The State of Western Australia v Kickett [No 2]
[2020] WASC 184
•28 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KICKETT [No 2] [2020] WASC 184
CORAM: DERRICK J
HEARD: 22 & 29 APRIL 2020, 18 MAY 2020
DELIVERED : 28 MAY 2020
FILE NO/S: INS 241 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
WILLIAM WADE KICKETT
Accused
Catchwords:
Criminal law – Accused charged with murder – Accused on bail – Accused brought before court pursuant to s 54(1)(a)(ii), s 54(2)(a) and s 54(2a) of the Bail Act 1982 (WA) – Application to revoke bail and for accused to be remanded in custody pursuant to s 55(1)(d) of the Bail Act 1982 (WA) – Whether to grant fresh bail on conditions including a home detention condition
Legislation:
Bail Act 1982 (WA)
Result:
Application to revoke existing bail allowed
Fresh bail granted
Home detention condition imposed
Category: B
Representation:
Counsel:
| Prosecution | : | Ms L E Christian SC |
| Accused | : | Ms G M Cleary |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Angus Hockton |
Case(s) referred to in decision(s):
The State of Western Australia v Kickett [2020] WASC 173
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript)
Introduction
On 22 April 2020, 29 April 2020 and 18 May 2020 I heard the State's application made pursuant to s 55(1)(d) of the Bail Act 1982 (WA) (the Act) for an order revoking the accused's bail (the application). The accused opposed the application.
On 19 May 2020 I adjourned the final determination of the application pending the provision of a home detention Bail Assessment Report under cl 3 of pt D of sch 1 of the Act, the relevant proposed address for home detention being 8 Catlidge Street, Ellenbrook (the proposed address). At that time I indicated that if the home detention Bail Assessment Report was favourable, I would pursuant to s 55(1)(e) of the Act revoke the accused's existing bail and grant him fresh bail on the same conditions as his current bail subject to the addition of the home detention condition and the removal of any conditions rendered nugatory by the home detention condition. I gave detailed oral reasons for arriving at this conclusion which I subsequently produced in written form.[1] The reasons that I am now giving must be read in light of the reasons that I gave on 19 May 2020.
[1] The State of Western Australia v Kickett [2020] WASC 173.
The Bail Assessment Report
I now have before me the Bail Assessment Report that has been prepared pursuant to the order that I made on 19 May 2020 (the report). The report is dated 26 May 2020. The report has been prepared by a Senior Community Corrections Officer (CCO) employed within the Department of Justice's Corrective Services Division, and has been endorsed by the CCO's team leader. The report reveals, among other things, the following.
On 21 May 2020 the CCO interviewed the accused's partner, Ms Fenn. Ms Fenn lives at the proposed address with her and the accused's children.
During the interview Ms Fenn indicated a willingness to support the accused if he is released on home detention bail. She expressed a belief that if the accused is given the opportunity of home detention bail he will not again resort to alcohol and illicit substance use in the way that he did when he was previously on bail. However, she did not clearly articulate any grounds for her belief.
Ms Fenn informed the CCO of her intention to arrange for the accused, if he is released, to be linked with the Aboriginal Health Centre to assist in the management of his mental health issues.
Ms Fenn indicated an awareness that if the accused is released on home detention bail he will not be able to leave the proposed address if he begins to feel stressed, and that she has therefore set up two spaces within the proposed address in which he will be able to spend time alone if he feels overwhelmed.
Ms Fenn told the CCO that she does not condone substance abuse and that she will be willing to contact Adult Community Corrections (ACC) if she has any concerns about the accused abusing substances. However, the CCO, not surprisingly given the nature of the accused's recent breaches of bail while living at the proposed address with Ms Fenn, questions the genuineness of Ms Fenn's stated willingness in this regard.
Ms Fenn did not state to the CCO any clear concrete rules regarding the accused's behaviour in the proposed address. Nor did she verbalise any concrete rules around who would be permitted to visit the respondent at the proposed address.
On 22 May 2020 the CCO spoke to the accused. The CCO discussed the conditions of home detention bail with the accused. The accused subsequently signed a copy of home detention bail conditions and indicated a willingness to comply with the conditions.
The accused informed the CCO that since being returned to custody as a result of breaching his bail he has recommenced a medication regime and that the medication has greatly assisted in stabilising his mental health.
The accused presented as confident in his ability to comply with the conditions of home detention bail despite the fact that the conditions would be considerably more restrictive than those on which he was previously released. He confirmed a willingness and motivation to engage in substance use counselling and/or psychological counselling if released on home detention bail to ensure that he has access to ongoing support around both his illicit substance use and mental health.
