The State of Western Australia v Pickett [No 3]
[2024] WASC 230
•26 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PICKETT [No 3] [2024] WASC 230
CORAM: MCGRATH J
HEARD: 26 JUNE 2024
DELIVERED : 26 JUNE 2024
FILE NO/S: SO 3 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KINGSLEY ARNOLD PICKETT
Respondent
Catchwords:
Criminal law - High risk serious offender - Contravention proceedings - Application for detention pending determination of contravention proceedings - Need to ensure adequate protection of the community
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 53, s 56
Result:
Offender detained pending determination of contravention proceedings
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Pickett [2020] WASC 96
The State of Western Australia v Pickett [No 2] [2024] WASC 22
The State of Western Australia v Slater [No 2] [2021] WASC 465
MCGRATH J:
The State of Western Australia (the State) has filed an application under s 55 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) commencing contravention proceedings in respect of the respondent. The State seeks an order under s 53(2)(b) of the HRSO Act that the respondent be detained in custody pending the finalisation of the contravention proceedings. In support of the application the State relies upon the Affidavit of Mr Moulton, Community Offender Monitoring Unit, affirmed 24 June 2024.
On 5 June 2019, the State applied under s 17 of the Dangerous Sexual Offenders Act2006 (WA) (DSO Act) for a div 2 order to be made in respect of the respondent. On 25 March 2020, Smith J found that the respondent was a serious danger to the community within the meaning of s 7(1) of the DSO Act and that he should be detained on a continuing detention order.[1]
[1] The State of Western Australia v Pickett [2020] WASC 96 [125], [127].
On 13 March 2023, the State applied, pursuant to s 64 of the HRSO Act, for the detention of the respondent to be reviewed. The hearing of that review took place on various dates in 2023 and 2024. On 7 February 2024, Derrick J ordered that the continuing detention order be rescinded and that the respondent be released subject to a supervision order.[2] At the time of his release in February 2024, the respondent had been incarcerated since 4 December 1998 and had been detained under the provisions of the DSO Act and the HRSO Act since 25 July 2019. In December 1998, the respondent was 21 years old. He is now 45 years of age. Regrettably, Mr Pickett has once again been arrested and placed back into custody, this time for allegedly contravening his supervision order.
[2] The State of Western Australia v Pickett [No 2] [2024] WASC 22.
The issue that I must decide is whether the respondent may be released on an interim supervision order pending the determination of the contravention proceedings. Counsel for the respondent submitted that given the circumstances, the interim detention of the respondent is not opposed. I find the submission of counsel was properly made and that the respondent must be subject to a detention order pending the determination of the contravention proceedings for the following reasons.
Relevant legislative provisions
Section 56 of the HRSO Act provides that the section applies to a person who is subject to a supervision order in respect of whom proceedings on an application under s 53 are pending.
Section 56(2) of the HRSO Act provides as follows:
The court may at any time in the pending proceedings -
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
Section 56(3) of the HRSO Act provides as follows:
The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
In The State of Western Australia v Slater [No 2],[3] Quinlan CJ stated that in respect to an application that a respondent be detained under s 53(2)(b) the Court must be satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.[4]
[3] The State of Western Australia v Slater [No 2] [2021] WASC 465.
[4] The State of Western Australia v Slater [No 2] [2021] WASC 465 [25].
The alleged contraventions
The conduct upon which the applicant relies in support of the contention that the respondent has contravened the supervision order comprises the criminal convictions which I have outlined.
The respondent has been charged with a number of criminal offences which are yet to be determined. Mr Moulton deposes that the respondent has been charged with the following criminal charges.[5]
a)MC PER 29298/2024 Contravened a Requirement of a SO (Contravention of Condition 7). Condition 7 of the Respondent's HRSO SO states: 'Be subject to electronic monitoring under section 31 (of the High Risk Serious Offenders Act 2020 (WA))'. At approximately 1:00 am on 24 May 2024, an alert was received on the Central Monitoring Station, Electronic Monitoring System indicating the Respondent's GPS electronic monitoring device may have been removed. Following investigations by COMU and the contracted Security Service, it was confirmed the Respondent had allegedly unlawfully removed his GPS tracking device and was no longer present at his residential address.
b)MC PER 29299/2024 Contravened a Requirement of a SO (Contravention of Condition 27). Condition 27 states: 'Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time'. On 6 March 2024, the Respondent was issued with a Written Lawful Instruction (WLI) directing him: 'Not leave your designated residence (address removed) between the hours of 1900 to 0700 (7 pm to 7 am) on Monday, Tuesday, Wednesday, Thursday, Friday, Saturday and Sunday without permission from a Community Corrections Officer'. The antecedent of this alleged charge relates to the abovementioned offence, as the Respondent was not located at his residential address upon further investigations, contravening the abovementioned curfew WU and SO condition.
c)MC PER 29300/2024 Without Lawful Excuse Trespassed on a Place. In addition to the antecedents above, it is alleged at approximately 7:10 am on 24 May 2024, the Respondent has jumped into the garden of an address in the Gosnells area and has peered through the bathroom window. The address is the home of an elderly female, who was in the shower at the time and became aware of the Respondent's presence. The Respondent then jumped back over a fence and left the property.
d)MC PER 29301/2024 Criminal Damage or Destruction of Property. This charge relates to the abovementioned offences (MC PER 29298/2024 and 29299/2024) where the Respondent is alleged to have unlawfully removed his GPS electronic monitoring device. The GPS electronic monitoring device was recovered by WAPF officers in the laundry of the Respondent's residential address.
[5] Affidavit of Mr Moulton affirmed 24 June 2024, [9].
Bail has not been considered in respect to the outstanding charges. The respondent has been remanded in custody to appear in the Perth Magistrates Court on 11 July 2024.
