magistrate's Court before matters are sent for trial. I have been referred to the bail decision of Lasry J in Re Broes[8] and I have had regard to what was said therein in connection with the implications of the virus. In that case, his Honour concluded that the already significant anticipated delay in that case would likely be exacerbated by the consequences of COVID-19, and he was satisfied in the end that exceptional circumstances had been established. I note that the offending in that case was in the summary stream and was not as serious as that before me. Furthermore, the respondent in that case conceded that it would be open to his Honour to find the existence of exceptional circumstances.

32 I have also been referred to the recent comments of the Court of Appeal in Brown v The Queen[9], the first appellate decision in Victoria which has considered the implications of the COVID-19 pandemic. In that case, the Court said:

In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.[10]

33 It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. These matters, whilst themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken.

34 Turning to the question of the likely sentence should the applicant be found guilty of these charges[11], as noted earlier I do not accept the initial defence submission that it would necessarily be a non-custodial one. That struck me as being unrealistic. The offending here, to my mind, is likely to attract a custodial sentence. Mr Melasecca eventually submitted that especially in light of the time already spent in custody by the applicant, a term of imprisonment combined with a CCO may well be open in this case. That submission may be more readily accepted than the initial submission as to a straight CCO.

35 In this case, the applicant has already been in custody since 14 August 2019, a period of 7 months and 12 days. Add to that the period of 18 months or so which may be the shortest realistic period within which a trial may be reached, and there is the prospect of her spending over two years on remand before trial. That would mean that there is the real prospect that the period of time the applicant spends on remand may substantially exceed any sentence she would receive.

36 In all of the circumstances of this case, and particularly having regard to the long period that the applicant would inevitably spend on remand should bail be refused, I am satisfied that exceptional circumstances do exist that justify the grant of bail here. I therefore go on to consider the unacceptable risk test.

37 When that test is considered, whilst not forgetting where the burden of proof lies in its consideration, a substantial hurdle looms in front of the applicant, which hurdle was entirely of her own construction. Having had the good fortune of being released on bail in respect of a charge of cultivating a commercial quantity of cannabis, the applicant ignored an important conduct condition of her bail by leaving the state of Victoria, and, it is alleged, re-offended in serious fashion. She did so within four months of entering into the undertaking. That was a very flagrant breach of the requirements of bail, which would give a court every reason to be unenthusiastic about a future grant of bail to her.

38 In the end, however, and with considerable hesitation because of the brazenness of her recent failure to comply with bail granted to her, but taking account of all of the circumstances, I have concluded that there are stringent conditions of bail which will be such as to ameliorate the risk which clearly exists of the applicant committing offences on bail such that the risk is an acceptable one. I am therefore not satisfied that there is an unacceptable risk.

39 For the reasons stated above, I am willing to grant the applicant bail on her own undertaking and on the following conditions:

1. That she attend Melbourne Magistrates' Court on 14 April 2020 and then surrender herself, and must not depart without the leave of the court and, if leave is given, must return at the time specified by the court and again surrender herself into custody.
2. That she reside at 17B Adams Street, St Albans ('the premises'), and not change her place of residence without first having provided 24 hours' notice in advance to the respondent Leading Senior Constable Heath Martin of Horsham Police Station.
3. That she remain and be present at the premises between the hours of 9.00 pm and 6.00 am each day ('the curfew hours') for the duration of the bail.
4. That she present herself at the front door of the premises during the curfew hours if and when called upon to do so by a member of Victoria Police.
5. That she report to Ms Amanda Brown of Lamberti & Associates, Millswyn Clinic, 466 Punt Road, South Yarra within two working days after this order comes into force, and thereafter, follow the lawful directions of Ms Brown or her nominee.
6. That she must not attend any casino or other venue at which poker machines are in operation or any other form of gambling occurs.
7. That she must not engage in any form of gambling, whether online or in any other format.
8. That she must make available to a member of Victoria Police on request the password or passcode for any mobile telephone, computer or other electronic equipment in her possession or to which she has access.
9. That she report to the Officer-in-Charge or his or her nominee of the police at Keilor Downs Police Station every Monday, Wednesday and Friday between the hours of 8.00 am and 5.00 pm.
10. That she surrender any valid passport in her possession now or which comes into her possession in future within 24 hours of that occurring.
11. That she must not attend any points of international departure from Australia.
12. That she must not leave the State of Victoria without the prior consent of the respondent Leading Senior Constable Heath Martin of Horsham Police Station.

[1] This person was also the co-accused of the applicant in the earlier matter.

[3] [2004] VSC 17.

[5] [2019] VSC 751.

[7] A report from a gambling counsellor who has been providing counselling to the applicant in prison was amongst the material exhibited to the affidavit in support.

[8] [2020] VSC 128.

[9] [2020] VSCA 60.

[11] Section 3AAA(1)(l).