The State of Western Australia v Altieri - [2024] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ALTIERI [2024] WADC 31
CORAM:   GILLAN DCJ
HEARD:   17 NOVEMBER 2022, 24 FEBRUARY, 20 JUNE, 10 AUGUST & 6 OCTOBER 2023, 2 FEBRUARY, 19 APRIL, 22 APRIL & 24 APRIL 2024
DELIVERED          :   16 MAY 2024
FILE NO/S:   IND 1001 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
DANIEL JON ALTIERI

Catchwords:

Criminal law - Fitness to stand trial - Whether release order or custody order should be made - Turns on its facts

Legislation:

Nil

Result:

Defendant is unfit to stand trial.
Indictment quashed.
Release order made.

Representation:

Counsel:

The State of Western Australia	:	Mr N P Fawkes (6 October 2023, 2 February 2024, 19 April 2024, 22 April 2024 & 24 April 2024), Ms S A Kavanagh (24 February 2023, 20 June 2023 & 10 August 2023), Ms C R M Cusato (17 November 2022)
Accused	:	Ms M A Snowball (19 April 2024, 22 April 2024 & 24 April 2024), Ms J T Fisher (17 November 2022, 24 February 2023, 20 June 2023, 10 August 2023 & 6 October 2023)

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Justine Fisher Barristers & Solicitors

Case(s) referred to in decision(s):

The State of Western Australia v Collard [2024] WADC 7
The State of Western Australia v Huggins [2017] WASC 243
The State of Western Australia v Lowick [2016] WASC 339
The State of Western Australia v S U [No 2] [2017] WADC 20
The State of Western Australia v Tax [2010] WASC 208

GILLAN DCJ:

This matter comes before me for directions pursuant to s 98 Criminal Procedure Act 2004 (WA) for a determination pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (the 1996 Act) as to whether Mr Altieri is fit to plead. The State does not contest that Mr Altieri is not fit to plead. Counsel for the State and Mr Altieri agree that the principal question for determination is the appropriate order which should flow from any determination that he is not fit to plead.
The Criminal Law (Mental Impairment) Act 2023 (the 2023 Act) has been passed by Parliament. The 2023 Act provides that Part 1 will come into operation on the day the 2023 Act receives the Royal Assent but the rest of the 2023 Act will not come into effect until a day to be fixed by proclamation and different days may be fixed for different provisions. The 2023 Act has received the Royal Assent and accordingly Part 1 of the 2023 Act is currently in operation.
In The State of Western Australia v Collard[1] Bowden DCJ outlined his views of the consequences to an application under the 1996 Act due to Part 1 of the 2023 Act having come into operation. For reasons which I will set out below, I do not share his Honour's views.
[1] The State of Western Australia v Collard [2024] WADC 7 [4], [5], [72], [73].
These are my reasons for determining that Mr Altieri is not fit to stand trial, quashing the indictment and for making a release order under the 1996 Act.

The charges

Mr Altieri is charged on indictment with eight offences under the Criminal Code (CC) which are:
1.Count 1: s 401(2) CC: Aggravated home burglary and commit offence of sexual penetration of a child under the age of 13 years where the aggravating circumstances are alleged to be threat to kill, that Mr Altieri knew or ought to have known that there was another person in the house and that the place was ordinarily used for human habitation;
2.Counts 2, 4 and 8: s 320 (4) CC: Indecent dealing with a child aged under 13 years committed in the course of an aggravated home burglary;
3.Count 3: s 338B(1)(a) CC: threat to kill;
4.Count 5: s 320(2), s 320(7) and s 552 CC: Attempted sexual penetration of a child aged under 13 years committed in the course of an aggravated home burglary; and
5.Counts 6 and 7: s 320(2) and s 320(7) CC: Sexual penetration of a child aged under 13 years committed in the course of an aggravated home burglary.
The facts alleged against Mr Altieri are as set out in the submissions dated 10 August 2021 filed by the State, as follows:
6.On the evening of 22 February 2019, 10-year-old [DO] was at home at [an address]. Her father, [TO], was out at work. Her German au pair, [BM], was at home minding [DO] and [DO's] friend, [SL] (also aged 10 years old), who was sleeping over.
7.[DO], [SL] and [BM] had dinner together. [BM] went to bed and fell asleep at about 11pm, by which time the girls had fallen asleep watching a movie on the tablet on [DO's] bed.
8.In the early hours of 23 February 2019, whilst the girls and [BM] were asleep and [TO] still out at work, the accused entered the house without consent (count 1). The accused entered the house via an unlocked rear door. The accused then walked into [DO's] bedroom.
9.[DO] was awoken by the accused dragging his hand up her legs and over her vagina (count 2) and up her body. [DO] immediately said to the accused, 'Who are you, are you going to hurt me, are you going to kill me?' The accused said that he would not hurt her. He also told her that he had been watching her and that he loved her.
10.As [DO] got up off the bed, the accused covered her mouth with his hand. He told her to get onto the floor. He pushed her down and rolled her over so that she was on her back. The accused said to her, 'if you scream or make any noise your family won't breathe' (count 3). The accused then put his tongue into [DO's] mouth and kissed her (count 4).
11.As the accused kissed [DO], he removed [DO's] pants and then her underwear, such that she was naked, apart from a t-shirt. He pulled down his own pants such that they were not fully off. He was not wearing underwear or a shirt. He placed his penis close to her vagina and started shaking his body. He tried to put his penis into her vagina but was unable to do so (count 5). He then 'opened' her 'middle hole' with his fingers (count 7). The accused asked her if it felt good. She said 'yes' because she wanted him to stop doing it to her.
12.During this ordeal, [DO's] friend [SL] woke up. When she opened her eyes, she first thought that the man in the room was [DO's] dad who was hugging [DO] (count 8). She soon realised that it was not and that it sounded like there was something over [DO's] mouth. [SL] heard [DO] asking, 'who are you?' and 'what are you doing here,' and asking the man not to hurt her. [SL] lay quietly because she was scared. She heard the man say that if [DO] screamed that 'her family wouldn't be breathing or something'. She then fell asleep because she did not want to get hurt, but does remember hearing [DO] ask the man if she could go to the toilet. She woke up when [DO's] father came home.
13.Whilst on the floor, [DO] asked to go to the bathroom. The accused told her to 'go quietly'. She got up off the floor and walked to the bathroom. The accused followed her and stood immediately outside the bathroom. [DO] urinated, which 'stung a lot' when she did so. The accused then walked into the bathroom and started rubbing [DO's] vagina 'slow and hard' with his hand (count 7). [DO] told him that it hurt, and then heard her father arrive home from work.
14. [DO] told the accused that her father would check on her and [SL], and that if he let her go, she would come straight back. The accused remained in the bathroom whilst [DO] walked out, located her father and told him that there was a man in the bathroom.
15.[DO's] father, [TO], walked into [DO's] bedroom and then into the bathroom to find a 'creepy looking man' that 'looked like Charles Manson' wearing only black track pants. [TO] yelled at the man and then started assaulting him. Whilst being punched, the accused mumbled 'I'm sorry' a few times. [TO] got hold of him around the neck and choked him until the accused passed out. He told the au pair [BM] (who had woken by this point) to call police, which she did immediately.
16.[TO] left the accused passed out in the front of the house before walking back inside to ask [DO] and [SL] what had happened. Both girls were being comforted by [BM] in their father's bedroom. [DO] told her father that the accused had tried to kiss her and put his tongue in her mouth, and that he had touched her 'down there' whilst she pointed at her genitals with her hand. [SL] told him that she had not been touched by the accused, and that she was okay.
17.The first responding police officers arrived at the scene at approximately 4.05am. Upon arrival, they located the accused laying on the ground outside the front door of the address. They observed a small amount of blood under his head. He was wearing black trackpants and socks, with no shirt. Senior Constable McDowall attended to the accused and noticed a very strong smell of alcohol from him.
18.After a brief conversation with [TO] out the front of the house, Senior Constable Callan George went into the house and spoke with the children. [DO] told him that she woke up, the accused took off his pants, he took off her pants and then he held his mouth over her mouth. She began to appear upset and stopped speaking. [SL] continued for her, saying that the male had told [DO] to get onto the floor, and that if she told anyone, her 'family won't be able to breathe'.
19.[DO] then continued:
a.'He put his tongue in my mouth and started kissing me, he took my pants off, and took my underwear and shorts off.'
b.'I don't know how to say it, I don't know.'
c.'He opened my middle hole, it hurt, I wanted to scream.'
20.Senior Constable McDowall remained with the accused. As the accused regained consciousness, he immediately said, 'I'm sorry, I didn't mean to do it, please let me go'. He was then placed under arrest by Senior Constable McDowell, cautioned and given his rights. As he was walked away from the house by two police officers, he again said words to the effect that he was sorry and he shouldn't have done it.
…
24.Dr Johnson's examination revealed redness and swelling of the genital tissue. Two petechia were located; one just below the urethra and one at the base of hymen. According to Dr Johnson's reported dated 5 March 2019, these findings indicate blunt force trauma to the genital area and support [DO's] disclosure of digital and attempted penile vaginal penetration.
(footnotes omitted)
The facts as alleged are not in issue for the purpose of the determination of this application.

