Re Warda [2021] VSC 323 (7 June 2021)

1 This is an application for bail by Addai Warda ('the applicant'). He was remanded in custody on 11 November 2020 on charges of trafficking a large commercial quantity of a drug of dependence (methylamphetamine);[1] knowingly dealing with the proceeds of crime;[2] and dealing with property suspected of being the proceeds of crime.[3] The informant is Detective Senior Constable Bianca Aitken of Victoria Police.

2 The applicant was refused bail on 23 April 2021 at the Magistrates' Court in Melbourne on the basis that he had failed to demonstrate exceptional circumstances that would justify a grant of bail. The Magistrate made no finding as to unacceptable risk. The applicant now applies for bail in this court.

3 The matter is next listed on 17 September 2021 at the Magistrates' Court in Melbourne for a contested committal.

4 Apart from these charges, the applicant has no other outstanding matters. He is, however, subject to an ongoing Australian Federal Police ('AFP') investigation as outlined in 'the respondent's contentions' section below.

5 The investigation leading to the applicant's arrest began in August 2020, when police attended the residential premises of co-accused, Takai Uluakiahoia, in Kilsyth for an unrelated family violence matter. In an unlocked garage, police identified a clandestine laboratory for the manufacture of methylamphetamine. As a result, a covert police operation was commenced.

6 On 11 November 2020, a covert operative collected Mr Uluakiahoia from his residence to facilitate the operative's purchase of one kilogram of methylamphetamine for $260,000. The two travelled to an address in Narre Warren North where they met with the other co-accused, Cheng Bin (also known as Benjamin or Ben) Fu.

7 The applicant was also present at the address seated in the driver's seat of a vehicle parked in the driveway. The covert operative entered the backseat of the vehicle, with Mr Fu standing near the open passenger door. The applicant allegedly handed the covert operative a package covered in layers of vacuum sealed plastic and foil labelled as 'green tea'.

8 The applicant (who is referred to as 'unknown male' in the transcript) and the covert operative (referred to as 'C.O. Mike') then had the following conversation regarding the package:

UNKNOWN MALE: IT'S SEALED UP THREE TIMES.

C.O. MIKE: OH, IS IT?

UNKNOWN MALE: YEAH, YEAH.

C.O. MIKE: CAN I OPEN IT?

UNKNOWN MALE: YEAH, YOU CAN.

C.O. MIKE: YEAH.

UNKNOWN MALE: DO YOU HAVE SCISSORS WITH YOU, IF YOU WANT?

C.O. MIKE: DO WE HAVE CUTTERS OR SCISSORS?

UNKNOWN MALE: STABBY THING. THAT'S THE FIRST THING. WE WERE SITTING AROUND (INAUDIBLE) SO THERE'LL BE ANOTHER SILVER FOIL, THEN IT'S BEEN SEALED AGAIN AND THEN SEALED AGAIN.

C.O. MIKE: FUCK, SEALED WELL.

UNKNOWN MALE: YEAH, BRO.

C.O. MIKE: THAT'S HOW IT COMES?

UNKNOWN MALE: YEAH.

C.O. MIKE: NUH, GOOD, MAN.

UNKNOWN MALE: UM, PRETTY SURE THERE'LL BE ONE MORE SEAL OR THAT'S THE LAST ONE.

BEN: (INAUDIBLE)

UNKNOWN MALE: YEP, THAT'S THE LAST ONE.

C.O. MIKE: THAT'S THE LAST ONE?

UNKNOWN MALE: DID YOU - DID YOU HEAR THAT SHHH?

C.O. MIKE: YEAH. THAT'S THE SEAL. YEAH, SWEET, ALL RIGHT. I'M GOING TO GET THE CASH, MAN.

9 During the conversation, the covert operative used his car keys to open the package, revealing a crystal substance inside. The covert operative then returned the package to the applicant and left with Mr Uluakiahoia to collect the money to finalise the transaction.

10 The applicant and two co-accused were arrested by police shortly thereafter.

11 The package was recovered from the applicant's motor vehicle. The substance was analysed and confirmed to contain 999.4 grams of methylamphetamine with a purity of 82%.