Ultimately the CCO concludes that although the proposed address is a suitable address for the purposes of home detention bail, there remain concerns about the 'protective nature of the sponsor', namely Ms Fenn. She recommends that if the accused is released on home detention bail the conditions of his bail include the following:
1.To be released upon confirmation from ACC that the installation of monitoring equipment can be facilitated;
2.The applicant is to attend urinalysis testing as directed by a CCO 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;
3.To attend programs and counselling as directed by a CCO; and
4.To comply with mental health treatment as directed by a medical practitioner or a Community Mental Health Team member.
The parties' submissions
On behalf of the accused it is pointed out that there is a focus in the report on Ms Fenn and her limited ability to give support to the accused if he is released on bail. However, it is submitted that there is no suggestion in the report that the proposed address is not suitable for home detention bail, or that the accused is not capable of complying with the conditions of home detention bail or that the accused is not otherwise suitable for release on home detention bail. It is submitted that in these circumstances the accused should be released on home detention bail.
The State also recognises that the report appears to focus on Ms Fenn's limited ability to assist the accused to comply with any conditions of bail. The State points out that although any assistance that Ms Fenn is able to provide to the accused will likely further reduce the prospects of him breaching his bail, ultimately it is the accused's responsibility to comply with his conditions of bail if he is released on bail. The State accepts that in light of the fact that the proposed address is assessed as suitable for home detention bail it is difficult for it to contend that the accused should not be released on home detention bail.
The parties have provided a minute of proposed conditions. The proposed conditions to a large extent reflect the accused's previous bail conditions save, of course, that they include a home detention condition and do not include the previously existing conditions that have been rendered nugatory by the home detention condition.
The proposed conditions include some not previously imposed conditions prohibiting the accused from consuming alcohol and requiring him to subject himself to random breath testing.
The proposed conditions do not include the third and fourth of the conditions recommended by the CCO. However, the accused through his counsel has indicated that he does not object to the imposition of these additional conditions. The State has no difficulty with the imposition of these conditions.
Decision
It is clear that the proposed address is an address to which the accused can be released on home detention bail. The address is suitable for the installation of the necessary monitoring equipment. Further, Ms Fenn is supportive of the accused being released to the address on home detention bail.
Like the CCO, I doubt the ability of Ms Fenn to act as much of an additional protective factor. However, in this regard nothing has really changed from when I originally released the accused on bail. It is the imposition of the home detention condition itself that I see as being the main additional protective factor so far as the relevant risk factors are concerned. Although any support that Ms Fenn is able to offer to the accused will of course be to the accused's benefit, ultimately he is responsible for complying with any conditions of bail.
Having regard to the CCO's confirmation of the proposed address as being a suitable address for home detention bail I am, for the reasons that I gave on 19 May 2020, satisfied that it is appropriate to grant the accused fresh 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 accused, 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 of the Act are met.
I therefore order pursuant to s 55(1)(e) of the Act that the accused's existing bail is revoked and that he is granted fresh bail on the following conditions:
1.The accused is to give a personal undertaking in the amount of $100,000;
2.A surety in the amount of $100,000 is to be provided by the accused's father Mr William Paul Kickett or the accused's mother Ms Bernadette Marie Kickett;
3.The accused is to reside at 8 Catlidge Street, Ellenbrook, 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;
4.The accused is not to be released on home detention bail until confirmation from ACC that home electronic monitoring equipment is available and that the installation of the equipment at 8 Catlidge Street, Ellenbrook, Western Australia can be facilitated;
5.The accused is to comply with all lawful directions of a community corrections officer;
6.The accused is to surrender any passport 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;
7.The accused is not to leave the State of Western Australia or approach within 1 km of any international or domestic point of departure;
8.Until further order, the accused is not to contact any witness named on the indictment 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, or any witness whose name is specified on a list to be provided by the Director of Public Prosecutions for Western Australia by 29 May 2020 or from time to time, such list to be provided by the accused's legal representative to the accused;
9.The accused is prohibited from disclosing the prosecution brief to any person other than his legal representative;
10.The accused is not to contact, directly or indirectly, Sannah Samura, Amirali Farsijani, Poria Akhbari Sadiqi or Saied Akbar Hussaini;
11.The accused is not to contact, directly or indirectly, any family member of the deceased, Mr Dejan Dimitrovski;
12.The accused is not to possess and make use of more than one mobile telephone and is, on obtaining or being given possession of a phone that he intends to use, to immediately notify the officer in charge of the investigation, either verbally or in writing, of the phone's service number;
13.The accused is to present his mobile telephone to a representative of the Western Australian Police Force for inspection upon request;
14.The accused is not to possess or consume alcohol;
15.The accused 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;
16.The accused is not to possess or use illicit substances;
17.The accused is to attend 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;
18.The accused is to attend programs and counselling as directed by a CCO; and
19.The accused is to comply with mental health treatment as directed by a medical practitioner or a Community Mental Health Team member.
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
28 MAY 2020
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