The law

An accused is presumed to be mentally fit to stand trial until the contrary is found under s 10 of the 1996 Act. The question of whether an accused person is mentally unfit to stand trial may be raised in the District Court after an indictment is presented: s 11 of the 1996 Act. Mr Altieri has been committed for trial to this court and an indictment dated 3 August 2020 presented.
The question of fitness to stand trial may be raised by the prosecution or the defence or the presiding judicial officer. In this case, both parties agreed this question required the determination of the court.
The question of whether an accused is mentally unfit to stand trial is to be decided by the court on the balance of probabilities. For the purpose of determining this question the judge can inform himself or herself in any way he or she thinks fit: s 12(1) of the 1996 Act. The court may order reports from a psychiatrist or other appropriate expert for this purpose.
Section 9 of the 1996 Act defines the circumstances in which an accused person is not mentally fit to stand trial. That section provides as follows:
9. Mental unfitness to stand trial, definition
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
Section 8 of the 1996 Act defines the term 'mental impairment' to mean 'intellectual disability, mental illness, brain damage or senility'. The term 'intellectual disability' is not further defined and so has its ordinary meaning. In this case it is common ground between the parties that Mr Altieri suffers a mental impairment because of an intellectual disability within the meaning of the 1996 Act. I will set out below the reasons why I agree with that common position.
Section 19 of the 1996 Act sets out the procedure for proceedings in the District Court to determine fitness to be tried. Where a judge decides that an accused is not mentally fit to stand trial it is then necessary to consider whether an accused may become fit within six months. Relevantly to these circumstances, if satisfied that Mr Altieri has a mental impairment which makes him unfit to stand trial and will not become mentally fit within six months, then I must make an order quashing the indictment without deciding the guilt of Mr Altieri and either release Mr Altieri or make a custody order: s 19(1) and s 19(4) of the 1996 Act.
A custody order must not be made unless an alleged offence is punishable by imprisonment and the judge is satisfied that such an order is appropriate having regard to the considerations referred to in s 19(5) of the 1996 Act. Those considerations are:
1.The strength of the evidence against the accused;
2.The nature of the alleged offence and alleged circumstances of its commission;
3.Mr Altieri's character, antecedents, age, health and mental condition; and
4.The public interest. I will say more about the law with respect to the public interest later in these reasons.
As should be clear, the only options under s 19(4) are unconditional release or a custody order. The 1996 Act does not empower the court to make an order conditionally releasing an accused person with, for example, a condition that the person reside in a particular place or be the subject of any specified supervision or undertake specified treatment.[2]
[2] This is a deficiency which has been noted on numerous occasions, see for example, The State of Western Australia v Tax [2010] WASC 208 and The State of Western Australia v Lowick [2016] WASC 339.
The Mentally Impaired Accused Review Board (the Board) is established under Part 6 of the 1996 Act. Within five working days of a custody order being made the Board must review the case of the unfit person and determine the place where the person is to be detained. The only place a person who is unfit to stand trial can be detained is an authorised hospital, a declared place or a prison or, if they are under 18 years of age, a detention centre: s 24(2) and s 25 of the 1996 Act.
Any detention of a person the subject of the custody order continues until the person is released by order of the Governor: s 24(1) of the 1996 Act.
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless that person has a mental illness that is capable of being treated: s 24(2) of the 1996 Act. Certain other requirements under s 24(3) of the 1996 Act also have to be met.
It is common ground in this case that Mr Altieri does not suffer a mental illness capable of being treated, is not under 18 years of age and that if a custody order is made then pursuant to the 1996 Act he will be detained in a prison indefinitely until an order for his release by the Governor.
If the balance of the 2023 Act is proclaimed as currently enacted, it will provide for different alternatives in the event that a person is found to be unfit to stand trial. By way of example, a limiting term must be set if a custody order is made and there is provision for conditional release of the unfit person.
I also note that if a custody order has been made under the 1996 Act and the balance of the 2023 Act is proclaimed as currently enacted,[3] it is anticipated that transitional provisions will see the unfit person come back before the court to have a limiting term of custody pursuant to a custody order fixed however that the court would not be empowered to generally review the custody order and replace it, for instance, with a conditional release order.
[3] There is no certain date for proclamation. I was advised by counsel for the State that it is anticipated that some or all of the balance of the 2023 Act will be proclaimed in September 2024.
It is convenient here to deal with the question of whether Part 1 of the 2023 Act has application to alter the law as I have set it out above.
Relevantly; 'mental impairment' is defined by s 9 of the 2023 Act to mean any of or a combination of the following:
(a)An intellectual disability;
(b)A mental illness as defined in the s 1(1) CC;
(c)An acquired brain injury;
(d)Dementia.
Under the 2023 Act the term 'intellectual disability' is not further defined. Accordingly, the term 'intellectual disability' under the 2023 Act would appear to have the same meaning as under the 1996 Act. Accordingly, in respect to Mr Altieri, there would not appear to be any substantive differences in the nature of his mental impairment which would found jurisdiction to make an order.
Both the 1996 Act and the 2023 Act are expressed to relate to criminal proceedings involving mentally impaired people who are charged with offences.
The 1996 Act does not have a specific object and principles clause. Part 1 of Div 3 of the 2023 Act provides:
7. Objects and principles
(1)The objects of this Act are as follows -
(a)to ensure the protection of the community;
(b)to ensure persons with mental impairment who are charged with an offence -
(i)are identified early in their contact with the justice system; and
(ii)are given a reasonable opportunity to become fit to stand trial; and
(iii)are given a fair hearing even if they are unfit to stand trial in accordance with ordinary procedures; and
(iv)are not found to have committed the offence unless, on the evidence available, it can be proved to the ordinary criminal standard of proof that the person committed the offence; and
(v)are subject to the least possible interference with their rights and dignity;
(c)to ensure that persons who are subject to supervision orders -
(i)are afforded procedural fairness in relation to the administration and management of those orders; and
(ii)are reintegrated into the community in a safe manner.
(2)A person performing a function under this Act (including when constituting or a member of a court or tribunal) must have regard to the following principles -
(a)that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community;
(b)that persons with mental impairment in the justice system should have access to advocacy services;
(c)that persons with mental impairment in the justice system should be provided with the best possible treatment, care and support;
(d)that persons with mental impairment in the justice system should be dealt with in a manner that is culturally appropriate;
(e)that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed;
(f)that there should be special provision to ensure the fair treatment of children with mental impairment who have been found to have, or are alleged to have, committed offences;
(g)that detaining a child with mental impairment for an offence, whether before or after the child is found to have committed the offence, should only be used as a last resort and, if required, should only be used for as short a time as is necessary;
(h)that the detention of a child, if required, should be in a facility that is for, and suitable for, children;
(i)that if a child who has not reached the age of 16 years is detained in a facility in which an adult is detained, the child should not be exposed to contact with an adult detained in the facility;
(j)that if a child who has reached the age of 16 years is detained in a facility in which an adult is detained, the child should not share living quarters with an adult detained in the facility;
(k)that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard;
(l)that the role of carers and families in the treatment, care and support of persons with mental impairment should be recognised.