Mr Moulton deposes that since the respondent was remanded in custody on 24 May 2024, further charges have been preferred against him as follows:[6]
a)MC PER 30392/2024 Contravened a Requirement of a SO (Contravention of Condition 30). Condition 30 of the Respondent's HRSO SO states: 'Maintain a daily diary of your movements, activities and associations, if and as directed, by the CCO and present this diary to your CCO and Police Officer/s upon request'. On 22 April 2024, 16 May 2024 and 23 May 2024 the Respondent failed to present the diary to his CCO on request, providing different reasons on each occasion as to why he had not brought the diary to his scheduled supervision appointments. The Respondent was provided with a new diary on 16 May 2024 and was requested to present this at his next supervision session on 23 May 2024. As noted above, he failed to do so despite a clear verbal direction being issued on 16 May 2024 to do so and on 22 April 2024 to bring his diary to each supervision session.
b)MC PER 30393/2024 Contravened a Requirement of a SO (Contravention of Condition 25). Condition 25 states: 'Not possess, consume or use any prohibited drugs, plants or other substances to which, the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA) and your use is in accordance with the instructions of the provider'. On 23 May 2024 the Respondent reported to the COMU at East Perth Adult Community Corrections Centre (ACCC) for supervision and submitted to urinalysis testing as directed. The PathWest Laboratory Report was received on 28 May 2024 which confirmed a positive result for amphetamine (4539 ug/L) and methylamphetamine (>5000 ug/L). During the course of the supervision session on 23 May 2024, the Respondent made no admissions to illicit substance use.
c)MC PER 30394/2024 Used a Prohibited Drug (Amphetamine): The antecedent to this charge relates to the abovementioned offence, urinalysis test from 23 May 2024.
d)MC PER 30395/2024 Without Lawful Excuse Trespassed on a Place. At approximately 6:50 am on 24 May 2024, the Respondent is alleged to have jumped into the rear garden of a residential property, occupied at the time by the 76-year-old complainant, his partner and their 10-year-old great grandson. The Respondent was disturbed by the complainant's dogs and jumped over a side fence.
e)MC PER 30396/2024 Without Lawful Excuse Trespassed on a Place. At approximately 7:05 am on 24 May 2024, the Respondent is alleged to have walked down the driveway of a residential property, occupied at the time by the 44-year-old complainant and 15-year-old daughter, before jumping over a side gate into the rear yard. He was disturbed by the complainant's dog and jumped over the rear fence.
f)MC PER 30397/2024 Without Lawful Excuse Trespassed on a Place. Between 7:15 am and 8:15 am on 24 May 2024, the Respondent is alleged to have trespassed at a secure lifestyle village for residents over 50 years of age. He was observed by an occupant in a small garden at the facility, where the Respondent stated to the occupant that he was 'on the run'. He was later seen by a gardener at the facility.
g)MC PER 30398/2024 Contravened a Requirement of a SO (Contravention of Condition 33). Condition 33 states: 'Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place'. Due to difficulties contacting the Respondent by phone, he was issued with a WLI on 23 May 2024 which states: 'Contact the Community Offender Monitoring Unit (COMU) on 9264 6419 every Monday, Wednesday and Friday before 10.00 am. The sole purpose of this call is to allow a CCO to instruct you, if required, to attend any centre for the purpose of urinalysis testing'. On 24 May 2024, the Respondent failed to telephone COMU as per his WLI.
[6] Affidavit of Mr Moulton affirmed 24 June 2024, [11].
Bail has not been granted in respect to these further charges. The charges have been adjourned to 11 July 2024.
In addition, the respondent was convicted of one offence that on 2 April 2024 he was in possession of an undeclared mobile phone and thereby contravened his supervision order. A $300 fine was imposed.[7]
[7] Affidavit of Mr Moulton affirmed 24 June 2024, [13].
Mr Moulton also deposes that since 6 March 2024, the respondent has engaged in concerning behaviour, including providing urinalysis tests that have returned positive results to illicit drugs on 14 occasions and that the test on 23 May 2024 returned high levels of amphetamine and methylamphetamine.[8] Mr Moulton also deposes that the respondent has shown a lack of engagement with supervising agencies in the community and associates with anti-social peers in the community.[9]
[8] Affidavit of Mr Moulton affirmed 24 June 2024, [15].
[9] Affidavit of Mr Moulton affirmed 24 June 2024, [15].
Mr Moulton states that the respondent's supported accommodation with Uniting WA has been jeopardised by his poor engagement, non‑compliance and substandard maintenance of the property. Mr Moulton deposes that the respondent's lease with Uniting WA has expired and has not been extended due to the ongoing concerns with non‑compliance and behaviour in the community.[10]
[10] Affidavit of Mr Moulton affirmed 24 June 2024, [21].
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
When the alleged contraventions are viewed together and in light of other evidence that the State relies upon, there appears to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community. The respondent is not complying with the conditions of the supervision order and his ability to do so is compromised by the respondent's lack of engagement with supporting networks whilst continuing his relationships with anti-social peer associations and returning to using illicit substances.
On the basis of the information that I have at the time of hearing this application, I am not satisfied that the respondent would substantially comply with the standard conditions if released. In particular, I am not satisfied that the respondent would substantially comply with the conditions regarding supervision by a community corrections officer and compliance with all reasonable directions issued by such an officer.
I find that at this time, I am unable to impose any conditions to an amended supervision order that would adequately manage the respondent's risk of committing a serious offence if released.
Accordingly, I am satisfied that it is desirable that an interim detention order be made to ensure the adequate protection of the community.
Conclusion
Therefore, the respondent will be detained in custody pending the determination of the contravention proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
26 JUNE 2024
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