(a) Cheng Bin Fu is remanded in custody. His application for bail was refused on 14 December 2020 at the Magistrates' Court in Melbourne on the basis that he failed to demonstrate exceptional circumstances. Mr Fu is said to be the second in charge of an outlaw motorcycle group.

(b) Takai Uluakiahoia is remanded in custody and has not made an application for bail.

13 The applicant and co-accused Fu's matters are listed for contested committal on 17 September 2021 at the Magistrates' Court in Melbourne. Co-accused Uluakiahoia's matter is listed for further committal mention in approximately six weeks' time.

14 The applicant is 22 years of age. He was born in September 1998 in Baghdad, before migrating with his family to Australia at the age of three.

15 The applicant reports struggling academically at school. He completed the Victorian Certificate of Applied Learning and has subsequently maintained a consistent employment history. He worked casually at a McDonald's restaurant, as a delivery driver for Victorian Transport Group and, most recently, as an apprentice carpenter.

16 In about July or August 2020 the applicant was injured in several workplace accidents and he left his apprenticeship around the same time. He was unemployed following this until his arrest in November 2020.

17 The applicant reports having substance use issues since his teenage years, and at the time of his arrest was using multiple drugs of dependence. Whether, in fact, the applicant has substance abuse issues or was inventing that problem in order obtain release on bail via a residential treatment scheme was an issue which arose on the application.

18 The applicant has no prior criminal history but received a caution from police on 7 November 2019 regarding a small amount of green vegetable matter found in his vehicle.

19 The Court is required to take into account the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) ('the Act') when applying and interpreting the Act.

20 The applicant is required to demonstrate exceptional circumstances justifying the grant of bail under s 4AA(1) of the Act as he is charged with a Schedule 1 offence.[4]

21 It follows that that bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify the grant of bail.[5] In considering whether exceptional circumstances exist, the Court must take into account the surrounding circumstances, including, but not limited to, those in s 3AAA(1) of the Act.[6]

22 If satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[7] Bail must be refused if the respondent satisfies the Court that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable one.[8]

23 In applying the unacceptable risk test, the Court must again 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.[9]

Youth, no criminal history and first time in custody

24 The applicant is 22 years of age with no prior criminal history apart from the police caution to which I have earlier referred. The current period on remand represents his first time in custody. These are matters of significance.

Nature of the alleged offending and strength of the prosecution case

25 It was noted, on the applicant's behalf, that the alleged offending is serious and it was conceded that the prosecution case on trafficking simpliciter (uncharged offence) is moderate in strength. However, it was submitted that the prosecution case for trafficking in a large commercial quantity, or in a commercial quantity (uncharged offence), is speculative.

26 In relation to the strength of the prosecution case for the charged offence of trafficking in a large commercial quantity, and the offence of trafficking in a commercial quantity, the applicant submitted that case against him is weak. This was put on the basis that:

(a) the applicant did not admit to knowledge of the nature or weight of the substance;

(b) although he handled the package, there is no evidence that he was aware what proportion of the package's weight was a drug of dependence, as opposed to the total weight of the package; and

(c) his professed familiarity with the sound that another package once made does not allow for an inference as to the nature or weight of the package in question.

27 The applicant noted that the prosecution case is moderate in strength for the (uncharged) offence of trafficking simpliciter. As the applicant did not admit to knowing the substance was a drug of dependence, or to seeing it, the case regarding his knowledge is circumstantial.

28 Further, it was submitted that the applicant was a low-level participant in the alleged offending on the basis that:

(a) it appears he was not trusted with sole custody of the drugs, with Mr Fu standing close by;

(b) his role was described by a co-accused as 'just a runner'; and

(c) contextual discussions between the covert operative and the co-accused make clear that the other two co-accused were the decision-makers.

29 It was also relied on that the applicant is not an alleged member of an outlaw motorcycle group, unlike Mr Fu.

Substance use and availability of residential rehabilitation

30 In a letter dated 2 March 2021, Luke Armstrong, a psychologist, assessed the applicant as having opioid use disorder, stimulant use disorder, cannabis use disorder and a probable undiagnosed learning disorder. That letter states, as extracted from pages 5-7, the following:

[The applicant's] trajectory of drug abuse is consistent with flaws in his character, specifically problems in [the applicant's] early development remained undetected or misunderstood by family. In the absence of support and treatment, [the applicant] turned to a deviant peer group and since 14-15 years of age has engaged in substance use as a form of self-medication.