8. Paramount consideration
The paramount consideration of a person when performing a function under this Act (including when constituting or a member of a court or tribunal) is the protection of the community.

The question arises as to what extent the objects and principles set out in s 7 and the paramount considerations set out in s 8 may apply in my considerations of the application made under the 1996 Act.
The State says that the court should take into account the objects expressed in s 7(1) of the 2023 Act but as the court is not 'exercising a function' under the 2023 Act the court is not bound to take into account the principles expressed in s 7(2) and s 8 of the 2023 Act. In part, the State says, this is because the principles and considerations outlined in s 7(2) and s 8 of the 2023 Act are specifically drafted to fit within the legislative framework of the 2023 Act which has a range of new provisions which might be invoked when considering whether a person is unfit to stand trial and in the management of any person who has been found to be unfit.
The State says that Part 1 Div 1 provides for preliminary matters including by s 3(1) of the 2023 Act:
This Part provides for preliminary matters, including -
(a)the objects of this act and the principles in considerations which persons performing functions under this Act must have regard; and
(b)the interpretations of terms and expressions used in this Act.
The State says that s 3(1)(a) refers to two separate matters. Firstly, the objects of the Act and, secondly, the principles and considerations to which persons performing functions under the Act must have regard. In other words, that the word 'and' in s 3(1)(a) is disjunctive.
This, the State says, is reflected in s 7 of the 2023 Act which deals in s 7(1) with the objects of the Act and in s 7(2) the principles and considerations to which persons performing functions under the act must have regard.
The State says, further, that the objects of the 2023 Act as set out in s 7(1) are not expressly predicated on a person performing a function under the Act. In this regard it differs to the principles and considerations set out in s 7(2) and s 8 of the 2023 Act which are expressed to apply when a person is performing a function under this Act.
The State says that until the remainder of the 2023 Act comes into operation the court is not performing a function under this Act but will instead be performing a function under the 1996 Act.
As a consequence, the State says the principles and considerations outlined in s 7(2) of the 2023 Act and the paramount consideration in s 8 of the 2023 Act are predicated on performing a function under the Act and are not matters that the court 'must have regard to' when determining the present case.
Nevertheless, the State considers that the 2023 Act has some relevance to the present case. The State says that Part 1 of the 2023 Act clearly sets out the objects and principles of the law that will apply in Western Australia in the very near future and that there is a public interest in ensuring decisions now made under the 1996 Act are not inconsistent with the objects and principles of the prospective law to the extent that it is possible.
Accordingly, the State says the objects outlined in s 7(1)(a) and s 7(1)(b), particularly s 7(1)(b)(v) of the 2023 Act, can and should be taken into consideration when determining this case. This is because those objects are not inconsistent with the current state of the law in Western Australia under the 1996 Act.
The State says further that s 7(1)(a) of the 2023 Act is equivalent to the relevant public interest factor under s 19(5)(d) of the 1996 Act and s 7(1)(b)(v) of the 2023 Act is consistent with authorities, for example the The State of Western Australia v Huggins.[4]
[4] The State of Western Australia v Huggins [2017] WASC 243.
Further, the State says that even though the court is not required to have regard to the mandatory considerations in s 7(2) and s 8 of the 2023 Act, where possible any decision in the present case should not be inconsistent with them, in particular s 7(2)(a) and (c), s 7(2)(k) and s 7(2)(l) and while the safety of the public is not the paramount consideration in the present case it should still be taken into account as a significant matter.
The defence submits that as the court is not performing a function under the 2023 Act then the court is not required to take into the considerations outlined in s 7(2) or s 8 of the 2023 Act. The defence agrees with the State that those principles and considerations are specifically calibrated to the legislative framework of the 2023 Act.
The defence points out that s 3(1)(a) of the 2023 Act uses the words 'the objects of this Act' and the 'principles and considerations to which persons performing functions under this Act must have regard' (my emphasis).
Section 7(1) of the 2023 Act is similarly constrained by the use of the words 'the objects of this Act' which means that there is no legislative foundation for applying the objects of the 2023 Act to an application falling for consideration under the 1996 Act (my emphasis).
The defence says that arbitrarily imposing the stated objectives of one piece of legislation upon a different legislative regime provided for in the 1996 Act would be inappropriate and impermissible.
The defence says that if the principles of the Act in s 7(2) are calibrated to the framework of the 2023 Act then as a matter of sound logic and legislative interpretation that reasoning must apply to both limbs of s 7.
It can be seen that neither the State nor the defence support the position as expressed by Bowden DCJ in The State of Western Australia v Collard.[5]
[5] The State of Western Australia v Collard [2024] WADC 7.
Further, the defence points to the requirements of the provisions of s 9(a) to s 9(g) of the 1996 Act as being clear on their face but that if one were to approach those words with an overlay of the objects as set out in s 7(1) of the 2023 Act the position becomes much less clear.
Specifically, the requirement under the 1996 Act to consider the public interest would encompass many of the matters set out in s 7 of the 2023 Act. For instance, such is the protection of the community, the principle of imposing the least possible restrictions on the freedom of an accused consistent with that protection of the community, the right of an impaired accused to have access to services and the best possible treatment, care and support or to be treated in a culturally appropriate manner, are all matters that might properly be considered under the purview of the public interest.
In my view, it is clear that in considering the application as it relates to Mr Altieri the court is not a person performing a function under the 2023 Act.
Accordingly, to overlay the principles and the paramount consideration in s 7(2) and s 8 of the 2023 Act over the requirements of the 1996 Act would be wrong.
With respect to the objects set out in s 7(1) of the 2023 Act clearly some of those objects could have no application to this matter. For example, s 7(1)(b)(iii) of the 2023 Act cannot apply because there is no current provision for a person to be given a hearing if they are unfit to stand trial in accordance with the ordinary procedures, and pursuant to s 7(1)(b)(iv) of the 2023 Act, Mr Altieri could not be found to have committed the offence to the ordinary criminal standard of proof or otherwise.
The object of the protection of the community in s 7(1)(a) of the 2023 Act is already provided for under the 1996 Act by way of a consideration of the public interest as, no doubt, the objects in s 7(1)(b)(i), (ii) and (v) of the 2023 Act. There can be no application of s 7(1)(c) which applies only to supervision orders under the Act.
So, if the objects expressed in s 7(1) of the 2023 Act were to have any application it is clear it is only in a piecemeal fashion. It is not to be expected that Parliament intended that the court exercising a function under the 1996 Act would have to go through the objects under s 7(1) of the 2023 Act in order to pick out those that might have some application.
Accordingly, I hold the view that in exercising the powers and functions that are obliged to be exercised under the 1996 Act, the objects and principles under s 7 and s 8 of the 2023 Act ought not to be taken into account.
Further, in my view, it would not be appropriate to approach the question of the consideration of the requirements of the 1996 Act with a view to achieving an outcome that is consistent with the 2023 Act given that the 1996 Act has not yet been repealed and that the whole of the 2023 Act is not yet and may never be proclaimed.
Accordingly, for the purpose of these proceedings, the questions to be decided are:
1.Is Mr Altieri presently fit to be tried?
2.Will he become mentally fit to stand to trial within six months?
3.If not, is it appropriate to make a custody order?

