Re Hu
[2020] VSC 285
•21 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0101
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an application for bail by XI HU |
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JUDGE: | INCERTI J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2020 |
DATE OF JUDGMENT: | 21 May 2020 |
CASE MAY BE CITED AS: | Re Hu |
MEDIUM NEUTRAL CITATION: | [2020] VSC 285 |
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CRIMINAL LAW – Application for Bail – Applicant charged with causing an unauthorised impairment of an electronic communication – Charged with committing an indictable offence whilst on bail - Requirement to show compelling reasons – Whether compelling reasons shown – COVID-19 pandemic – Delay in proceedings due to pandemic – No criminal history – First time in custody – Length of time in custody likely longer than sentence – Whether unacceptable risk present - No unacceptable risk – Bail granted with special conditions – Applicant must notify informant of phone numbers, SIM cards and internet enabled devices – Applicant must undergo mental health assessment – Bail Act 1977, ss1B(1), 3AAA, 4A(3), 4D(1)(b) and 4E – Crimes Act 1958, s 247D and 465AA(9).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms B Franjic | Gallant Law |
| For the Respondent | Ms K Churchill | Office of Public Prosecutions |
HER HONOUR:
Introduction
This is an application for bail by Xi ‘Andrew’ Hu (‘the applicant’). He is charged with causing an unauthorised impairment of an electronic communication[1] and committing an indictable offence whilst on bail,[2] arising from events that are alleged to have occurred in November 2019 (‘the Ali matter’) involving distributed denial of service (‘DDoS’) attacks on the Chadstone Shopping Centre website. He was charged and remanded on 21 November 2019.
[1]Crimes Act 1958 s 247D (‘Crimes Act’). A person is guilty of an offence against this section if they cause any unauthorised impairment of electronic communication to or from a computer, know that the impairment is unauthorised and intend to impair electronic communication to or from the computer or is reckless as to any such impairment.
[2]Bail Act 1977 (Vic) s 30B (‘Bail Act’).
At the time of the alleged offending, the applicant was on bail in respect of three charges of causing an unauthorised impairment of an electronic communication and failing to comply with an order to provide assistance in respect of a computer or data storage device (‘the Owen matter’).[3] He was arrested and charged with these offences on 29 October 2019 and released on police bail the same day.[4] He was subsequently charged by the same informant with two additional counts of unauthorised impairment of an electronic communication on 8 May 2020. Bail has not been revoked in the Owen matter.
[3]Crimes Act s 465AA(9).
[4]Affidavit of Lauren Cassimatis in support of an application for bail, affirmed 4 May 2020, Exhibit LC-2, Exhibit LC-4 (‘Affidavit in Support’); Affidavit of Nadia Maree Deltondo in response to an application for bail, sworn on 15 May 2020, Exhibit NMD-3 (‘Affidavit in Reply’).
As the applicant is accused of committing an indictable offence in the Ali matter while on bail for indictable offences in the Owen matter, it is common ground between the parties that bail must be refused unless the applicant can satisfy this Court that a compelling reason exists that justifies the grant of bail.[5] The respondent concedes that it is open to the Court to find that a compelling reason exists, primarily on the basis of the substantial delay in the progress of the matter, in part due to the COVID-19 pandemic. The central issue in this matter is therefore whether there is an unacceptable risk that the applicant would, if released on bail, engage in the conduct outlined in s 4E of the Bail Act 1977 (‘the Act’).
[5]Bail Act ss 4AA(3), 4C(1A), 4C(2), sch 2 item 1(a).
On 6 January 2020, the applicant was refused bail in the Ali matter at the Melbourne Magistrates’ Court on the basis that he failed to show a compelling reason justifying the grant of bail. Both the Ali and Owen matters are next listed for committal mention on 22 June 2020 at the Melbourne Magistrates’ Court.
In addition, on 1 February 2020, following his arrest in the present matter, the applicant was charged on summons with theft and going equipped to steal (‘the Mason matter’). Those offences are alleged to have occurred at Chadstone Shopping Centre on 18 October 2019, being the month prior to the alleged offending in the present matter. The Mason matter is next listed for mention in the Moorabbin Magistrates’ Court on 1 December 2020.
