IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2021 0308

IN THE MATTER of the Bail Act 1977 (Vic)		
		
-and-		
		
IN THE MATTER of an application for bail by Minh NGUYEN-HUYNH		

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JUDGE:	Lasry J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 November 2021	
DATE OF JUDGMENT:	29 November 2021	
DATE OF REVISED REASONS:	30 November 2021	
CASE MAY BE CITED AS:	Re Nguyen-Huynh	
MEDIUM NEUTRAL CITATION:	[2021] VSC 791	

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CRIMINAL LAW — Application for bail — Charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug — Delay of three and a half years between charge and trial — Strength of the prosecution case — Exceptional circumstances established — Unacceptable risk demonstrated — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4a, 4D, 4E.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr. John Saunders	SLKQ Lawyers	
			
For the Respondent	Ms. Georgia McMaster	Commonwealth Director of Public Prosecutions	

HIS HONOUR:
1	This is an application for bail by Minh Nguyen-Huynh (‘the applicant’) who is charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug (methamphetamine).  The quantity of drugs involved is of the order of 78 kilograms with a value of about $16 million.
2	The applicant has been on remand since his arrest on 15 January 2021, a period of 317 days, or more than 10 months.  He was charged by Federal Agent Emma Skinner on 16 January 2021.
3	The applicant has been refused bail twice in the Melbourne Magistrates’ Court on 15 March 2021, and on 10 August 2021 at the conclusion of his committal hearing, as he did not establish that exceptional circumstances existed which justified the grant of bail.  By notice filed on 5 November 2021, the applicant now seeks a grant of bail in this Court.
4	The matter is next listed on 14 December 2021 for a directions hearing at the County Court at Melbourne.
5	There is one co-accused in the matter, Duc Quang Nguyen, who also faces the same charge as the applicant, along with another charge of importing a commercial quantity of a border controlled drug (methamphetamine) contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth).  He remains in custody, having made no application for bail.
The alleged offending
6	In summary, the prosecution allege that the co-accused imported 78 kilograms of methamphetamine into Australia on 4 January 2021 concealed within a consignment of meat smokers that arrived by air from South Africa.  It is alleged that the applicant was involved in coordinating the consignment, but he is not charged with the importation itself.
7	On 4 January 2021, Australian Border Force located the packages of methamphetamine concealed within three boxes.  They were addressed to Thomas Matthews of 33 Oberon Avenue, St Albans (‘delivery address’) with a contact mobile phone number listed.  These details are allegedly linked to the co-accused, with the contact phone number subscribed in his name and a statement from the owner that the co-accused was permitted to use sheds at the delivery address for storage.
8	On 6 January 2021, the Australian Federal Police commenced an investigation into the consignment including intercepting the co-accused’s telecommunications, and later the applicant’s as well.  The telephone intercepts allegedly show that the co-accused was in frequent contact with the applicant.
9	At 10:30am on 13 January 2021, police conducted a controlled substituted delivery at the delivery address, which was accepted by the co-accused.  He took the boxes to a rear shed.  The applicant was allegedly observed by police driving around the delivery address at the time.
10	That afternoon, the applicant contacted the co-accused and asked if he was at the warehouse and said he would come over.  He was then observed near the sheds at the delivery address with the co-accused. 
11	Telephone intercept material is relied upon by the prosecution to allege the applicant directed others in relation to the consignment, such as instructing Anh Vinh Le on 14 January 2021 to take ‘the Caucasian group to brother Quang to take care of that matter’ and that the ‘Caucasian guys’ would come to ‘view the boxes’.  He allegedly discussed the arrangements for this meeting with the co-accused and Le across later intercepted communications.
12	On 15 January 2021 around 2:00 pm, police observed Dean Montana arrive at the delivery address.  Police attended and arrested the co-accused in the sheds, along with Le and Montana who were released without charge.  The consignment boxes were open and the substituted material was missing.  Shortly after, the applicant was arrested at his home.  Police executed search warrants at the applicant’s residence and the delivery address. 
13	The applicant made no comment in his record of interview.  The co-accused stated a man named ‘Asing’ offered him $5,000 to store the boxes, and he denied knowledge of their contents.  He confirmed knowing the applicant and recently speaking with him on the telephone.
14	Additional evidence relied upon by the prosecution against the applicant includes:
(a)	Around 1:15am on the day of the substituted delivery, the co-accused called the applicant and told him that he was coming over, and at 1:30 am the co-accused responded ‘yes’ to a text message from the shipping company to confirm delivery.  The prosecution allege it can be inferred that the co-accused and the applicant were together when this occurred;