Evidence as to fitness to plead and stand trial

I have had the benefit of five written reports by three psychiatrists:
1.The report of Dr S J R Pratchett dated 2 December 2019;
2.The report of Dr Mircea Schineanu dated 12 November 2020 and his addendum report dated 30 December 2021; and
3.The report of Dr Adam Brett dated 21 January 2021 together with an additional report dated 27 July 2022.
I have also had the benefit of a report of Neuropsychological Assessment undertaken by Dr Mandy Vidovich dated 20 April 2020.
Dr Pratchett met with Mr Altieri on 28 November 2019. By reason of Mr Altieri's presentation Dr Pratchett performed a test known as the Montreal Cognitive Assessment which he describes as a widely used screening test of cognitive function and a 'bedside assessment' for detecting cognitive impairment. Dr Pratchett found that Mr Altieri performed in the clearly impaired range presumably as a consequence of an intellectual disability. Dr Pratchett formed the view, on the basis of his meeting with Mr Altieri and the presumed intellectual disability, that Mr Altieri:
1.Could not understand the nature of the charges against him;
2.Had a rudimentary understanding of the requirement to plead but no appreciation of the effect of a plea;
3.Did not demonstrate an understanding of the purpose of a trial;
4.Was unable to understand or exercise the right to challenge jurors, follow the course of a trial, understand the substantial effect of evidence presented against him and was unable to properly defend the charges; and
5Was, as a consequence, unfit to plead or to stand trial.
Dr Pratchett recommended that neuropsychological assessment be undertaken in order to properly assess the extent of Mr Altieri's presumed intellectual disability.
Dr Vidovich undertook neuropsychological evaluation of Mr Altieri over some five hours in April 2020. The assessment by Dr Vidovich was comprehensive and it confirmed that Mr Altieri's intellectual function was in the extremely low range.
In the assessment of Mr Altieri's academic skills, his attention, working memory and processing speed, his verbal and language abilities, his visual, perceptual and constructional skills, Mr Altieri performed at an extremely low or, at best, borderline, level. For learning and memory, he performed at a borderline to low average. His executive abilities and behaviour were poor and he had deficits in his reasoning, planning, problem solving, concept formation and, other than in respect to some minor matters, in his complex attentional processes.
Dr Vidovich was of the view that Mr Altieri has an intellectual disability of mild severity. With respect to the criteria set out in the 1996 Act, Dr Vidovich formed the view that while Mr Altieri could, with assistance, understand the charges, the need to plead and the purpose of a trial but he could not exercise the right of challenge, follow the course of the trial, understand the substantive effect of the evidence against him or properly defend the charges.
In his first report dated 12 November 2020, Dr Mircea Schineanu expressed the view that the accused, while suffering from a mild intellectual disability, was fit to plead and fit to stand trial with appropriate assistance from his counsel. However, Dr Schineanu met again with Mr Altieri about a year later and re‑assessed him. In his addendum report dated 30 December 2021, Dr Schineanu expressed a reconsidered view concluding that Mr Altieri would not be able to properly follow the course of the trial or understand the substantive effect of the evidence led against him.
In his report dated 21 January 2021 Dr Brett, a consultant psychiatrist, expressed the view that Mr Altieri had an intellectual disability of mild severity. Dr Brett thought that, with help, Mr Altieri would understand the nature of the charges against him, the requirement to plead but not the effect of a plea, the purpose of a trial, and the requirement to challenge jurors and that Mr Altieri would struggle to follow the course of a trial or to understand the substantive effect of the evidence led against him.
Dr Brett indicated that these difficulties arose out of Mr Altieri's intellectual disability and would not improve in the following six months. Dr Brett said of Mr Altieri 'his intellectual disability is static and will not improve'.
By a further report dated 27 July 2021, Dr Brett confirmed his earlier views but also addressed matters relevant to the type of order which should be made with respect to the accused. I will come back to those matters in due course.
As I have said above, the State concedes that Mr Altieri is not mentally fit to stand trial within the meaning of the Act and that Mr Altieri will not become mentally fit to stand trial within six months after any finding made by the court.
Taking into account that evidence, I find that Mr Altieri does suffer a mental impairment as a consequence of an intellectual disability, is not mentally fit to stand trial and will not become mentally fit to stand trial within six months because of his mental impairment and that his unfitness is likely to be permanent.
As a consequence of those findings and in accordance with s 19 of the 1996 Act I make an order quashing the indictment.

Appropriate order - release order or custody order

The charges against Mr Altieri all have a statutory penalty of imprisonment. Accordingly, a custody order can be made if I consider that it is appropriate to do so having considered the criteria set out in s 19(5) of the 1996 Act as set out above. Turning now to those criteria.

The strength of the evidence against the accused

Counsel appearing for Mr Altieri has conceded that the case against Mr Altieri is a strong one.[6] The evidence‑in‑chief of the complainant, DO, recorded in a Child Witness Interview dated 23 February 2019 is the only evidence of the acts which Mr Altieri is alleged to have committed against DO the subject of counts 1 - 7 on the indictment. DO's evidence is cogent and capable of supporting the allegations made against Mr Altieri. There was no delay in taking her evidence.
[6] Defence Outline of Submissions dated 3 August 2023 and oral submissions.
It is further alleged that on her father returning home, DO immediately made a complaint to him that there was a man in the bathroom and the man had 'tried to kiss her' and had 'touched her down there' and that she made further complaint to her friend, SL, and the au pair, BM.
Shortly after, DO is alleged to have made a consistent complaint to Senior Constable Callan George as set out above.
In her evidence recorded in a Child Witness Interview, the second complainant, SL, who is the subject of count 8 on the indictment, says she was sleeping in the room with DO. SL heard a man who was not the complainant's father in the room and the complainant saying 'don't hurt me'.
In addition, DO's father's statement is to the effect that he returned home off night shift and found his daughter coming out of the bathroom but without any knickers on. On being told there was a man in the bathroom he entered and found a man there with no shirt on. A fight broke out and eventually the man was ejected from the house onto the front lawn.
The au pair, BM, who was with the children that night, confirmed seeing a man in the house fighting with the complainant's father and calling emergency services.
Police witnesses say they found Mr Altieri on the front lawn of the house. Police statements record evidence of admissions made by Mr Altieri of a serious sexual crime but given Mr Altieri's intellectual disability I do not place any weight on those admissions in assessing the strength of the case against the accused.
A physical examination of DO by doctors at the hospital is consistent with DO's evidence.
I conclude that the case against Mr Altieri is a strong one.

The nature of the alleged offence and the alleged circumstances of its commission

The alleged material facts of the alleged offending and the circumstances are set out above and I will not repeat them here.
The allegations are of an incredibly serious nature with the capacity to do profound and ongoing harm to DO and to SL.
In its submissions the State pointed to the fact that if Mr Altieri was convicted that he would be sentenced to a substantive term of imprisonment. The maximum terms of imprisonment for counts 1, 6 and 7 is 20 years, for counts 2, 4, 5 and 8 is 10 years and for count 3 is 7 years. There is the possibility of a mandatory minimum term of imprisonment of 15 years if convicted of counts 6 and 7 and 7 years 6 months if convicted of counts 2, 4, 5 and 8. The State submitted that the maximum sentences and the possibility of a mandatory minimum demonstrate the seriousness of the alleged offending.
It is to be accepted that these allegations are of the utmost seriousness and would, in the event of conviction, carry a long sentence but, in my view, care should be taken when approaching the question of whether a custody order should be made by reference to any possible sentence for two reasons.
First, the court's function under the 1996 Act is to determine if a custody order should be made and it is not to weigh up what would be an appropriate time for Mr Altieri to spend in custody as if a form of punishment.
Second, a custody order made under the 1996 Act is indeterminate. That situation might change if and when the balance of the 2023 Act is proclaimed and any person subject to a custody order is bought back for a limiting term to be set but I cannot proceed on the basis that will definitely happen.