The alleged offending
The Owen and Mason matters
By way of background, in the Owen matter, it is alleged the applicant was responsible for two DDoS attacks on Aussie Broadband’s servers between 27 and 29 June 2019 in retaliation for the termination of his customer account. These attacks disrupted Aussie Broadband’s ability to provide internet connectivity to customers across Australia and prevented the internet service provider’s website from operating for 40 hours, causing a loss of approximately $250,000 in sales revenue. It is alleged that the attacks were preceded by Aussie Broadband terminating the applicant’s service due to non-payment and reports of spam from the applicant’s account.
On 18 October 2019, the applicant was suspected of shoplifting and was detained by security staff at the Kathmandu store at Chadstone Shopping Centre. Police attended the store and arrested the applicant. A search of his bag located a pair of Kathmandu shorts, a number of magnets, two screw drivers and a small pick. A price tag was also found in his pocket. He was interviewed and denied having engaged in theft or having items in his possession for use in the course of theft. He was subsequently released pending summons.
The following day, a series of DDoS attacks were launched on Chadstone Shopping Centre’s website and enquires email inbox, while the Centre’s security and main phone lines received a large volume of incoming automated phone calls. The phone calls continued until 29 October 2019 and caused Centre Management to block all private numbers from its phone system, preventing legitimate callers such as local police from placing calls to the Shopping Centre. Members of the public contacted Chadstone Shopping Centre stating that they had received text messages asking them to call the Centre’s security department. In addition, Kathmandu’s customer service phone line and several Kathmandu stores, including the Chadstone outlet, received a large number of automated calls during this period. Kathmandu was also subject to two DDoS attacks across three of its websites during this time.
Inquiries revealed that these phone communications originated from four mobile numbers, each of which had either made calls, or received or sent text messages to the applicant’s registered mobile number. Each of these mobile numbers were found to be active within the vicinity of Ringwood during the relevant period.
A search warrant was executed at the applicant’s Ringwood residence on 29 October 2019 which located a number of computers, servers, mobile phones, sim cards and storage devices believed to be connected to the above attacks. The applicant refused to assist investigators to access several of these devices, notwithstanding that he had been made subject to an order under s 465AA of the Crimes Act 1958 requiring that he provide assistance to investigators in relation to accessing the devices.
The applicant was arrested and interviewed. During his record of interview, he denied performing DDoS attacks on the Aussie Broadband and Chadstone Shopping Centre websites but admitted to installing software on multiple mobile phones to cause a large volume of calls to be placed to the Shopping Centre. He stated that he did so because he had been treated unfairly by security staff when detained for shoplifting. At stated, he was charged and released on police bail on 29 October 2019, with conditions including that he only access the internet for legitimate work or other lawful purposes, or to access banking or government services.[6] He remains on bail in respect of those charges.
[6]Affidavit in Support Exhibit LC-2, Exhibit LC-4; Affidavit in Reply Exhibit NMD-3.
The Ali matter
Between 13 and 21 November 2019, a Chadstone Shopping Centre webpage dedicated to booking Santa photos received a large volume of traffic, causing the server hosting the page to stop responding and the site to be rendered unavailable. The Centre’s webpage used for booking shuttle bus services between Melbourne and Chadstone also received increased traffic, causing it to be disabled.
Between 14 and 15 November 2019, Chadstone Shopping Centre also received a flood of traffic to its main website, with access to website content hosted externally by Amazon Web Services peaking at 72 million requests per minute, compared to its ordinary traffic of 500 requests per minute. The server scaled to meet the demand of the additional traffic, resulting in a substantially increased monthly bill of $30,000 for Amazon Web Services. For comparison, the usual monthly cost to the Shopping Centre is around $300.
Subsequent inquiries linked the IP address associated with these DDoS attacks to the domain name ‘securecloud.peakamplify.com’. At the time, the applicant was employed as an information technology worker for Peak Insight Pty Ltd. Forensic examination of a server located at the applicant’s address revealed he was in possession of various login credentials for Peak Insight’s websites.
On 21 November 2019, a search warrant was executed at the business address of Peak Insight. The applicant was located at his desk with his work laptop open. Police viewed his laptop and found two open sessions on his screen, one of which showed outbound traffic of approximately five gigabytes indicative of a DDoS attack. Police reviewed the history of commands entered into the second open session which revealed outbound requests to the Chadstone Shopping Centre Santa photo booking website. Police ended both sessions and contacted Chadstone Shopping Centre staff who confirmed that all ongoing DDoS attacks ceased following the execution of the search warrant.