[The applicant] disclosed to the author that he watched his father fall apart upon his arrest. [The applicant] recalls he has never seen his father cry, and doing so has been a jolting experience for [him]. [The applicant] concedes he now fully comprehends the gravity of his situation. Whilst remand has been a significant motivator for [the applicant] to seek treatment, [he] reports that there has been significant reconciliation with his father and [the applicant] reports "I want to make him happy" by attempting to better himself through rehabilitation.

[The applicant] was candid in acknowledging however that he experiences ongoing cravings. [The applicant] maintains he has not used substances in prison and points to two urinalysis to confirm his self-reports.

In view of [the applicant's] relatively young age and candidness of ongoing cravings, if [he] were granted bail a more restrictive form of treatment, such as provided by residential treatment would be recommended, which includes at least weekly Urinalysis.

Upon completion of residential treatment, an outpatient form of treatment could then be continued in the community. It is critical for [the applicant's] recovery that he be provided with opportunities to combine learned interventions or insights within the community, i.e. via supported employment; a supported family environment and positive peer relationships, i.e. NA or related peer, treatment groups.

In my view [the applicant] would present as a good candidate for rehabilitation. Factors considered in my opinion were based on the following:

1. Whilst deviant beliefs underpin addiction, [the applicant's] profile would suggest that his deviant belief systems are secondary to the development of a serious drug abuse problem.
2. [The applicant] is also young and remains well connected to his family.
3. [The applicant] has also shown that he can remain employed and is motivated to try again.
4. Initial residential treatment would in my view adequately contain [the applicant's] mental health problems.

31 On the hearing of the application, Mr Armstrong gave evidence and was cross-examined. In effect, the point being made in testing his conclusions was that nothing the applicant told him was independently verifiable. The possibility that the applicant had contrived his drug condition was raised during that evidence. Mr Armstrong rejected that suggestion and gave evidence that he was satisfied the applicant's recounting of his history was honest and genuine and that there was a problem to be solved which would be assisted by residential treatment.

32 A letter from Lindi Nankin, a social worker employed by Arrow Health, dated 29 March 2021 states that, following an assessment, the applicant was found to be suitable to participate in the residential treatment program:

Given [the applicant's] expressed desire and demeanour during our conversation, along with the clinical analysis of his assessment, he is deemed suitable for the Arrow Health residential treatment program. His admission to our facility at [redacted] would be conducted directly from custody, should the Court allow.

33 That letter also provides the following details regarding the facility and treatment program:

The property at [redacted], Victoria, is supervised by staff 24/7. We hold a maximum of 20 residents and Arrow Health has a good relationship with the Kyneton Police who assist us when required. The facility has CCTV, and should a client abscond or return a positive result to a urine sample it is quickly brought to the attention of staff and management. Our policy is to notify the informant, the client's lawyer and the family as well as contacting Kyneton Police immediately should a custodial client leave the program.

It is expected that [the applicant] would be in residential treatment for 90 days, should he be granted bail. He would then be eligible to engage with the Arrow Health Aftercare Program at our Armadale Clinic for 6 weeks to enhance the prospects of his long-term recovery from substance use disorder. This aspect of the program includes attendance at facilitated support groups at our Armadale clinic on Monday, Wednesday, and Friday mornings along with regular attendance at 12-Step meetings. Throughout the aftercare aspect of the program, as well as following the program stipulations, [the applicant] will be required to provide 2 supervised urine drug screens per week.

34 A further letter from Arrow Health dated 13 May 2021 confirms that a bed would be available to the applicant on 24 May 2021.

35 Since the respondent had raised the prospect that the applicant was contriving his claimed personal drug issues, it was determined that the application should be adjourned so that Ms Nankin, who is no longer is employed by Arrow Health, could give evidence. I will return to this issue.