Mr Altieri's character, antecedents, age, health and mental condition

I have set out above Mr Altieri's mental condition. He has an intellectual disability. In addition, he has symptoms of mild depression which are being treated by way of anti-depressants but, other than that, he does not have a mental illness.
Mr Altieri is now 34 years of age. He was 29 years of age at the time of this alleged offending. He has never been in paid employment, but he has undertaken assisted work experience. Until about eight weeks prior to this alleged offending he lived at home with his parents.
Mr Altieri has no prior convictions. He comes before the court as a man of prior good character but it is of obvious concern that this alleged offending, of such a serious nature, occurred only weeks after he began living independently.
On 17 November 2022, Ms Rheana Altieri, Mr Altieri's sister, was called by Mr Altieri's counsel and gave evidence. Ms Altieri gave further evidence to update the court on 22 April 2024.
Ms Altieri is Mr Altieri's younger sister and as at November 2022 had been acting as his guardian pursuant to an Enduring Power of Guardianship signed by Mr Altieri in her favour on 8 August 2019.
Given the nature of his cognitive deficits I was concerned that Mr Altieri did not have capacity to grant any power of guardianship. At the court's suggestion Ms Altieri applied for and was granted plenary powers of guardianship and administration under the Guardianship & Administration Act 1990 (WA).

For some time prior to this alleged offending, Ms Altieri has assisted Mr Altieri with his activities of daily living and in the period before the alleged offending she had arranged for him to move from the family home where he lived with their parents into rental accommodation. Ms Altieri said that once he moved into his own accommodation Mr Altieri was living alone and without day‑to‑day supervision.
After moving into his own accommodation, Ms Altieri then continued to assist Mr Altieri with his finances and shopping. Since his arrest she has acted on his behalf liaising with Community Corrections and engaging counsel.
Ms Altieri is a student of health science and nursing. She was frank with the court about Mr Altieri's deficits. She said that Mr Altieri had always suffered an intellectual disability. Although he could read, Mr Altieri did not understand many conversations or paperwork and he needed assistance with more complex tasks. When speaking with Mr Altieri, care needed to be taken to ensure that he understood and had time to answer.
Ms Altieri also described some deficits in Mr Altieri's activities of daily living such as the need to be reminded about personal hygiene. Mr Altieri is, however, very structured and ordered. Ms Altieri used the expression OCD,[7] in respects to some aspects of his day‑to‑day life. For instance, when Mr Altieri's belongings were touched or were moved or left out of order, he would get frustrated with family members and might express anger, by getting very quiet.
[7] I understood this to be a shorthand and colloquial way of describing types of organised and rigid behaviours as there is no suggestion that Mr Altieri had been diagnosed with any form of Obsessive Compulsive Disorder.
Mr Altieri is close to his mother and while in custody she speaks with Mr Altieri every day. Mr Altieri's father is also in regular contact, as is Ms Altieri and an older sister.
Mr Altieri was also described as spending a lot of time alone, and as being antisocial but he did have friends who, for the most part, had been in special education classes with him in primary and high school. Ms Altieri conceded that he could respond inappropriately to people who he did not know, including young women.
Ms Altieri's view was that Mr Altieri was only a safety issue when he had been drinking. Mr Altieri liked to drink. Mr Altieri's 'friends' from when they were growing up in the neighbourhood were a bad influence and encouraged Mr Altieri in drinking.
Ms Altieri confirmed that when he drank Mr Altieri was a binge drinker and had no limit. When he was last in the community he would drink to excess fortnightly when he was in funds. Ms Altieri conceded that if he could, Mr Altieri would drink alcohol every day. One of the reasons why Ms Altieri had control of Mr Altieri's finances is that he would 'blow' his money on alcohol and food. Even though Ms Altieri had control of his finances at the time of the alleged offending it seems that Mr Altieri had funds or had acquired alcohol through friends.
I pause here to note that the reports indicate that in the hours immediately following his arrest, Mr Altieri had a blood alcohol concentration reading (BAC) reading of 0.2.
It appears that as at 17 November 2022 Mr Altieri has not received alcohol counselling but, Ms Altieri said, he was very keen to engage in alcohol counselling so that he would not have to ever return to custody. Mr Altieri had told her that he did not want to touch alcohol again. I will say more about this below.
Ms Altieri accepted Mr Altieri became sexually disinhibited when he drank alcohol and, when he would drink in the past, Mr Altieri had on an occasion acted inappropriately, it seems in a sexual way, towards their younger sister although Ms Altieri did not know the details. That situation was obviously untenable in the family. When Mr Altieri was not drinking Ms Altieri had not witnessed sexually disinhibited behaviour on his part.
Ms Altieri said that Mr Altieri has been unable to maintain regular supported employment as he has been too readily distracted by fellow (female) employees and may have made some advances towards young women he was working with, but he had not during work experience engaged in sexually inappropriate behaviour. I accept that this is likely because Mr Altieri was sober at work.
Ms Altieri confirmed that Mr Altieri could not return to live at the family home. As for accommodation with other family members, Ms Altieri said (as at November 2022) she has two children, then one of 7 years of age and the other of 22 months.
Ms Altieri said that she could not have Mr Altieri live at her house because of the possibility of risk to her young daughter. In Ms Altieri's words 'I'm a mother before a sister'. Ms Altieri did not know if their older sister could accommodate Mr Altieri. That position has not changed.
Ms Altieri did not think that Mr Altieri could live unsupervised in the community. Structure and routine were very important to Mr Altieri and in her view alcohol was his real problem. Mr Altieri needed to address his use of alcohol and needed to better understand sexual mores and boundaries and he was keen to do so. She did not think that he was a risk to the community when he was sober.
Ms Altieri was prepared to continue in her role of assisting the accused and in making decisions for him as his guardian. When she gave evidence in April 2024, Ms Altieri outlined steps she had taken to obtain adequate NDIS funding for him, to liaise with the multi‑disciplinary team which I will describe below, funded by the NDIA and, importantly, to limit his access to money to acquire alcohol and to drink alcohol if he was to be released into the community.