A further search warrant was executed at the applicant’s home address, which located documentation concerning the applicant receiving ongoing treatment for depression and sleep difficulties. He was conveyed to the Melbourne West Police Station for interview, where he denied launching an attack on the Chadstone Shopping Centre website. He was remanded in custody.
On 28 January 2020, the Owen matter charges were uplifted to the Magistrates’ Court indictable stream to correspond with the Ali matter. On 1 February 2020, the applicant was charged on summons in relation to the alleged theft at Kathmandu on 18 October 2019.
On 11 May 2020, the hand-up brief in the Owen and Ali matters was served on the applicant. The Owen matter brief included two additional charges of unauthorised impairment of an electronic communication for alleged DDoS attacks in 2018 against The Blind Factory, where the applicant had formerly worked before being made redundant, and Pentana Stanton Lawyers, a firm that had represented the applicant’s former wife in their divorce proceedings.
Digital analysis of items seized under warrant in the Owen and Ali matters is ongoing.
The applicant
The applicant is 34 years old. He travelled to Australia from China on a student visa in 2006 and has lived in Australia continuously since that time. He became an Australian citizen in 2010. He is estranged from his ex-wife and child who live in China.
He has maintained employment throughout most of his adult life in the information technology industry. He was employed as a senior network developer at Peak Insight Pty Ltd for approximately two years prior to his remand.
The applicant has no prior criminal history and the current remand period represents his first time in custody. He is currently treated for depression, having been first prescribed antidepressant medication in late 2016.
The applicable law
Section 4A(3) of the Act relevantly sets out that the ‘show compelling reason’ test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence. As stated, included in the definition of ‘Schedule 2 offence’ is an indictable offence that is alleged to have been committed while on bail for another indictable offence.[7] It follows that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[8] The burden of satisfying the Court as to the existence of a compelling reason rests with the applicant.[9]
[7]Bail Act sch 2, item 1(a).
[8]Ibid ss 4AA(3), 4C(1A).
[9]Ibid s 4C(2).
In considering whether a compelling reason exists, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[10]
[10]Ibid s 4C(3).
Meaning of compelling reason
The meaning of ‘compelling reason’ was considered by the Court of Appeal in Rodgers v The Queen.[11] Drawing on a number of decisions delivered by this Court, the Court summarised the principles to be applied in considering the compelling reason test as follows:
(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention is not justified.
(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing – a reason which is ‘difficult to resist’.[12]
[11][2019] VSCA 214.
[12]Ibid [43] (Beach, Kaye and Ashley JJA) (citations omitted).
In the present matter, the applicant primarily relies on delays occasioned by the COVID-19 pandemic coupled with his lack of criminal history to demonstrate a compelling reason justifying the grant of bail.
In Re Diab,[13] Beach JA summarised the principles emerging from recent case law on the way in which the COVID-19 health crisis may be relevant in applications for bail. In the context of an application falling into the higher-threshold ‘exceptional circumstances’ category, his Honour explained that:
(1)Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
(2)The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
(3) The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4)In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.[14]
[13][2020] VSC 196.
[14]Ibid [38], citing with approval Re Broes [2020] VSC 128 [35]-[42] (Lasry J); Re McCann [2020] VSC 138 [39]–[40] (Lasry J); Re Tong [2020] VSC 141 [33]–[34] (Tinney J); Re El-Refei (No 2) [2020] VSC 164 [17]-[27] (Incerti J); Re Velluto [2020] VSC 188 [47]–[48] (Tinney J); Re Nicholls [2020] VSC 189 [32]–[39] (Incerti J).
In Re Guinane,[15] Tinney J found compelling reasons justifying the grant of bail, based on factors including significant delay and ‘increasingly onerous and restrictive conditions’ of remand caused by the COVID-19 health crisis and the risk that the applicant would spend more time on remand than any eventual sentence he would receive.[16] Similarly, in Re Ashton,[17] Elliott J found that compelling reasons were established given delays in setting down a committal hearing and time in custody being rendered ‘significantly more difficult than usual’ due to COVID-19 restrictions,[18] together with other factors including the applicant’s limited criminal history.[19]
[15][2020] VSC 208.
[16]Ibid [29]–[30], [32], [43].
[17][2020] VSC 231.
[18]Ibid [59]-[60], quoting Re Diab [2020] VSC 196 [38].
[19]Ibid [67].