36 Apart from all these considerations, it was proposed that the applicant return for a judicial monitoring hearing after he completes the residential rehabilitation program. The applicant lived in the family home in Roxburgh Park prior to his arrest. According to the letter from Arrow Health, he proposes to return to that address after discharge from residential treatment.

37 The applicant submitted that a long delay in this matter is all but inevitable given the backlog associated with the Covid-19 pandemic. This matter is next listed for a contested committal on 17 September 2021. It was submitted that any trial would take place a considerable amount of time afterwards.

38 I was informed during the application that it was agreed between counsel that the delay from the applicant being charged until his trial will be of the order of three years.

39 It was submitted that there is a 'realistic likelihood' that the applicant will be acquitted of the offences of trafficking in a large commercial quantity or a commercial quantity (uncharged), and a 'realistic possibility' that he will be acquitted of trafficking simpliciter (also uncharged). As such, it was submitted that there is a genuine danger that the applicant will serve more time in custody on remand than any sentence he may receive.

40 The applicant's father proposes to offer a surety of $300,000 in support of bail by way of equity in property, being the family home.

41 A letter dated 4 March 2021 from the applicant's previous employer, Ali Uyaniker, a director of Victorian Transport Group, indicates that he has known the applicant for seven years and employed him for two of those years.

42 The letter states that if the applicant is released into the community, he will be given a permanent position within the company with an immediate start after his release.

43 In dealing with the respondent's assertion that the applicant would pose an unacceptable risk of further offending, the applicant relies on several matters including:

(a) his strong ties to the jurisdiction through his family and being an Australian citizen;

(b) the offer of a substantial surety;

(c) no realistic path to flee Australia given the current travel restrictions associated with the pandemic;

(d) no adverse bail history;

(e) his initial release would be to a supervised residential facility;

(f) he accepts conditions of bail relating to phone or internet access, a curfew and reporting to police, making him visible to police;

(g) he understands that any breach of his bail conditions would be reported to police; and

(h) he accepts that his abstinence from drug use must be maintained in the community and will be monitored through urine screens.

44 The applicant proposes conditions of bail related to:

(a) surrendering his passport;

(b) residing as an inpatient at Arrow Health;

(c) reporting to police daily;

(d) a surety;

(e) participating in treatment as directed by Arrow Health;

(f) not communicating with any co-accused;

(g) a judicial monitoring hearing upon completion of his residential rehabilitation program;

(h) only having one mobile phone; and

(i) providing the informant with the phone number within 24 hours of subscribing the account.

45 The respondent opposed the application for bail on the basis that the applicant had failed to demonstrate the existence of exceptional circumstances that would justify a grant of bail.

46 Additionally, the respondent contended there is an unacceptable risk that, if released on bail, the applicant would endanger the safety and welfare of any person, commit an offence while on bail or fail to surrender into custody in accordance with the conditions of bail. The emphasis at the application was on the risk of re-offending rather than flight.

47 The respondent disputed the applicant's contentions on the strength of the prosecution case as it relates to his knowledge and role in the transaction. It was submitted, based on the transcript extracts at [29] and [30] of the affidavit in opposition, that:

(a) the applicant was in possession of, and handled, the package. He would have known it contained more than 750 grams (which is the threshold for a large commercial quantity of methylamphetamine in mixed form);

(b) he had intimate knowledge regarding how it was packaged, explaining to the covert operative that it had been sealed in three different layers, and then discussed the noise that was made when the operative got through the final seal;

(c) he gave permission for the covert operative to open the package; and

(d) he remained in the motor vehicle with the covert operative throughout the transaction including when he opened it to reveal the crystal substance.

48 The respondent noted that it was a co-accused, rather than the covert operative, who described the applicant as a runner. The respondent further submitted that, even if the applicant was a runner, this role is significant to organised crime syndicates as it allows higher ranked members to continue drug trafficking activities whilst not risking apprehension by law enforcement agencies. In these circumstances, the respondent disputed the characterisation of the applicant's role as 'low level'.

49 The respondent submitted that whether the applicant is a member of an outlaw motorcycle group is of limited importance, when he is closely affiliated with the group and trusted to be involved in a drug trafficking deal worth $260,000.

