The State of Western Australia v B P

[2019] WADC 63

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- B P [2019] WADC 63

CORAM:   LONSDALE DCJ

HEARD:   19 MARCH 2019

DELIVERED          :   2 MAY 2019

FILE NO/S:   IND 2065 of 2017

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

B P

Catchwords:

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

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)
Criminal Code (WA), s 321(2), s 321(4), s 557K(4)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 5, s 8, s 9, s 10, s 12, s 17, s 19, s 19(1), s 19(4), s 19(5), s 24(5A)(C), s 24(5C), s 35(5)(a)
Criminal Procedure Act 2005 (WA), pt 3 div 4
Declared Places (Mentally Impaired Accused) Act 2015 (WA)
Mental Health Act 2014 (WA)

Result:

Custody order

Representation:

Counsel:

The State of Western Australia	:	Mr D J Thiering
Accused	:	Ms A M Padmanabham

Solicitors:

The State of Western Australia	:	The State of Western Australia
Accused	:	Alana Padmanabham Barrister & Solicitor

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

The State of Western Australia v S U [2017] WADC 20

LONSDALE DCJ:

Introduction

1. The accused is charged with one count of indecent dealing with a child over the age of 13 and under the age of 16 contrary to s 321(4) of the Criminal Code and two counts of sexual penetration of a child over the age of 13 and under the age of 16 contrary to s 321(2) of the Criminal Code.

2. The offences are alleged to have occurred between 11 November 2015 and 31 August 2016 at Roebourne when the accused was 52 years of age and the victim was 14 years of age.

The issue of fitness to plead

1. The matter first came before this court on 10 February 2018 and the issue of the accused's fitness to plead was raised.  Subsequently, there were a number of hearings in this court. 

2. The matter came before me on 19 March 2019 to determine the question of the accused's fitness to plead and what consequential orders, if any, should be made.

3. The allegations are in summary as follows.  Between 11 November 2015 and 31 August 2016, the victim went to the accused's home in Roebourne on one occasion.  She was in the accused's bedroom.  He pulled down his pants and manipulated his penis in front of her.  On a further occasion, the victim was outside the accused's home.  The accused used sign language to convey that he wished to have sex with her.

4. On a further occasion, the victim was in the accused's bedroom and asked him for money.  He locked the door and gave her $70.  The accused licked her vagina.  She then got on top of the accused and he attempted to penetrate her vagina but was unable to do so.  The accused then rubbed his penis between her labia majora until he ejaculated in a towel.

5. On 3 September 2016, the accused was arrested and taken to the Roebourne Police Station.  He made frank admissions to police, explaining that the victim needed the money to buy drugs.  He said that she was a 'cheap fuck'.  He described himself as a sexual predator.

History of proceedings against the accused

1. When the accused was arrested by police on 3 September 2016 he was interviewed on video. He was observed to be exhibiting strange behaviour. He was remanded in custody and appeared in the Magistrates Court before being committed to this court pursuant to the procedure set out in s 17 of the Criminal Law (Mentally Impaired Accused) Act1996 (CLMIA Act) and pt 3 div 4 of the Criminal Procedure Act 2005.

The issues before me

1. There are two issues for me to determine.

2. The first issue is whether the accused is mentally fit to stand trial and, if not, whether he will become mentally fit to stand trial within six months. If I am not so satisfied, then I must make an order dismissing the charge and quashing the committal without deciding the guilt or otherwise of the accused and either release him or make a custody order pursuant to the provisions of s 19(1), s 19(4) and s 19(5) of the CLMIA Act which provides:

   19.Procedure

   (1)If the judge who decides that the accused is not mentally fit to stand trial –

   (a)is satisfied that the accused will not become mentally fit to stand trial within 6 months after the finding that the accused is not mentally fit, the judge must make an order under subsection (4); or

   (b)is not so satisfied, the judge must adjourn the proceedings in order to see whether the accused will become mentally fit to stand trial.

   …

   (4)An order under this subsection is an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal, without deciding the guilt or otherwise of the accused and either -

   (a)releasing the accused; or

   (b)subject to subsection (5), making a custody order in respect of the accused.

   (5)A custody order must not be made in respect of an accused unless the statutory penalty for the alleged offence is or includes imprisonment and the judge is satisfied that a custody order is appropriate having regard to -

   (a)the strength of the evidence against the accused; and

   (b)the nature of the alleged offence and the alleged circumstances of its commission; and

   (c)the accused’s character, antecedents, age, health and mental condition; and

   (d)the public interest.

   …

The first issue - fitness to stand trial

1. Section 10 of the CLMIA Act provides as follows:

   10.Presumptions as to mental fitness to stand trial

   (1)An accused is presumed to be mentally fit to stand trial until the contrary is found under this Part.

   (2)An accused found under this Part to be not mentally fit to stand trial is presumed to remain not mentally fit until the contrary is found under this Part.

2. An accused person will not be fit to stand trial if he meets any of the criteria outlined in s 9 of the CLMIA Act which 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.

3. The question of whether the accused is mentally fit to stand trial is for me to determine after enquiring into the question and informing myself in any way I think fit.[1] 

   [1] Section 12 CLMIA Act.

The evidence relating to the accused's fitness to plead

1. The parties have agreed that I should have regard to the following material:

   (a)statement of material facts (brief 1499614-1);

   (b)criminal history of the accused;

   (c)prosecution brief filed in relation to IND 2065 of 2017;

   (d)sentencing transcript for 13 May 2011 before Scott DCJ on KAR 5 of 2011;

   (e)psychiatric report by Dr Siva Bala to Karratha Magistrates Court dated 31 January 2017;

   (f)psychiatric report by Dr Gosia Wajnarowksa to Perth Magistrates Court dated 27 February 2017;

   (g)psychiatric reports of Dr Ahmed Zakareia and Dr James Hickey to Perth Magistrates Court dated 17 May, 7 June and 14 June 2017;

   (h)psychiatric report of Dr Siva Bala to Karratha Magistrates Court dated 21 August 2017;

   (i)psychiatric report of Dr Aleksandar Janca to Perth District Court dated 21 July 2018; and

   (j)neuropsychological report of Dr Mandy Vidovich dated 28 November 2018.

