The Queen v Chung [2015] VSC 487

(3) On 21 December 2014 cultivating a narcotic plant in a quantity not less than a commercial quantity of cannabis at 9A State Street, Oakleigh;

(4) On 14 November 2014 cultivating a narcotic plant (cannabis) in a quantity not less than a commercial quantity at 71 Melington Drive Lyndhurst;

(5) On 18 November 2014 cultivated a narcotic plant (cannabis) at 18 Young Street, Springvale;

(6) On 8 January 2015 cultivated a narcotic plant (cannabis) in not less than a commercial quantity at 28 Risdon Drive, Notting Hill;

(7) On 8 January 2015 cultivated a narcotic plant (cannabis) at 11 Third Street, Clayton;

(8) On 8 January 2015 cultivated a narcotic plant (cannabis) at 4 Wellington Road, Clayton;

(9) On 12 January 2015 cultivated a narcotic plant (cannabis) in not less than a commercial quantity at 7 Hayden Street, Clayton;

(10) On 14 January 2015 cultivated a narcotic plant (cannabis) in not less than a commercial quantity at 3 Arunta Crescent, Clarinda;

(11) On 20 February 2015 cultivated a narcotic plant (cannabis) at 2 Ikara Close, Kings Park.

2 Charges 3 to 11 involve a total weight of cannabis of 303.57 kilograms with 927 plants. A large commercial quantity is 250 kilograms or 1,000 plants. In total it is to be alleged that there are 46 properties involved in cannabis crops. The present charges against the Applicant refer to 9 although it is alleged that he is linked to 14.

3 As a result of the charges which refer to a large commercial quantity or commercial quantity of the drug, the Applicant is required to satisfy the court that, pursuant to s 4 (2)(ia) of the Bail Act 1977, exceptional circumstances exist which justify a grant of bail.

4 The Applicant was arrested and charged on 2 February 2015 and has remained in custody since that date. That is significant and, as relied on in this application, is a period of in excess of 7 months.

5 The arrest of the Applicant and others followed investigations between April 2014 and February 2015 under two police operations. The prosecution allege that the person at the peak of the organisation is Loc Tran. Tran is alleged to have been in charge of drug syndicates that trafficked in methyl-amphetamine, cocaine, heroin and cannabis. The cannabis aspect of his activities, which is the subject of a separate police operation, is alleged to involve the Applicant who is claimed to be connected with the provision of properties for the purpose of large scale cultivation of cannabis. With Tran as the principal organiser, the Applicant and Vasilios Maikantis are said by the prosecutor to be senior members of the group who sourced properties used to grow cannabis crops.

6 The Applicant was a licenced real estate agent and the director of the real estate organisation L J Hooker in St Albans; a position he had held since 2003. His licence has since been cancelled. He is alleged to have maintained three mobile telephone services, two of which were in a false name. As I said, his particular role as part of a joint criminal enterprise was to assess commercial and residential properties for the suitability for cannabis cultivation and then report back to Tran and the accused man, Maikantis.

7 The monitoring of telephone services revealed that Tran was in regular contact with the Applicant and with Maikantis. It was Maikantis who leased various properties and then provided them to Tran and the Applicant. Maikantis paid the rent for the particular property which would then be provided by either Tran or the Applicant.

8 The evidence the prosecution particularly relies on relates to the leasing of a large number of properties in various suburbs many of which were leased by Maikantis and several of which were managed by the Applicant. Cannabis crops were located at each property.

9 The evidence from telephone intercepts apparently reveals frequent contact between the Applicant, Tran and Maikantis. The conversations relate to what needed to be done to establish and then complete cannabis crops in the properties.

10 One particular aspect of the evidence is a meeting between the Applicant, going by the name of George, and a covert operative on 3 December 2014.

11 This meeting occurred at a factory at Bayswater North. The Applicant is alleged to have inspected the factory to consider its suitability for the hydroponic cultivation of cannabis. The meeting was monitored by police and the Applicant is alleged to have discussed the size of the factory, the advantages and disadvantages of it and how the electrical power would be managed. As I understand it no cannabis was grown at that location but the evidence will be relied on regarding the issues of the participation of the Applicant and his intent.