If the Court is satisfied that a compelling reason exists that justifies the grant of bail, it must then apply the ‘unacceptable risk test’ pursuant to s 4D(1)(b) of the Act. In accordance with ss 4E(1) and 4E(2) of the Act, the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail –
(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.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
When interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[20]
[20]Bail Act s 1B(2).
The applicant’s contentions
The applicant relies upon the following matters in combination to demonstrate the existence of a compelling reason justifying the grant of bail:
Lack of criminal history
The applicant has no prior convictions. The present remand period represents his first time in custody. The applicant submitted that this is a significant factor in favour of the grant of bail.
Length of time in custody if bail refused and likely sentence
The applicant has been in custody since 21 November 2019. The hand-up brief in this matter was originally due to be served by 10 February 2020, but the prosecution successfully sought an extension of time to 11 May 2020. In addition, it is noted that approximately 190 electronic devices were seized from the applicant’s home that each require forensic analysis. On this basis, the applicant anticipated that the evidentiary material produced in this matter will be voluminous and will take time to properly consider.
The matter is next listed for committal mention on 22 June 2020. The applicant submitted that unprecedented delays and uncertainty produced by the COVID-19 pandemic means that the committal mention may not proceed on this date. He submitted further that there is uncertainty around how long he will have to wait for a committal hearing and contends there is little prospect that one will be listed this year. He anticipated that a trial may not occur until 2022. It was submitted that this delay is a significant factor in favour of granting bail.
In addition, the applicant submitted that, having regard to the nature of the alleged offending and his lack of criminal history, there is a real prospect that his time spent on remand will substantially exceed any sentence he may receive if found guilty. In this regard, I note that there appears to be no published sentencing decisions in relation to the principal charge of causing an unauthorised impairment of an electronic communication, nor sentencing statistics published by the Sentencing Advisory Council for this particular offence. However, in the matter of Bogers v Western Australia,[21] Fiannaca J makes reference to a bail applicant’s previous conviction for three counts of unauthorised impairment of an electronic communication pursuant to s 477.3 of the Criminal Code Act 1995 (Cth). That provision is in similar terms to the Victorian offence, and as in s 247D of the Crimes Act 1958, it also carries a 10 year maximum penalty. In Bogers v Western Australia, the applicant had used an off-shore website to flood the Western Australian Police email system with tens of thousands of spam emails on two occasions and the New South Wales Police email system on one occasion, impairing those systems for some time.[22] He was subsequently sentenced in the District Court of Western Australia to a total of 12 months’ imprisonment fully suspended with an adjourned undertaking to be of good behaviour for 12 months.
[21][2017] WASC 244.
[22]Ibid [59].
COVID-19 and onerous conditions of custody
The applicant submitted that he has limited access to visits and spends the majority of his time locked in his cell pursuant to the Metropolitan Remand Centre’s COVID-19 response. Since being on remand, he has completed a number of courses, including mental health and occupational training programs, however such programs are no longer operational due to COVID-19 restrictions.
Stable accommodation and ties to the jurisdiction
The applicant’s mother, Lanlan Cheng, signed a lease on the applicant’s behalf on 22 April 2020 for a rental property located at 13 Clover Avenue, St Albans.[23] If granted bail, the applicant proposes to reside at this address. In addition, the applicant owns an investment property in New South Wales that is currently tenanted. He pays approximately $1,700 per month in mortgage repayments and receives $540 a week in rental income from that property.
[23]Affidavit in Support (note 4) Exhibit LC-7. The applicant’s mother was able to sign the lease on his behalf as she was granted power of attorney by the applicant on 17 January 2020. Ibid Exhibit LC-6.
Strength of the prosecution case
This application for bail was made prior to service of the hand-up brief in the Ali and Owen matters. At the timing of making the application, the applicant conceded that the case against him is not weak but submitted that a proper assessment would depend on an analysis of the evidence.
Special vulnerability
Documentation recovered from the applicant’s home discloses that he was being treated for depression and sleep difficulties at the time of the alleged offending. The applicant continues to take antidepressant medication in custody.
The respondent’s contentions
The respondent submitted that having regard to the uncertainty and delay occasioned by COVID-19, the Court may find that a compelling reason exists that justifies the grant of bail in the present application. However, the respondent opposes bail on the basis that the applicant poses an unacceptable risk of committing further offences whilst on bail.