50 The respondent also noted that the applicant's fingerprints were found on a one kilogram block of methylamphetamine located during the execution of a search warrant by the AFP on 10 December 2020. The packaging was Chinese brand green tea wrappers similar to the packaging of the methylamphetamine located in his vehicle on 11 November 2020. During that same warrant, the AFP also located 39 one kilo blocks of methylamphetamine packaged in the same way, as well as other drugs and $63,000 in cash. Charges have been laid against 'a person' in relation to that matter which is being prosecuted by the Commonwealth Director of Public Prosecutions, however, the AFP have advised that the applicant has not been charged and the investigation into his involvement is still ongoing. How that investigation will turn out remains to be seen and is of very limited relevance to this application.

51 The respondent also submitted that there is no independent evidence as to the nature, extent or severity of any substance abuse issues the applicant has. The limited evidence provided is based on the applicant's self-reporting to Luke Armstrong and Arrow Health. The respondent submitted that participation in the Arrow Health program cannot be said to have a demonstrable value to the applicant in the absence of such independent evidence. The respondent also holds concerns about who is funding the program, noting its expensive nature being of the order $14,000 for the first month and $12,000 for subsequent months. This issue was canvassed during the bail application and Arrow Health were unable to address funding concerns.

52 In relation to delay and likely sentence, the respondent submitted that the prosecution case is very strong and the alleged offence is a very serious example of trafficking in a large commercial quantity. It was disputed that delay is inordinate or justifies a finding of exceptional circumstances alone or in combination with the other factors put on the applicant's behalf. Trafficking in a large commercial quantity of a drug of dependence is a standard sentence offence, being 16 years imprisonment. If convicted, the applicant would receive a substantial term of imprisonment which will well exceed any time spent on remand.

53 In particular, the respondent has effectively submitted that the delay "must be weighed against the likely time in custody if found guilty and the Court has to assess, as best it can, a likely sentence". In my view that is a wrong statement of principle. A long delay represents injustice in any case. It may be that where a period on remand will far exceed the likely sentence, that circumstance will be all the more exceptional, but I do not accept that in an application like this, in order to judge whether the delay is an exceptional circumstance, I am required to assess the likely sentence in advance of any evidence being given, jury verdict on a trial and the hearing of a plea.

54 In the written material, the respondent's primary concern seemed to be that the applicant will fail to surrender into custody in accordance with the conditions of bail given the seriousness of the charges he faces. That concern paled on the hearing of the application. The respondent accepted that $300,000 is a significant surety, however, the respondent did not originally believe this will alleviate the risk of flight due to the potential lengthy term of imprisonment that the applicant faces for the matter with which he is charged and is under investigation. This is, of course, a common risk is applications like this. Based on the extent of his involvement in the current alleged offending, the respondent also contended that if released on bail the applicant will commit further offences, particularly drug-related offences, notwithstanding the surety. The respondent's tertiary concern was that the applicant will endanger the safety or welfare of any person by engaging in drug related offending.

55 The respondent submitted that the imposition of strict conditions of bail would not alleviate the risks asserted.

56 The allegations against the applicant are very serious as Mr Dickinson, counsel for the applicant, frankly acknowledged. The amount of drugs involved in this transaction coupled with the suspicion about the applicant's other connections are cause for considerable disquiet. The only real factual issue is the state of his knowledge about the transaction he was involved in. I take those matters into account.

57 However, in dealing with the issue of whether the applicant has established exceptional circumstances that would justify a grant of bail, another important consideration is the agreed period of a three-year delay between charge and a trial. This is yet another case where, despite the seriousness of the allegations, a long delay is a significant consideration, coupled with a number of other factors. Over the period of the Covid-19 lockdowns long delays between charge and trial have become commonplace; such is the effect of the pandemic. The fact that this occurs frequently does not reduce its exceptional quality bearing in mind that a person on remand for an extended period is presumed by the law to be innocent.