12 In addition, when the search warrant was executed on the home of the Applicant on 2 February 2015, notes were found in his motor vehicle which appear to relate to five of the properties where crops were established. However, I note that only one of the addresses referred to on the note is the subject to a particular charge against the Applicant.

13 The provisions of the Bail Act which apply to the Applicant require a refusal of bail by the Court unless a condition is satisfied, being the existence of exceptional circumstances.

14 Over many years in this Court there have been a number of rulings on applications for bail where the meaning and effect of that test is considered and dealt with. An obvious challenge in determining such an application is the absence of legislative guidance on the meaning of the phrase "exceptional circumstances". As Hollingworth J noted in a recent application for bail which is factually related to this application:[1]

The [Act] does not specify what considerations may be relevant to establishing exceptional circumstances. It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant, before those circumstances can be characterised as exceptional. But, although the hurdle is a high one, it "should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail."

15 Her Honour's quotation refers to the ruling of Warren J (as she then was) in Whiteside.[2] In that case, after being referred to authority, her Honour adopted the observations of Vincent J in Moloney[3] as follows:

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

16 In Dale v DPP,[4] the Court of Appeal was invited to conclude that the likely delay in that case which would result in pre-trial detention approaching some two years was, on its own and without more, sufficient to constitute an exceptional circumstance which would justify a grant of bail. In response, the Court said:

Counsel referred to a number of cases in which it has been said that, although a delay of two years is no longer a rarity, it is nevertheless inordinate and unacceptable and in that sense may be viewed as exceptional. Alternatively, counsel contended, if the delay were not enough in itself to warrant bail, the delay coupled with the appellant's medical condition and the emotional and financial hardship inflicted on him and his family, were sufficient in total to warrant bail.

Clearly, the delay involved in this case is very substantial, even if not unprecedented in a case of this complexity. What makes it much more significant, however, is that the conditions in which the appellant was imprisoned following his arrest in February have severely affected his mental health.

17 So, the Court dealt with the matter on the basis of the combined effect of several factors and concluded:[5]

All things considered, we were persuaded that the appellant had established exceptional circumstances. That conclusion was based on the combined effect of:

• the anticipated delay in the matter coming on for trial,
• the fact that his conditions of incarceration have caused him to suffer moderate to severe depression, which requires treatment; and
• the potential loss of the family business.

18 As Kirby J said in Cabal v United Mexican State:[6]

In the setting of the Act, where the somewhat analogous criterion of special circumstances must be shown, the courts have resisted, correctly in my view, an attempt to segment or compartmentalise the circumstances that will, or will not, meet the statutory standard. An overprecise or artificially rigid classification of qualifying or insufficient circumstances is not what is called for, any more under the Constitution than under the Act.[7] What is essential is that the Court should consider all the circumstances in their totality.

The purpose of obliging the applicant for bail to demonstrate "special" or "exceptional" circumstances is to focus the attention of the court on the reasons why detention in custody pending surrender is the normal rule. And why something unusual and extraordinary is necessary to depart from that rule.

20 Consistent with those principles, Mr Dane QC on behalf of the applicant, relied on what he described as a line of authority within the Trial Division of this Court over the last few years.[8] He distilled from those cases factors which might lead to a conclusion that exceptional circumstances had been established on an application for bail where that was required and then referred to several features of this case which he submitted demonstrated that high test had been met by the Applicant.

21 The factors to which he referred are specifically described by Coldrey J in DPP v Sabino Cozzi.[9] His Honour having agreed with the approach of Vincent J in Moloney and then reviewed several of the cases which subsequently discussed the meaning of "exceptional circumstances". He noted:

An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.

22 Coldrey J went on to refer to a variety of circumstances which had been found in various cases to constitute exceptional circumstances and summarising those to which his Honour referred they included:

23 It should be emphasised that this list is not exclusive and obviously other factors might arise in a particular case which will contribute to the conclusion that exceptional circumstances have been established.