In response to the applicant’s submissions in support of bail, the respondent contends that as the hand-up brief has now been served, the prosecution case can be properly described as strong. The respondent notes that digital evidence of the applicant’s involvement in the DDoS attacks recovered from his devices shows these to have been systematic, premeditated and sophisticated. Further, it is submitted that the applicant’s alleged offending is serious and has caused significant financial hardship to the victim organisations, including approximately $250,000 in losses to Aussie Broadband and increased costs to Chadstone Shopping Centre of approximately $46,315 in hosting services alone. The respondent advises that both organisations hold concerns that the applicant will continue his offending behaviour if released on bail and may seek to retaliate against them in particular, given that he has shown a willingness to retaliate the last time he was released on bail.
The respondent submitted that the applicant poses an unacceptable risk of committing an offence whilst on bail, noting the following:
·He is alleged to have commenced DDoS attacks against Chadstone Shopping Centre the day after he was released pending summons for an alleged theft from Kathmandu;
·His bail in the Owen matter included strict conditions that he not use anonymising web services and only access the internet for legitimate work or other lawful purposes, which he is alleged to have breached within two weeks;
·He is alleged to have refused to cooperate with an order under s 465AA of the Crimes Act 1958, including having placed glue on his fingers and thumbs to avoid unlocking his mobile phone with his fingerprint, and failing to provide valid passwords to open other devices;
·He has previously opened phone and internet accounts using false names and has utilised cloud infrastructure hosted by international providers and virtual private networks and other anonymised network connections to commit offences; and
·He has shown a disregard for court orders and pride in attracting the attention of law enforcement, noting his statement that the execution of a search warrant at his home in October 2019 by Victoria and Australian Federal Police was a sign of accomplishment.
The respondent submitted that no conditions of bail seeking to restrict the applicant’s use of computers, phones or the internet are capable of reducing his risk of reoffending to an acceptable level.
Analysis
The applicant must show compelling reason exists that justifies the grant of bail. It is conceded by the respondent that the court may find that a compelling reason exists that justifies the grant of bail in the present application.
In any event, even if I am satisfied that the applicant has demonstrated that compelling reason exists, the respondent submitted that the applicant poses an unacceptable risk of committing further offences while on bail.
At both stages of the analysis, the court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act. Moreover, the court is required to interpret and apply the Act having regard to the matters set out in s 1B of the Act which include:
(a) maximising the safety of the community and persons affected by the crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty.
The applicant bears the burden of satisfying the court as to the existence of compelling reason. The prosecutor, however, bears the burden of satisfying the court as to the existence of a relevant risk and that the risk is an unacceptable risk.
A number of matters relied upon by the applicant are favourable to him so far as his application for bail is concerned. Specifically, stable accommodation, the lack of a criminal history, that this is his first time in custody, the length of time in custody if bail is refused compared to likely sentence, the impact and likely delay caused by the outbreak of the COVID-19 pandemic, the onerous conditions in custody due to COVID-19, and his having spent six months in custody which is likely to have had a salutary effect on the applicant and reduce his risk of reoffending. These are all matters that fall in the applicant’s favour. I consider that the applicant has put forward a strong case in seeking to discharge the onus resting on him on establishing compelling reason, and I am all the more willing to accept the test has been met as a result of the fair concession made by the respondent in that regard.
Turning to the question of unacceptable risk, I am again required to have regard to the surrounding circumstances in determining whether the respondent has discharged the onus resting on them. The question of unacceptable risk was described by counsel as the ‘real battleground’ in this application.[24] The alleged charges are rare and counsel for the applicant and respondent could not direct the Court to any similar cases or sentencing guidelines. Central amongst the matters to which I have regard is the lengthy delay likely of the resolution of the charges, in light of the COVID-19 issues and the applicant’s unchallenged contention that his time spent on remand will substantially exceed any sentence he may receive if found guilty.
[24]Transcript of Proceedings, Re Hu (Supreme Court of Victoria, S ECR 2020 0101, Incerti J, 20 May 2020) 7.3-7 (B Franjic) (during argument) (‘T’); T15.26-31 (B Franjic) (during argument); T20.19-21 (K Churchill) (during argument).
While the offending does not have a violent element, it is objectively serious. A bail application is not an occasion for the court to determine factual disputes that are being litigated at trial, however, the strength of the prosecution’s case is a relevant factor. It is conceded by the applicant that the case against him is not weak.