(b)	Some of the consignment wrappings were found in a bin at the applicant’s residence when the search warrant was executed;
(c)	The applicant’s fingerprint was identified on the consignment note located during the execution of the search warrant at the delivery address;
(d)	Items of clothing seized from the applicant’s residence had fluorescence particles on them consistent with forensic tracer material used on the substituted delivery; and
(e)	A mobile phone containing the SIM card for the phone number used to communicate with the co-accused was seized from the applicant’s residence. The messages between 24 December 2020 and 14 January 2021 had been deleted.
The applicable legislation
15	The applicant is charged with an offence against s 307.5(1) of the Criminal Code Act 1995 (Cth), which is a Schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’).  Bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.  In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including those prescribed in s 3AAA(1) of the Act.
16	If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.  In considering this, the Court must take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
17	Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.
The applicant’s personal circumstances
18	The applicant is 50 years old and is married with two children.  He reports he does not have any drug use or mental health issues.
Criminal history
19	The applicant has criminal history in New South Wales, South Australia and Victoria dating back to 2004.  He has a relevant prior conviction in 2012 in Victoria for trafficking in a commercial quantity of a controlled drug.  He was sentenced to eight years imprisonment with a non-parole period of five years for this offending.  This related to trafficking in around six kilograms of methamphetamine with a potential street value of $6 million.  He was granted parole in July 2017 which expired in April 2020.
20	This prior conviction is clearly of significance.  That also involved methamphetamine valued at about $6 million.  In that case the applicant was arrested in a vehicle near Broadford on the Hume Highway with the drugs secreted in a children’s back pack. 
21	The other convictions include conspiracy to defraud in 2011 and in 2004 the offences of making a threat to kill and assault with a weapon.
The applicant’s contentions
22	Mr Saunders of counsel on behalf of the applicant relied on the following matters in support of the submission that the applicant ought to be granted bail, dealing firstly with the issue of exceptional circumstances and then turning to the question of unacceptable risk.
Strength of the prosecution case
23	Mr Saunders put that the applicant denies the allegations and submits there are at least triable issues in respect of the prosecution case.  In many respects, the existence of “triable issues” tells me very little about the strength of the case.  Mr Saunders for the applicant did not contend that the case was weak but rather that the case against the applicant is circumstantial and that there are issues about the interpretation of phone calls in a foreign language and also the alleged role of the applicant.
Criminal history
24	The applicant concedes that he has a significant and relevant criminal history.
Stable accommodation, family support and surety
25	The applicant is supported by his wife and children and proposes to live with them at [redacted] if granted bail.  His wife owns this property and originally offered a $100,000 surety by way of equity in the property.  On the hearing of this application it soon became apparent that the applicant’s wife’s equity in the property would not permit a surety of more than about $30,000, perhaps less.
Availability of employment
26	The applicant has received an offer of full-time employment with a  former employer.  This is supported by a letter from Thuan Le who is the manager of Panel Plus Collision Centre. 
Strong ties to the jurisdiction
27	The applicant is an Australian citizen and is submitted to have strong ties to the jurisdiction, having lived in Melbourne for a significant period.  Mr Saunders relied on the fact that the applicant travelled to Vietnam and returned to Australia whilst on parole, demonstrating his connection with this country.  
COVID-19 and onerous conditions in custody
28	The applicant submits that he is at risk of exposure to COVID-19 and harsh lockdowns in custody.
Delay
29	The matter is next listed for directions hearing at the County Court on 14 December 2021, and does not yet have a trial date.  As I have said, the applicant has been in custody since January 2021.  In light of the current delays in the County Court related to the suspension of jury trials during the pandemic, the applicant originally submitted it is ‘unknown’ whether his trial would proceed in 2022.  Counsel submitted that the time the applicant would spend on remand if he was not admitted to bail would be of the order of 2 ½ to 3 ½ years from charge to trial.
Unacceptable risk
30	As to risk, the applicant proposes a surety, to which I have already referred, along with conditions of bail, including to reside at the Deer Park address, report daily, comply with a curfew, not leave Victoria, Australia or attend any point of international departure, and not contact any witnesses for the prosecution.
The respondent’s contentions