24 The primary attack made by Mr Dane on strength of the prosecution case is that the charges against the Applicant, as they are presently formulated, do not properly accommodate the manner in which the case is sought to be put.

25 The first two charges are allegations of conduct being cultivating and trafficking in more than a large commercial quantity between particular dates. The other nine charges are more particular and accumulate to 303.57 kilograms. As I have already indicated, those nine charges refer to particular properties.

26 The prosecution put their opposition to bail on the basis that all the properties were used for the purposes of cultivation. As I understand, the individual charges are subsumed as part of the general allegation that the Applicant, as part of a joint criminal enterprise, cultivated cannabis in not less than a large commercial quantity over a 12-month period, which is the subject of charge 1 coupled with the charge of trafficking of cannabis during the same period.

27 It is clear to me that the prosecution case will be put that the Applicant was part of a very large joint criminal enterprise over that period and, as Mr Dane appeared to concede, the drafting difficulties that he referred to are surmountable.

28 Beyond the issue of an appropriately drafted charge or charges in an indictment, this appears to be a case of some strength against the Applicant on the allegation of cultivating and trafficking in more than a large commercial quantity of cannabis. There appears to be significant evidence of his involvement and status within the syndicate the prosecution allege was in operation.

29 There will be an appreciable delay in this matter by virtue of the size of the brief and the number of people involved.

30 As I earlier noted the Applicant was charged on 2 February 2015. On the following day there was a filing hearing. On 20 February 2015 a bail application commenced in the Magistrates' Court which was later refused. Three days later, the prosecution sought an extension of time to serve the hand up brief. On 8 April 2015 the date was fixed for a committal hearing at 9 November 2015 with a committal mention on 6 October 2015.

31 Assuming the committal proceeds as currently planned, the trial of the Applicant and his accomplices is predicted to be heard in the County Court in August or September of 2016. On that basis, the delay will be in the order of 18 months. It may well be more than that. Mr Dane suggests it is 20 months at best and that there is a significant prospect that the trial of the Applicant will not be heard until 2017.

32 Consistent with principle, it was not submitted on behalf of the Applicant that the delay on its own would be sufficient to warrant a conclusion that exceptional circumstances had been established.

33 In Hang Cao,[10] the applicant in that case was categorised as a "middle manager" in the syndicate under consideration. Hollingworth J analysed the length of the delay faced by the applicant in the context of the potential total effective sentence and non-parole period she might face if found guilty of the offences confronting her. Her Honour concluded that the delay would be similar for that applicant as in this case but would not be "so inordinate as to amount to exceptional circumstances in itself, particularly given the nature and seriousness of the charges". Consistent with the ruling of Nettle J in Hanna v DPP,[11] she did conclude however that the period of delay "may well represent a significant fraction" of either the non-parole period or even the total effective sentence that might be imposed.

34 In this case, as I followed the argument, the prosecutor sought to use that reasoning to reach an opposite conclusion. He effectively submitted that in this case the Applicant could expect to receive a very substantial sentence such that a period of 20 months pre-trial detention would not approach anything like a significant fraction of a likely non-parole period. Therefore it was argued such a delay would not in itself amount to an exceptional circumstance.

35 In my opinion, and with all due respect both to the prosecutor and to those of my colleagues attracted by this approach, there are dangers in this reasoning. If a period of pre-trial detention was expected to exceed the sentence likely to be imposed that will of course amount to an exceptional circumstance. If such a conclusion was indisputable there could be no question that bail should be granted. On the other hand, in my opinion, care must be taken in reaching adverse conclusions of guilt and sentence in advance even of a committal hearing and where the presumption of innocence prevails. To do so runs the risk of diminishing the effect of what would otherwise be significant and oppressive pre-trial detention in the absence of any finding of guilt. The fact that a heavy sentence well in excess of the likely pre-trial detention might be imposed if the prosecution case was to succeed should not be an answer to a delay that was inordinate whether on its own or in combination with other circumstances.