58 A three-year delay between charge and trial is a very substantial delay. I have previously expressed the view that three years in pre-trial custody is capable of amounting to an exceptional circumstance on its own.[10] Incerti J recently observed in Re Shea that "it is strongly arguable that a two and a half year delay, let alone three year delay, is one that, in and of itself, amounts to exceptional circumstances justifying bail."[11] As to that, I have also previously concluded:[12]

It is not a qualifying pre-requisite that a period of pre-trial delay can only be an exceptional circumstance if it exceeds the sentence that would be imposed upon a finding of guilt.

59 In addition, at the time of this application being dealt with, Victoria is half way through the second week of what is expected to be a two-week lockdown due to Covid-19. Given that trials have stopped, it is axiomatic that this will add further to the case backlog in the County Court, where this matter will be dealt with. It adds confidence, if that be the appropriate term, to the estimate of a three-year delay. I am prepared to accept that if the applicant's period of remand was three years, the sentence which would be imposed on him should he be found guilty even of the trafficking simpliciter charge might well exceed that time. It follows that the sentence that would be imposed on him should he be found guilty of the commercial or large commercial quantity trafficking charges would also exceed three years. However, for the reasons I have already given, I regard a three year delay in this case as capable of amounting to an exceptional circumstances in itself. There are also other matters to consider.

60 A more difficult issue is the proposal that the applicant enter into a 3-month residential drug treatment program with Arrow Health. I have outlined the proposal above. Luke Armstrong has been a psychologist for 21 years and has done many psychological assessments. He assessed the applicant for his suitability for residential rehabilitation. He gave evidence in detail about that assessment including the material available to him and the process by which he came to the conclusion that the applicant has a substance abuse problem which was amenable to residential treatment. In order to summarise the criticism being made of his evidence on the hearing of this application, I asked him:

HIS HONOUR: So Mr Armstrong, what's being put to me, and in turn to you, is that you've been hoodwinked, that there's no evidence that this man had any kind of drug problem, and that you've been completely hoodwinked by the applicant, and that your diagnosis or your assessment of him is fallacious because it's based on no evidence. What do you say about that?

MR ARMSTRONG: Look, Your Honour, if I was confronted with an individual within any context where I had reason to believe that the narrative was in any way fictitious, I'd be making immediate corroborative checks to - you know, if it's in a residential context, which is often when I've assessed people in the past, I'd be raising some major flags about, you know, what these discrepancies may or may not represent, and similarly, within a forensic or criminal context, even more so, knowing that there, you know, is potentially motivations to present in a particular way. If I had any question marks about the validity and reliability of this man's narrative, I would have been indicating that very, very strong, very quickly to his legal counsel and - and reporting that as such in any document that I was asked to provide. So I don't have those question marks about this particular client. I'm not suggesting that things like that don't happen, but it's not my opinion - well, it's my opinion that that wasn't the case in this circumstance.

61 That evidence was supported in a limited way by Ms Nankin, who I have already referred to and who gave evidence on the second day of the application. She only spoke with the applicant for an hour on the telephone and had no face to face contact with him, even by video link. That would surely make a proper assessment of him much more difficult. In effect, all she did was assemble information and then she and an un-named 'team' came to a conclusion about the suitability of the applicant for Arrow Health. Ms Nankin did not seem to have any particular expertise based either on her experience or qualifications. I did not find her very persuasive at all.

62 However, I have no reason not to accept the evidence of Mr Armstrong albeit that his assessment is based substantially on what the applicant told him. On the evidence before me, I have no factual basis to undermine his conclusion. As he said in his evidence, he has done a large number of these assessments and believes he is able to recognise when a person is dishonest in giving information. I therefore proceed on the basis that the applicant is dealing with substance abuse issues and will benefit from residential treatment with Arrow Health.

63 Apart from those matters, this is a case where the applicant is young and has no criminal history aside from a police caution in 2019. He has no matters outstanding though there is a risk that further charges will be laid in relation to other drug dealing.

64 The applicant would also appear to have strong family support, including a significant surety of $300,000.00.

65 By virtue of a combination of all those circumstances, I am persuaded that the applicant has established that there are exceptional circumstances in his case which would justify a grant of bail.

