Akhbari Sadiqi v The State of Western Australia [No 2]
[2020] WASC 134
•29 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: AKHBARI SADIQI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2020] WASC 134
CORAM: DERRICK J
HEARD: 30 MARCH 2020 & 29 APRIL 2020
DELIVERED : 29 APRIL 2020
FILE NO/S: INS 241 of 2018
BETWEEN: PORIA AKHBARI SADIQI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Applicant charged with murder - Application for bail under s 7B(3) and s 15(1) of the Bail Act 1982 (WA) – Whether bail may properly be granted having regard to questions posed in cl 1 of pt C of sch 1 of the Bail Act 1982 (WA) - Grant of bail on conditions including home detention condition
Legislation:
Bail Act 1982 (WA)
Result:
Application allowed
Applicant released on bail on conditions including home detention condition
Category: B
Representation:
Counsel:
| Applicant | : | Ms H E Prince |
| Respondent | : | Ms L E Christian SC |
Solicitors:
| Applicant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Akhbari Sadiqi v The State Of Western Australia [2020] WASC 111
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript)
Introduction
On 30 March 2020 I heard the applicant's application for bail. On 3 April 2020 I refused to release the applicant on bail on the conditions being proposed by him. However, I indicated that I was willing to consider releasing the applicant on bail on conditions that included a home detention condition under cl 3 of pt D of sch 1 of the Bail Act 1982 (WA) (the Act), the relevant proposed address for home detention being unit 8,12 Murray Avenue in Mosman Park (the proposed address). I therefore ordered the preparation of a report dealing with the suitability for home detention of the proposed address.
I produced written reasons for my decision refusing to release the applicant on the conditions of bail being proposed by him.[1] These reasons must be read in light of the reasons that I produced on 3 April 2020.
The Bail Assessment Report
[1] Akhbari Sadiqi v The State of Western Australia [2020] WASC 111.
I now have before me the Bail Assessment Report that has been prepared pursuant to the order that I made on 3 April 2020 (the report). The report is dated 23 April 2020. The report has been prepared by a Senior Community Corrections Officer employed within the Department of Justice's Corrective Services Division, and has been endorsed by the officer's team leader. The report reveals, among other things, the following.
On 16 April 2020 the applicant was interviewed by phone. The obligations of home detention bail were explained to the applicant. The applicant demonstrated a sound understanding of the range of conditions that might be imposed as part of home detention bail. The applicant expressed a willingness to comply with any conditions imposed and an awareness of the consequences of failing to do so.
On 17 April 2020 a home visit was conducted at the proposed address.
The current sole occupant of the proposed address is Mr Hadi Sarmi, the applicant's proposed surety. Mr Sarmi leases the proposed address. Mr Sarmi was present at the time of the home visit to the proposed address.
Mr Sarmi denied any illicit substance use. He stated that he does not condone such activity and that he would not permit any drug use at the proposed address. He emphasised that the applicant had lived with him in 2014. He expressed confidence that the proposed address is removed from the applicant's former associates. He indicated his understanding of home detention bail and confirmed his willingness to have the necessary equipment installed at the proposed address. He also offered to transport the applicant from prison and to assist him to meet any other obligations of his bail, for example, urinalysis testing.
The proposed address is assessed as a suitable premises for the applicant's release on home detention bail, particularly given that Mr Sarmi is offering a positive environment for the applicant. No risk factors have been identified that might impede the applicant's ability to comply with electronic monitoring. The proposed address is also located within easy access to Fremantle Adult Community Corrections where urinalysis testing is available twice weekly. Fremantle Adult Community Corrections will be responsible for the supervision of the applicant if he is released on home detention bail.
The writer of the report concludes the report by recommending that if the applicant is released on home detention bail his conditions of bail include the following:
1.Not to consume alcohol;
2.To submit to random breath testing at the direction of an officer of the Western Australian Police Force;
3.Not to consume any illicit substance;
4.To submit to urinalysis at the direction of a community corrections officer (CCO) with any positive result to be a breach of bail;
5.To follow the lawful directions of a CCO; and
6.To be released upon confirmation from Adult Community Corrections that electronic monitoring equipment is available and installation of the equipment can be facilitated.
Decision
Having regard to the contents of the report and the questions specified in cl 1 of pt C of sch 1 of the Act, I am satisfied that it is appropriate to grant the applicant bail on the charge faced by him on a significant number of conditions including a home detention condition. In particular, I am satisfied that the imposition of a home detention condition with a number of other conditions of bail will sufficiently remove the risks of the applicant, if he is not kept in custody, absconding and/or failing to appear in court, and committing further offences. I am also satisfied that the pre‑conditions for the granting of home detention bail specified in cl 3(2) of pt D of sch 1 to the Act are met.
I therefore grant the applicant bail on the following conditions:
1.The applicant is to provide a $50,000 personal undertaking;
2.A surety in the amount of $5,000 is to be provided by Mr Hadi Sarmi;
3.The surety, Mr Hadi Sarmi, is to reside at unit 8, 12 Murray Avenue, Mosman Park, Western Australia for the duration of the time for which the applicant is on bail;
4.The applicant is to reside at unit 8, 12 Murray Avenue, Mosman Park, Western Australia on home detention and is to be subject to, and is to comply with, all of the home detention conditions that are specified in cl 3(3) of pt D of sch 1 of the Act;
5.The applicant is not to be released on home detention bail until confirmation from Adult Community Corrections that home electronic monitoring equipment is available and that the installation of the equipment at unit 8, 12 Murray Avenue, Mosman Park, Western Australia can be facilitated;
6.The applicant is to comply with all lawful directions of a community corrections officer;
7.The applicant is to surrender any passport and any other travel documentation in his possession to the Principal Registrar of the Supreme Court, and is not to apply for any further passport or any form of documentation permitting him to travel;
8.The applicant is not to leave the State of Western Australia or approach within 1 km of any international or domestic point of departure;
9.Until further order, the applicant is not to contact any witness named on the indictment (save for Mr Hadi Sarmi) or any witness whose statement has been disclosed in relation to the location of his or her Mercedes SUV or Lexus sedan on 4 August 2017, and is not to contact any witness whose name is specified on a list to be provided by the Director of Public Prosecutions for Western Australia to the applicant's legal representatives by 30 April 2020 or from time to time, such list to be provided by the applicant's legal representatives to the applicant.
10.The applicant is prohibited from disclosing the prosecution brief to any person other than his legal representatives;
11.The applicant is not to contact, directly or indirectly, Sannah Samura, Amirali Farsijani, William Wade Kickett or Saied Akbar Hussaini;
12.The applicant is not to contact, directly or indirectly, any member of the family of the deceased, Mr Dejan Dimitrovski;
13.The applicant is not to possess and/or make use of more than one mobile telephone and is, on acquiring possession of the phone, to immediately notify the officer in charge of the investigation, either verbally or in writing, of the phone's service number;
14.The applicant is to present his mobile telephone to a representative of the Western Australian Police Force for inspection upon request;
15.The applicant is not to possess or consume alcohol;
16.The applicant is to submit himself to random breath testing at the direction of an officer of the Western Australian Police Force, with a failure to provide a valid breath sample or a positive result to alcohol being a breach of bail;
17.The applicant is not to possess or use illicit substances; and
18.The applicant is to submit himself to urinalysis testing as directed by a community corrections officer and is to provide a valid sample for urinalysis, with a failure to provide a valid sample or a positive result to an illicit substance being a breach of bail.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
29 APRIL 2020
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