Expert evidence

As mentioned above, in his report dated 27 July 2021, Professor Brett outlined his assessment of the risk of Mr Altieri engaging in further like offending. Dr Brett took into account a range of factors, including Mr Altieri's previous sexually inappropriate behaviour towards his sister, his lack of criminal history or history of antisocial attitudes or behaviour, his good behaviour while in custody, the denial of sexual deviancy by Mr Altieri (although Dr Brett thought this should be investigated), the fact that at the time of the alleged offending Mr Altieri was living out of home for the first time, was subject to reduced levels of support and the risks associated with the use of alcohol. Dr Brett was of the view that Mr Altieri was in the moderate range of risk of reoffending.
Dr Brett said that some factors would increase Mr Altieri's risk of sexual offending including alcohol intoxication, being alone with minors, being unsupervised, having unstable accommodation and a lack of structure in his day.
In the event that Mr Altieri was returned to the community, Dr Brett made recommendations to reduce the risk of him offending again in the future. Those recommendations included:
1.Appropriate sexuality education and counselling;
2.Supported accommodation with 24/7 support by male support workers;
3.Alcohol counselling suitable to his intellectual capacity. Abstinence should be the aim;
4.A behaviour support plan to provide structure and activity in Mr Altieri's day;
5.Continued use of anti-depressant medication as this would help to reduce libido; and
6.Supervision to ensure that Mr Altieri is not alone with minors.
An appropriate NDIS package and management plan would, in Dr Brett's view, be essential to Mr Altieri's safe management in the community.
I also had the benefit of a report of Stephanie Hickey titled Occupational Therapy - Functional Capacity Assessment Report v1.1 dated 15 May 2023. That report, relevantly, provides:
1.Mr Altieri had relatively few physical deficits and could (to some extent) read and write, look after his possessions, catch a bus, ride his bike and play video games, however, he has limited insight into the consequences of choice and behaviours and real limitations on his functioning with no real insight into how his intellectual disability might impact him.
2.Mr Altieri cannot manage his finances, medication or engage on his own behalf with the government with respect to his Disability Support Pension, with NDIS or with legal or therapeutic services. Without direct supervision he does not work well.
3.Mr Altieri is impaired in his communications and so struggles to form relationships with others. He may have a limited understanding of social rules and community standards.
4.Mr Altieri can, to some extent, cook and keep tidy his own personal space but needed help with his personal care, taking medication, knowing when he needed to do laundry (although he could fold and sort laundry) or undertake some home care, preparing meals, shopping, spending, identifying safe people in the community and getting along with others. He had difficulty in maintaining concentration when undertaking any work.
5.Mr Altieri struggled with social norms in different contexts. In conversation he mainly answered monosyllabically and did not direct conversation himself.
6.On the Assessment of Sexual Knowledge test, Mr Altieri's scores indicate that he has an extremely poor understanding of sex, sexual development, sexualised behaviours, consent, sexual offending.
7.Mr Altieri then had only a limited insight into the role of Ms Altieri's guardianship.
8.Finally, the report recommended that Mr Altieri would benefit from the development of skills associated with living independently, drug and alcohol use, healthy relationships and counselling relating to sexuality and sexual behaviours.
9.With respect to accommodation, if released into the community, the report recognised that Mr Altieri would require supported accommodation and recommended approximately eight hours per day of active supports. It was also noted that for a long‑term accommodation option he would benefit from Supported Independent Living with a 1:2 ratio being appropriate to provide him with 24 hour a day 7 day a week supports.
10.The report noted that support staff should be male. It was further noted that even in supported independent living accommodation, staff would not be authorised to stop Mr Altieri from leaving the accommodation or from drinking alcohol should he choose to do so.
I have also sought and received a considerable number of reports from Adult Community Corrections. At first those reports were to enable me to ascertain how Mr Altieri is housed while in custody, what his daily activities were and how well he was coping in custody.
More recently, the reports were to address the extent to which Mr Altieri's sexual health and education and alcohol misuse counselling needs could and would be met by Community Corrections while he was in custody, whether recommended counselling in those areas could be facilitated while in custody but funded by the NDIS system and, if that counselling has been received, how Mr Altieri has responded to it.
Reports were also sought as to what, if any, transitional accommodation could be provided to Mr Altieri if his release were to be ordered. Clearly, release into the community without any protections in the form of safe accommodation and support would be far from ideal. This was superseded as I will set out below.
I have received and read reports from Adult Community Corrections dated 3 February 2023, 29 September 2023, 27 October 2023, 17 November 2023, 8 December 2023, 19 January 2024, 15 February 2024 and 22 March 2024 along with a short email from Ms Gregory, a Community Corrections officer who has been involved in a role roughly equivalent to a case officer.
I understand from counsel's submissions that Mr Altieri has been housed in a unit within the prison which is designed to meet any needs of high need remand prisoners and to keep Mr Altieri secure from the main prison population. It is accepted by the State that Mr Altieri is a vulnerable person within a prison setting.
Reports informed that Mr Altieri had been engaged in employment as a laundry worker within the prison since 2019. His job was to ensure that the unit was kept tidy. Mr Altieri was entitled to a minimum of one hour a day of recreation time but when the unit was fully staffed he could have all day recreation if he so chose.
Mr Altieri mainly kept to himself but sometimes he played sport with other persons in custody. He was considered to be a 'model' prisoner who took his employment duties seriously.
Mr Altieri is not a management problem within the prison and there have been consistently positive reports about him by prison officials. That may be the case to the extent he is described as doing well in prison but it is also clear from those reports that he has few personal relationships with other prisoners, he has consistently expressed a desire to his family to leave prison and he suffers from depression for which he is medicated. No psychological assessment of him by the prison psychologist has been forthcoming and so I cannot be satisfied that he is thriving within that environment.
After some delay, a coordinated interagency effort was developed involving Mr Altieri's plenary guardian, Ms Altieri, Adult Community Corrections, Integrated Support Solutions through a Specialist Support Coordinator (SSC), a Positive Behaviour Support Practitioner (PBSP), an Occupational Therapist (OT), representatives of the National Disability Insurance Agency (NDIA) - Complex Support Needs Team, Amiable Care an accommodation and support service provider and the Disability Justice Service (DJS) provided by the Department of Communities which helps with the reintegration into the community of disabled prisoners.
In addition to the information in the various reports I have received, at hearings on 19 April and 23 April 2024 I heard evidence from representatives of each of those contributing to that effort.
DJS Coordinators have assessed Mr Altieri and found he was at an 'extremely low range' of functional capacity. They offered some insight and suggestions on how best to support Mr Altieri should he be released to the community.
In the period up to May 2023, an updated Functional Needs Assessment of Mr Altieri was made by Ms Hickey, the OT, to obtain a better idea of how much support he needs in his day‑to‑day life. That updated Functional Needs Assessment was used to support a further application to NDIS for the purpose of obtaining funds for counselling or education to improve his day‑to‑day functioning and for funds to provide appropriately supportive accommodation in the event of release into the community.
DJS clinicians have accepted a referral from Mr Altieri's SSC for transitional support planning to support to Mr Altieri in the community and to help accommodation and support workers to understand how Mr Altieri's disability may increase the risk of harm to the community as well as Mr Altieri. While support of this type is usually only for a six‑month period, DJS have indicated that in appropriate cases such as Mr Altieri's, support can be continued indefinitely.
Ms Hickey has also started to develop goal setting strategies with Mr Altieri because Mr Altieri has a limited understanding of goals he might have for his day‑to‑day life or for any counselling for his alcohol abuse and sexual education. Up until May 2024, Ms Hickey and the DJS clinicians have independently continued to meet with Mr Altieri in custody to continue to develop his capacity for 'goal setting and insight', provide support and skills training.
Mr Altieri has been further assessed by his PBSP and his OT with a view to ensuring that any specialised counselling which he may in due course receive would be understood by him.
NDIS funding applications have been successful for appropriate levels of funding for supported living accommodation on a 1:1 basis for 12 weeks to reintegrate Mr Altieri into the community and thereafter on a 1:2 basis. What this means is that there is accommodation provided by Amiable Care in a house for Mr Altieri with a care worker present 24 hours a day at the house with 8 of those hours being active support in the form of helping him to develop skills in looking after himself more adequately, learning to cook properly, dealing with him going shopping, getting him to and attending appointments including for any counselling, making steps towards development of skills that may lead to him finding some supported employment and keeping him company.
After those 12 weeks it is anticipated that Mr Altieri would be paired with another male person also in need of supported accommodation and there would then be two people living in appropriate accommodation along with a care worker 24 hours a day.
One of the care workers roles is to develop Mr Altieri's ability to make better decisions. There is a zero alcohol or drugs policy within the home and care workers are trained in deflecting the persons under their care from pursuing alcohol or drugs but they are not able to prevent people under their care from leaving the premises and seeking out alcohol, they are trained in keeping their charges busy, deflecting them and in taking steps to let the interdisciplinary team, including Ms Altieri, know if Mr Altieri were to leave the home inappropriately.
While Mr Altieri could not be subject to restrictions in the form of being secured into the house, steps have been taken to install an alarm system to ensure that if he does leave the care worker will receive an alarm.
Amiable Care has experience in dealing with disabled youths and adults who have been released to the community by the criminal justice system including people on bail and on parole.
Despite the efforts of the various agencies, Mr Altieri has not yet received:
1.Counselling specifically addressing alcohol abuse. Difficulties have been encountered because:
1.1Mr Altieri's disabilities make him unsuitable for the usual programs directed to substance abuse offered to prisoners with more mainstream needs and there were also the security concerns for Mr Altieri if he were to attend a mainstream program.
1.2There would not appear to be any 'ready to wear' services which would be helpful for someone with Mr Altieri's disabilities.
1.3No 'in house' counselling services from the prison psychologist have been forthcoming. So far as I can ascertain because:
1.3.1In October 2023, there was a concern among the interagency group that counselling by the Prison Health Services may amount to overservicing of Mr Altieri given that a range of other supports for behavioural and capacity building sessions which were then being provided to the accused. I refer to those other services above; and
1.3.2In February 2024, a new request for psychological counselling by the prison psychologist was made but a question arose as to whether the NDIS supports then available could be used to provide training to the prison psychologist to ensure that counselling was meaningful to the accused. From this I infer that even the prison psychologists are not sufficiently specialised to develop a program for Mr Altieri.
1.3.3South East Metro Drug and Alcohol Services have accepted a referral to provide drug and alcohol counselling to Mr Altieri in the event that he is released into the community. That service would be assisted by Mr Altieri's PBSP to ensure that services were delivered in a way which is meaningful to him.
2.Sexual counselling and education. Difficulties have been encountered because:
2.1There was a delay in submitting a referral to the Sexual Education Counselling and Consultancy Agency and an alternative, Sexual Health Quarters.
2.2A referral to a forensic sexologist, Ms Terpou, to provide sexual health and education to Mr Altieri was accepted in August 2023 but Ms Terpou's application for Official Visitor status was refused because of 'resourcing issues' at Casuarina Prison apparently because the prison could not facilitate the number and frequency of visits to the official visitor's rooms which would be required. At the time of the recent hearing Ms Terpou had finally met with Mr Altieri on one occasion. She has almost exhausted the funding specifically allocated to her but there is some further money in the NDIS budget for her to provide counselling. Counselling would be much more readily facilitated in the community.