66 So far as the risk is concerned, although the charges the applicant faces are serious, it is difficult to see why that risk will not be diminished to an acceptable level by the proposed surety and by the imposition of strict conditions. The respondent does not rely on flight as a significant prospect given the current circumstances and prohibitions on most travel. There is virtually no history of connection with police in the applicant's past and, obviously, no history of previous non-compliance with bail orders. Much of the reasoning which led me to conclude that the applicant has established exceptional circumstances also results in the conclusion that the risk associated with his release is acceptable.

67 I will therefore grant bail to the applicant and make the following orders:

(1) The said Addai Warda ('the applicant') be admitted to bail upon his own undertaking with a surety in the amount of $300,000 by Fadhel Warda and with the following conditions:

(a) The applicant reside at the Arrow Health residential rehabilitation facility at [redacted] in the state of Victoria ('place of residence') until the completion of the 90 day residential rehabilitation program;

(b) The applicant not leave his place of residence between the hours of 8:00 p.m. and 6:00 a.m. ('curfew hours') unless in the company of an Arrow Health staff member;

(c) The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the informant Detective Senior Constable Bianca Aitken or her nominee, being an authorised member of Victoria Police;

(d) The applicant is to report to the Officer in Charge of Kyneton Police Station, or their nominee, every day between the hours of 9:00 a.m. and 6:00 p.m.;

(e) The applicant not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant;

(f) The applicant not contact, whether directly or indirectly, any of his co-accused;

(g) The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);

(h) The applicant provide the informant or her nominee with the results of any drug screens undertaken while on bail within 24 hours of the drug screen result becoming available, subject to the approval of Arrow Health;

(i) The applicant is not to possess or use more than one mobile phone. The mobile phone the applicant possesses or uses may not be a 'Blackberry' type mobile phone;

(j) The applicant is to provide the informant or her nominee with the phone number, IEMI number and any password or PIN of the mobile phone he possesses or uses within 24 hours of first having access to that mobile phone and notify the informant or her nominee of any change of password or PIN of that mobile phone within 24 hours of that change;

(k) The applicant is to produce the mobile phone he possesses or uses for inspection upon the request of the informant or her nominee;

(l) The applicant is to provide any password or PIN for the mobile phone he possesses or uses upon the request of the informant or her nominee;

(m) The applicant have only one internet account and provide the username and password details of that account to the informant or her nominee within 24 hours of having access to that account;

(n) In the case of the mobile phone the applicant possesses and uses and the internet account the applicant has and uses, neither the mobile phone nor the internet account are to have access to any encrypted applications;

(o) The applicant not leave the State of Victoria;

(p) The applicant not attend any points of international departure;

(q) Prior to his release on bail, the applicant is to arrange for the surrender of any passport or travel document of any nationality in his name or under his control to the informant or her nominee, and is not to apply for any other such documents until further order;

(r) The applicant is to appear:

(i) at this Court on Tuesday 31 August 2021 at 9:30 a.m. for judicial monitoring and consideration of his future residential arrangements; and

(ii) at the Magistrates' Court at Melbourne on Friday 17 September 2021 at 9:30 a.m.;

[1] Contrary to s 71 of the Drugs Poisons and Controlled Substances Act 1981 (Vic).

[2] Contrary to s 194(1) of the Crimes Act 1958 (Vic).

[3] Contrary to s 195 of the Crimes Act 1958 (Vic).

[4] See item 6(a) of Schedule 1 of the Bail Act 1977 (Vic) (trafficking in a large commercial quantity of a drug of dependence).

[5] Bail Act 1977 (Vic) ss 4AA(1), 4A(1A) and 4A(2).

[6] Ibid s 4A(3).

[7] Ibid ss 4A(4) and 4D(1)(a).

[8] Ibid s 4E(2).

[9] Ibid s 4E(3).

[10] Re Tofaris [2021] VSC 249 [45]; Re Jiang [2021] VSC 148 [60]; Re Boo [2020] VSC 882 [71]; Re Ning [2020] VSC 609 [58]; Re Ilpola [2020] VSC 578 [56]; Re Taylor [2020] VSC 146 [51]; Re McCann [2020] VSC 138 [39]; Re Broes [2020] VSC 128 [46].

[11] Re Shea [2021] VSC 207 [58].

[12] Re Yousuf [2021] VSC 272 [52].