31	Ms McMaster on behalf of the respondent opposed the application for bail on the basis that the applicant had not demonstrated exceptional circumstances that justified the grant of bail, and further that there is an unacceptable risk he would commit an offence whilst on bail, interfere with a witness or otherwise obstruct the course of justice, and fail to surrender into custody in accordance with conditions of bail. 
Delay
32	As the question of delay the respondent seemed to suggest through Ms McMaster that a remand period of 2½ to 3½ years would not, on its own, establish exceptional circumstances.  In this case, it was put that if found guilty of the offence with which he is charged, the applicant would be sentenced to a term of imprisonment well in excess of such a remand period.
33	Otherwise the respondent’s submissions were primarily about the risk posed by the release of this applicant.
Unacceptable risk
Committing an offence while on bail
34	It was submitted on behalf of the respondent that the applicant’s criminal history demonstrates ongoing breaches of the law, having only recently completed parole for serious offences of the same nature.
Interfering with a witness or otherwise obstructing the course of justice in any matter
35	The respondent also put that there is a real risk that the applicant may contact family members or relatives of the co-accused, or other witnesses who are known to the applicant.  This risk is said to be demonstrated by his previous conviction for making a threat to kill and assault. 
Failing to surrender into custody in accordance with conditions of bail
36	The respondent relied on the applicant’s association with organised crime and the maximum penalty of life imprisonment applicable to the offence with which he is charged, in particular as he is charged with serious offending involving a commercial quantity of methamphetamine with an estimated wholesale value of around $16 million.
Analysis and conclusion
37	This is an application for bail where, once more, the effects of the pandemic on the criminal justice system are thrown into sharp relief by the reality that an accused person, such as this applicant, will likely spend in excess of three years on remand.  In this case, a realistic estimate of the delay is 3½ years. 
38	I agree that such a delay must be seen in the context of the case as a whole including the seriousness of the offending.  However, unlike some of my brethren, I regard the potential for a 3½ year delay between arrest and trial as something more than “concerning”.  These are circumstances where the applicant proposes to contest his guilt and where the law presumes his innocence.  These are not just words; they are meaningful principles.  The applicant will spend 3½ years on remand during a pandemic with all that that involves for prisoners.  Judicial comment on the complete unacceptability of such delays plays an important role in reminding the community of the seriousness of the problem.
39	In Re MJ, I was considering an application for bail by a person charged with murder.  That application failed.  In that case I was considering a delay likely to be of the order 2 years before that trial came on in this Court.  In that case, in refusing the application I said:
71.	Taking into account all the judicial explanations of the meaning of “exceptional circumstances”, I am not persuaded that in this case that they have been established. Taking the approach of the Court of Appeal in Roberts, I am not persuaded that the continued remand of the applicant will be productive of a future injustice. Although the applicant’s continued incarceration carries with it several difficulties which I do not underestimate, I do not understand that it is argued on behalf of the applicant that there will be, for example, unusual future hardship and mental distress over and above that.
40	In this case, the delay will be of the order of 18 months longer.  That is not a trifling matter.
41	Considering the other matters relied upon, in my opinion, a 3½ year delay from charge to trial coupled with the consequences of the COVID-19 pandemic for the prison population, does amount to exceptional circumstances which justify the grant of bail.
42	However, that is not the end of the matter.  Although the applicant has established exceptional circumstances, the next issue to be resolved is whether the respondent has established that the risk is of releasing the applicant on bail is unacceptable.  In my view they have for the following reasons:
(a)	The magnitude of the offending is sophisticated and very substantial, involving as it does drugs valued at something like $16 million, which will attract a very substantial sentence if guilty verdicts are reached;
(b)	I regard the prosecution case as quite a strong case notwithstanding the issues;
(c)	The applicant’s prior convictions and the current allegations seem to demonstrate a pattern of criminal conduct which is sophisticated and of a high level.  His previous sentence for similar offending may not have deterred him;
(d)	The applicant appears to have strong overseas connections and a significant incentive to flee notwithstanding his ties to Australia and Melbourne;
(e)	The proposed surety, being the wife of the applicant, has been previously involved in earlier offending, though not charged, and the amount offered as surety is in my view no way adequate to improve the chances of the applicant presenting for trial at the time he is required to do so;
(f)	I do not consider that there any bail conditions I can impose which will make this risk acceptable.
43	In those circumstances the application for bail is refused.