Amiable Care have indicated that carers are trained to reinforce any drug and alcohol and sexual health and education counselling which Mr Altieri received. It is anticipated that carers would attend counselling sessions with Mr Altieri.
Ms Altieri has given evidence that she will not be providing cash to Mr Altieri and that he will either be provided with a restricted debit card which can only be used at certain shops such as Woolworths and Coles or that funds will be provided through Amiable Care for the support workers to reduce his ability to purchase alcohol.
Ms Altieri has said she will approach a bottle shop closest to the proposed accommodation and instruct the bottle shop as Mr Altieri's guardian to not supply alcohol to him.
Further, Mr Altieri can only receive visitors twice a week at any accommodation supplied by Amiable Care. There is a sign in and out sheet and Amiable Care would restrict entry to anyone who Ms Altieri indicates is not suitable to be meeting with Mr Altieri.

The public interest

The State accepted that there was a public interest in ensuring that a person who was mentally ill or intellectually impaired received proper care and treatment with the least restriction to their freedom.
It was acknowledged by Hall J in The State of Western Australia v Huggins[8] that there was a public interest in ensuring that a person who is not mentally competent not be a risk to the community or any caregivers and a public interest in ensuring that a person who is not mentally competent is humanely treated.
[8] The State of Western Australia v Huggins [45] - [46].
In The State of Western Australia v S U [No 2][9] Sleight CJDC helpfully outlined some further considerations that should be addressed in a consideration of the public interest. I repeat what his Honour said here as I cannot say it any better than his Honour:
[9] The State of Western Australia v S U [No 2] [2017] WADC 20 [44] ‑ [57].
44The concept of 'the public interest' is necessarily a wide concept. The public interest involves a consideration of all factors: The State of Western Australia v Sanders [2012] WASC 409. In the matter of Hogan v Hinch [2011] HCA 4, French CJ stated at [32] that where a statute makes reference to a public interest component to a decision of a court, then the court must assess public interest by reference to any statutory scheme, the purpose of the Act as a whole and the purposes of any orders made under the Act.
45To give proper consideration to the public interest component of the criteria set out in s 24 of the Act, it is necessary to take into account what is the effect of a custody order.
46Section 19(4) of the Act only provides the court with two choices, being an unconditional release or a custody order. There is no provision for the court to make a conditional release order providing for supervision in the community. This has been criticised in the past as being a deficiency in the legislation: The State of Western Australia v Tax [2010] WASC 208 per Martin CJ [18]. A custody order remains in place until discharged by the Governor. The Board is required to provide a report to the Minister at least once every year and recommend whether or not the Governor should be advised to release the mentally impaired accused. The Governor may at any time order that a person subject to a custody order be released by either making an unconditional release order or a release order with conditions.
47A second deficiency exists in the legislation by virtue of the limited options of where the accused will be detained if a custody order is made. The options available are set out in s 24 of the Act, which provides (as per amendments which came into effect as at 30 November 2015):
24.General effect of custody order
(1)A mentally impaired accused is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Board, until released by an order of the Governor.
(2)A mentally impaired accused is not to be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated.
(3)A mentally impaired accused should be detained in an authorised hospital only if the Board is satisfied -
(a)the accused has a mental illness requiring treatment;
(b)that, because of the mental illness, there is -
(i)a significant risk to the health or safety of the accused or to the safety of another person; or
(ii)a significant risk of serious harm to the accused or to another person;
and
(c)the accused does not have the capacity to consent to treatment; and
(d)the treatment can only be provided satisfactorily in an authorised hospital.
(4)Subsection (3) is a directory provision.
(5A)A mentally impaired accused is not to be detained in a declared place that is established by the Disability Services Commission under the Disability Services Act 1993 (a DSC declared place) unless the Board-
(a)is satisfied that the accused is a person with disability as defined in the Disability Services Act 1993 section 3 and the predominant reason for the disability is not mental illness; and (b) is satisfied that the accused has reached 16 years of age; and (c) has regard to the degree of risk that the accused's detention in the declared place appears to present to the personal safety of people in the community or of any individual in the community.
(5B)The Board may determine that a mentally impaired accused be detained in a DSC declared place only if the member referred to in section 42(1)(bb) is present at the meeting at which the custody order is made.
(5C)Despite subsection (1), even if the Board determines that a mentally impaired accused should be detained in a DSC declared place, the accused is not to be detained in a DSC declared place without the consent of the Minister to whom the Disability Services Act 1993 is for the time being committed.
(5D)A mentally impaired accused is not to be detained in a detention centre unless the accused is under 18.
48By virtue of this provision there are three options available, namely:
1.The accused is to be detained in an authorised hospital.
2.The accused is to be placed in a declared place.
3.The accused is to be held in either a detention centre (in the case of juveniles) or a prison (in the case of adults).
49An accused cannot be detained in an authorised hospital unless the accused has a mental illness which requires treatment. The accused in this matter does not suffer from a mental illness but an intellectual disability, which under the definition of a mental impairment under the Act is treated as something distinct from a mental illness. Accordingly, the accused cannot be held in an authorised hospital. That reduces the options of where the accused will be detained if a custody order is made to either a declared place or a prison.
50Up until recently there existed no declared places to which a person under a custody order could be taken. This meant that if a person's mental impairment was due to an intellectual disability then that person would have to be placed in a detention centre (as a juvenile) or a prison (as an adult). The inadequacy and unfairness of this for a person who is not serving a sentence and is suffering from an intellectual disability speaks for itself: See The State of Western Australia v Tax [20]. The position has slightly changed with the passing of the Declared Places (Mentally Impaired Accused) Act 2015. The Board under s 24 of the Act can make a recommendation that a person be placed in a declared place. In making a recommendation that a person be placed in a declared place, the Board must give priority to the consideration of the protection and safety of the community.
51However, even if the Board makes a recommendation that an accused person be placed in a declared place, the Minister must give his or her consent to the placement. The independent analysis of the Bennett Brook Disability Centre by the Hon Peter Blaxell and Prof Colleen Hayward AM commented that even if the Board makes a recommendation for an accused person to be detained at the declared place, the Minister does not always agree with the Board's determination. The analysis further stated that 'it is clear that the Minister takes a fresh independent approach to the risk of any proposed placement and is quite cautious in granting her consent.'
52In my opinion, it is clear that a major consideration that the court should have regard to in deciding whether it is in the public interest to make a custody order is the risk of the accused offending in the future if released and the danger that risk poses to the community. Although s 19(5) of the Act makes no express reference to this factor there are other provisions in the Act which suggest that it is an important factor to take into account. For example, s 24(5A) of the Act provides that a mentally impaired accused should not be detained in a declared place unless the Board has regard to the degree of risk that the accused's detention in the declared place appears to present to the personal safety of people in the community or of any individual in the community.
53Likewise, under s 5 of the Declared Places (Mentally Impaired Accused) Act 2015, persons performing functions under that legislation are subject to 'paramount considerations' which must be observed by an officer performing any function under the legislation. These paramount considerations, in order of priority, are:
(a)the protection and safety of the community;
(b)the protection and safety of residents (that is persons who have been placed in the declared place); and
(c)the best interests of residents who are not adults.
54However, the degree of risk of re-offending is not the only consideration. It is also in the public interest that people with mental illnesses are provided with the best possible treatment and care; and with the least restriction of their freedom and the least interference with their rights and dignity. Under s 5(2) of the Declared Places (Mentally Impaired Accused) Act 2015, one of the fundamental requirements is that:
Residents are to be provided the best possible training, including development programs that promote their physical, mental, social and vocational abilities.
55Also, pursuant to s 6 of the Declared Places (Mentally Impaired Accused) Act 2015, programmes and services for persons placed in the declared place must be designed and administered so as to provide a balance between protecting the community and also providing proper care and support for a person in a declared place. This balance under the section is achieved by requiring the programmes and services to be designed and administered so as to:
•Respect the rights of residents to be treated with dignity, courtesy and compassion; without discrimination or stigma; and with equality of opportunity [s 6(1)];
•Be sensitive and responsive to the diverse and individual circumstances and needs of residents taking into account their age, gender, spiritual beliefs, culture or linguistic background, family and lifestyle choices [s 6(2)];
•Reduce the risk of persons placed in the declared place offending or reoffending [s 6(4)(a)];
•Assist residents to live, work and participate in the community and be as independent as possible [s 6(4)(b)];
•Maximise quality of life for residents [s 6(4)(c)]; and
•Assist residents to be trained, developed and cared for in a manner that is the least restrictive option in the circumstances taking into account the need for protection and safety of residents and the community [s 6(6)].
56From these provisions I conclude that when considering the public interest, it is important to take into account that it is in the interests of the community that the accused be provided with skills and training and other forms of support to enable him to better cope with his mental impairment. In broad terms this could be described as rehabilitation, although of course, nothing can be done to improve his mental impairment. In Hogan v Hinch, French CJ at [32] stated in relation to provisions which provided for post custodial supervision and rehabilitation of sex offenders as follows:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
57The issue of rehabilitation was held to be a relevant consideration in relation to whether a custody order should be made under the Act in the matter of The State of Western Australia v TJH [2011] WADC 183 at [74], in which Keen DCJ in his decision stated that the public interest considerations are threefold. Firstly, there is the rehabilitation of the accused; secondly, the minimisation of the risk of re-offending; and thirdly, the protection of the public (see also The State of Western Australia v Coomer [2015] WADC 156, Davis DCJ at [43]).
The State submitted that Mr Altieri should not be released because of the seriousness of the facts alleged against him and the degree of risk to the community is not sufficiently ameliorated by the proposals for his supported accommodation in the community. The State says that risk continues because Mr Altieri has, as yet, unmet treatments needs.
The State says that the fact that Mr Altieri has not, in the more than five years since he was remanded in custody on 23 February 2019, received any counselling to address his alcohol abuse or to provide him with appropriate sexual education and counselling. Accordingly, I should not be satisfied that the risk to the community is sufficiently ameliorated to make a release order.
The need for Mr Altieri to receive counselling and education of that type was identified in Dr Brett's report dated 27 July 2021. The matter first came before me in November 2022 and since then a great deal of effort has been put into trying to deliver to Mr Altieri, while he is in custody, counselling which can be delivered in an effective way given the limits of his understanding.
So far, Community Corrections in conjunction with NDIS‑funded professionals have not been able to achieve this.
The external provider for sexual health education counselling was initially refused official visitor status because the prison has insufficient resources and has only just managed to start that counselling.
Further, for the reasons outlined by Sleight CJDC in S U, if I make a custody order there is no guarantee that the Board would make a recommendation that Mr Altieri be placed in a declared place where it may be easier to provide those services or that the Minister would approve the Board's recommendation. The 2021 - 2022 Annual Report for the Disability Justice Centre states that only a very small number of prisoners resided at the Centre in that year.
The 2022 - 2023 Annual Report for the Disability Justice Centre does not appear to be available online.
The principal risk factors for Mr Altieri in the community are when he is unsupervised and when he drinks alcohol. It should be noted that while it seems to be accepted that Mr Altieri did not have an appropriate sexual understanding or boundaries prior to him moving from his parents' home shortly before this offending and he engaged in binge drinking in that time, he is not alleged to have offended before he was living in the community on an unsupervised basis on his own.
Considerable steps have been taken to obtain for Mr Altieri, should he be released, a place to live in supported accommodation. While living in supported accommodation Mr Altieri cannot be forced to stay in at night and nor can he be forced to abstain from drinking alcohol.
However, it is also clear that Mr Altieri does respond to a structured environment. He has been, while in custody, a model prisoner. What is proposed for him is a structured environment with 24‑hour carers available to supervise and assist him in the community.

Conclusion

I conclude that in the circumstances of this case it is not appropriate that I make a custody order for the following reasons:
1.Mr Altieri has not been convicted of any offence. He is presumed innocent even though the case against him is, in my view, a strong one. This, on its own, is not enough to require a custody order.
2.This alleged offending occurred when Mr Altieri was living, for the first time, on his own. Arrangements have been put in place to ensure that the accommodation for which he would be eligible if he were released is supported accommodation with support from NDIS funding and the Disability Justice Services.
3.The proposed accommodation is in an area which does not raise concerns with Community Corrections.
4.Mr Altieri has not been in a position to offend again whilst in custody, rather he has been a model prisoner. He responds to structure and is keen to ensure that he is not returned to custody.
5.Some progress has been made in his rehabilitation but it is clear to me that his rehabilitative needs have not been met in the custodial environment and are unlikely to be met.
6.If a custody order is made there is a real possibility he will not be placed in a declared place. This means that he will be held in prison indefinitely, although if and when the new legislation is proclaimed, he may have a limiting term set.
7.Mr Altieri is at risk in the prison environment. He is himself a very vulnerable person and while he has been well managed in terms of his safety so far there is no suggestion that his needs other than safety, feeding and clothing are being met.
8.I am not satisfied that Mr Altieri has or will be provided with the best possible treatment or care given his intellectual deficits while in custody. The public interest requires that he be subject to the least restriction of his freedom and the least interference with his rights and dignity.
9.The supported accommodation proposed for him should provide him with 24/7 care which will keep him engaged and occupied and will help him to avoid drinking. Ms Altieri, his guardian, is in control of his money and can give instructions as to how he should be dealt with and Amiable Care are committed to ensuring that he is placed with appropriate carers who can facilitate him forming new supportive relationships.
10.It is anticipated that he will be able to receive appropriate counselling in the community and Dr Brett's view is that this will minimise the risks of him reoffending.
11.Mr Altieri has been in custody for more than five years. The suggestion that Mr Altieri should be kept in the system which has let him down in terms of providing adequately for his rehabilitation for an indefinite period of time or even a limited term where there is no guarantee that his rehabilitation needs can or will be met is a difficult one.
Accordingly, I conclude that an order for release should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AP
Associate
14 MAY 2024