Weighing against the applicant is the real concern that the applicant is someone who is likely to commit similar offences if he is released on bail. The evidence is that the applicant breached his bail conditions in the Owen matter within two weeks of bail being granted. Further, the applicant is alleged to have commenced DDoS acts against Chadstone Shopping Centre the day after he was released pending summons for an alleged theft from Kathmandu. The applicant’s breaches of the bail conditions are troubling. There is no explanation why the applicant engaged in the alleged offending. It was said the applicant targeted cyberattacks against people he has ‘perceived slights.’[25] Regrettably the Court has no information about the applicant’s mental health, other than that he is being treated for depression and that he was suffering from depression at the time of the alleged offending. The applicant does not appear to have any support in the community from family or friends. His mother who organised his lease lives in China.
[25]T23.9-11 (K Churchill) (during argument).
An important factor in my acceptance of the applicant’s position is his personal circumstances, including that he has no history of criminal offending. I note that the applicant has now spent approximately six months on remand. This will hopefully serve as a deterrent to the applicant breaching any bail conditions.
Critically, in this case the material delay in the progress of the prosecution of criminal charges weighs heavily in favour of granting bail. Whilst it is not of itself a reason to grant bail, it is a surrounding circumstance which is particularly relevant in this case. In addition to the delay arising out of COVID-19, I accept that the time in custody is more difficult than usual.[26] Some restrictions have been imposed in prison that would not otherwise have been imposed if it was not for the COVID-19 pandemic. Relevantly, the applicant is not able to engage in any mental health and occupational training program as they are no longer operational due to COVID-19 restrictions. I note that the applicant has a history of suffering from depression, and it is of benefit that he can access ongoing treatment and counselling services if granted bail.
[26]Re Diab [2020] VSC 196 [41].
Having carefully considered all the surrounding circumstances, and in spite of the serious nature of the applicant’s alleged offending, I am of the view that the respondent failed to establish the existence of an unacceptable risk. I say with some caution that the imposition of very stringent conditions will suffice to reduce the risk posed by the applicant to the level of being acceptable in the particulars of this case.
I note that in the current climate it is not appropriate to completely remove or restrict the applicant’s access to the internet. The COVID-19 pandemic limits the activities that the applicant or any member in the community can engage in and makes him more housebound than in normal circumstances. He will need to use a computer and a mobile phone for communication purposes, as well as for most activities of daily living, such as paying bills, searching for employment, tele meetings with medical services, shopping, and so on.
Further, I consider an important condition is one which provides the applicant with professional support to explore the reasons for the alleged offending and to help him develop strategies to avoid reoffending in the future.
Conclusion
The Court orders that:
XI HU be admitted to bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Magistrates’ Court on 22 June 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
2. He reside at 13 Clover Avenue, St Albans VIC 3021, and not change that address without the leave of the Court.
3. He not to contact any witness for the prosecution, except for the informant.
4. He notify the informant twenty-four hours before obtaining any new phone numbers or SIM cards and provide details of any new phone numbers or SIM cards to the informant within twenty-four hours of issue.
5. He is to access the internet for only lawful purposes, including:
(a) work purposes, including seeking employment;
(b) to access or make appointments for health services;
(c) to access, order or purchase nutritional, dietary or medical goods or services;
(d) to access educational services;
(e) to contact family, friends or for other social purposes through accounts registered to the applicant;
(f) to access banking services registered to the accused;
(g) to access government services for a lawful purpose; and
(h) or any other reason approved by the informant in writing.
6. He notify the informant of possession or ownership of any internet enabled device, including a mobile phone, computer or tablet.
7. He notify the informant of any internet connections provided to the property at 13 Clover Avenue, St Albans VIC 3021.
8. He, upon request by a police officer, present his internet enabled device(s) for inspection if that officer suspects, on reasonable grounds, that the applicant has committed an unauthorised impairment of electronic communications offence or other related offence.
9. He not to use any anonymising network services such as TOR or virtual private networks (VPNs) with the exception of legitimate work purposes.
10. He not to conduct any web or telephony vulnerability testing unless approved by the target organisation in writing, and to provide same to informant prior to conducting same.
11. He attend his General Practitioner or other health professional for a mental health assessment within fourteen days of release on bail.
12. He not to attend Chadstone Shopping Centre, any other Vicinity Shopping Centres or any Kathmandu Clothing Stores.
13. He not to leave the State of Victoria without prior permission from the informant.
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