Attorney General v PHB by his guardian ad litem Alan Van Der Steen

The matter before the court was an application by the Attorney General of Western Australia for an extended custody order under the Criminal Law (Mental Impairment) Act 2023, in respect of a respondent identified as PHB, who was subject to a previous custody order under repealed legislation. PHB had been living in the community since November 2021, supported by the National Disability Insurance Scheme. The application also included a request for a community supervision order and sought the appointment of the Public Advocate as guardian ad litem. The case turned on the assessment of the risks PHB posed to the community and the adequacy of the current supports in place.

The primary legal issues involved the interpretation and application of the new Act, particularly sections 110(1), 110(3), 110(4), and 110(5). The court had to determine whether the risks posed by PHB were sufficiently mitigated by the community supports and whether an extended custody order or a community supervision order was appropriate. The court also had to consider the necessity for appointing the Public Advocate as guardian ad litem under rule 2 of Order 70 of the Rules of the Supreme Court 1971.

The court found that PHB's living arrangements and the support provided by the NDIS were adequate to manage the risks he posed to the community. The court emphasised that each case must be assessed on its own facts and that the current supports were sufficient to ensure community protection. The court also deemed the appointment of the Public Advocate as guardian ad litem unnecessary, given the existing guardianship and administration orders. The court granted the application for an extended custody order, considering it the most appropriate course of action based on the evidence presented.