36 Therefore in this case I do not proceed on the basis argued for by Mr Hardjadibrata on behalf the informant that a very significant delay is diminished by a possible heavy sentence on the Applicant. Instead I have considered whether that delay, which at 20 months in custody is significant, in combination with other circumstances, reaches the threshold of exceptional circumstances required under the Bail Act and is consistent with the principles I have referred to.

37 The Applicant is married with two children. However due to a separate relationship he is estranged from his wife. He and his wife separated at the end of 2014. His wife gave evidence on the application before me. She explained that although she would have the Applicant live with her and their children, because she and the children lived with her mother such an arrangement was not possible because her mother would not allow it. Thus the proposal is that the Applicant would live at premises in Hampton Park with his parents and his sister so there is some proximity to the children.

38 The applicant has apparently had an offer of employment with a small business in St Albans. The job would be a menial role in stacking shelves. Mr Dane submitted that given his client's experience and qualifications in real estate there would likely be work of that kind available. It was appropriately accepted that such a submission was entirely speculative. Furthermore, I note that according to the prosecution the Applicant's licence to practice as a real estate agent was cancelled on 6 January 2015 and that any attempt to renew the licence would require the Applicant to undergo a police check.

39 If admitted to bail, the Applicant's prospective employment in St Albans is both menial and logistically impractical. The resultant issue is therefore how the Applicant would support himself financially. No solution to that question is provided.

40 It was next argued that with appropriate conditions and surrender of his passport, the realistic prospect of the Applicant fleeing was very low. The prosecutor submitted that the Applicant was capable of fleeing to other parts of Australia if not overseas. The prosecution relies on the strong motivation the Applicant has to avoid the criminal justice process coupled with a financial obligation of something near $2 million, although the exact details of that are not clear.

41 The Applicant does not have any previous convictions. There is no question that, periodically, the Applicant has had a very difficult experience in custody, due particularly to the consequences of the recent prison riots. Some of those difficulties continue. The effect was set out in an affidavit sworn by Brendan Francis Money on 1 September 2015. The result was that he was moved to Barwon prison where he remains. Between 3 July and 18 August 2015 the Applicant was in long periods of lock-down, although that has been alleviated to some degree.

42 I do not underestimate the difficulty of these conditions.

43 During the application I was informed that a surety is offered based on the equity in a property owned by the Applicant's partner's parents. The surety could, realistically, be no more than $100,000.00. Consistent with the view I expressed in Marijancevic,[12] I have taken it into account on the issue of whether exceptional circumstances have been established. In the circumstances of this case, in my opinion, it does not add significantly to those factors relied in support of the application.

44 Ultimately, however, I have concluded that this appears to be quite a strong case. At this early stage there are obvious difficulties in assessing the relative degree of strength but, that being said, the evidence against the Applicant appears significant.

45 There will be a significant delay which is very regrettable. On its own however it is not sufficient to amount to an exceptional circumstance. The Applicant's family circumstances coupled with his prospects of what appears to be unsatisfactory temporary employment do not add sufficiently to the delay to establish exceptional circumstances. The circumstances of the Applicant's custody have been very difficult but the factors which militate in favour of a conclusion of the kind reached by the Court of Appeal in Dale of exceptional circumstances do not seem to me to apply in this case.

46 In all the circumstances, the application for bail is refused.

[1] Hang Cao v DPP (2015) VSC 198 at para [7].

[2] (1999) VSC 413.

[4] (2009) VSCA 212.

[6] [2001] HCA 42

[7] See Holt v Hogan (No 1) [1993] FCA 463; (1993) 44 FCR 572 at 579; Kainhoffer v Director of Public Prosecutions [1993] FCA 655; (1993) 48 FCR 9 at 12-13 referring to R v Giordano (1982) 31 SASR 241 at 243.

[8] See Armstrong [2013] VSC 111; Pham [2013] VSC 580; Haver, [2013] VSC 622; Pickersgill [2013] VSC 715; and Rodin [2014] VSC 656.

[9] [2005] VSC 195.

[10] [2015] VSC 198 per Hollingworth J.

[12] [2010] VSC 122.