2. It is common ground between the parties that the accused is not mentally fit to stand trial and will not become mentally fit to stand trial within six months.

3. I agree with that assessment based on the evidence which has been put before me.  A summary of that evidence is as follows.

4. Dr Siva Bala provided a report dated 31 January 2017.  At that time, Dr Bala was unable to confidently make a diagnosis of mental ill illness because he was only able to interview the accused via the videoconference medium.

5. Relevantly, however, Dr Bala noted that the accused spoke about social, cultural and spiritual factors which raised the possibility of a psychotic disorder and also an emerging cognitive disorder such as frontotemporal or Alzheimer's type dementia.

6. Dr Bala found that the accused was not mentally fit to stand trial.  He said that the accused was unable to demonstrate an understanding of the nature of the charges, was only able to demonstrate a superficial understanding of pleading guilty, was unable to understand the purpose of a trial and did not understand the concept of the jury.  Although Dr Bala thought that the accused would be likely to be able to follow the course of the trial, he doubted that he could meaningfully instruct counsel.  Dr Bala said he would need assistance in understanding the substantial effect of the evidence but his understanding would be limited by the level of thought disorder.[2]

   [2] Report of Dr Siva Bala dated 31 January 2017 at pages 6 – 8.

7. Dr Wajnarowksa provided a report dated 27 February 2017. In that report, she detailed having spoken to the accused face to face. She found that the accused fulfilled the criteria for psychotic disorder (most likely schizophrenia) and concluded that the accused suffered from a mental impairment as defined by s 8 of the CLMIA Act. She found that the accused was not fit to stand trial because he was unable to understand the nature of the charge, the ability to understand the purpose of a trial, the ability to understand or exercise the right to challenge jurors, the ability to follow the course of the trial and the ability to understand the substantial effect of evidence or properly defend the charge.[3]

   [3] Report of Dr Gosia Wajnarowksa dated 27 February 2017 at pars 5 – 6.

8. Dr Wajnarowksa said that the accused suffered from a psychotic spectrum disorder, the exact nature of which remained unclear. She recommended that the accused be referred for further assessment and treatment to the Frankland Centre on a hospital order.

9. In May 2017, the accused was referred to the Frankland Centre pursuant to s 5 of the CLMIA Act. He remained there for 61 days before being returned to the Roebourne Prison to be closer to family and country.

10. Doctor Ahmed Zakareia and Dr James Hickey provided a joint report dated 14 June 2017 regarding the accused's admission to the Frankland Centre.  The report found that the accused's behaviour on admission was consistent with psychosis.  During his admission there was no evidence of violence and no management difficulties.  It was noted that he consistently requested being returned to Roebourne prison to be closer to family and country.

11. The report referred to multiple investigations including a head MRI and neurocognitive testing.  Doctors Zakareia and Hickey diagnosed organic psychosis of undetermined origin with a differential diagnosis of schizophrenia.  The report noted that the accused had been prescribed oral antipsychotic medication and that, at the time of the report, the psychosis was resolving.  They expressed the opinion that the accused no longer required forensic inpatient management.

12. Importantly, they made the following observations:

    We feel that the Frankland Centre environment, and his distance from country and culture may be an exacerbating factor for his ongoing psychosis, and recommend that the Court consider remanding him to a location as close to his community as possible.  This may also facilitate access to an interpreter for his rare language, and assist in his formal fitness to stand trial assessment should you order this.[4]

    [4] Report dated 14 June 2017.

13. Dr Bala provided a further report dated 21 August 2017.  Dr Bala found that the accused had been diagnosed with a psychotic disorder and major neurocognitive disorder; he expressed the opinion that this may have been due to a previous head injury or dementia syndrome.  Dr Bala said that (although the accused had received antipsychotic medication which had resulted in mild improvement) he remained unfit to plead and may never become fit.[5]

    [5] Report of Dr Bala dated 21 August 2017 at pars 5 – 6 and 23.

14. The most recent report was provided by Dr Aleksandar Janca and is dated 21 July 2018.  Dr Janca conducted a face to face assessment of the accused with the assistance of an interpreter in the Yindji Barndi language.  Dr Janca diagnosed the accused as suffering from major neurocognitive disorder, the possible cause of which was traumatic brain injury.  He noted a prior diagnosis of dementia syndrome.[6]

    [6] Report of Dr Aleksandar Janca dated 21 July 2018 at pars 19 and 20.

15. Dr Janca's opinion was that, although at the time of the report the accused did not have prominent psychotic symptoms, this was likely due to him receiving medication whilst in custody. Dr Janca also diagnosed significant cognitive decline in the areas of complex attention, concentration, executive function, learning memory and language.[7]  He expressed the opinion that the accused was neither fit to plead nor stand trial.[8]

    [7] Report of Dr Aleksandar Janca dated 21 July 2018 at pars 18 and 19.

    [8] Report of Dr Aleksandar Janca dated 21 July 2018 at par 4.

16. Dr Janca recommended that the accused receive ongoing antipsychotic treatment and that his mental state and compliance with treatment be monitored by a psychiatrist on a regular basis; also, that he might benefit from annual neuropsychological assessment.  She recommended that the accused be placed in a supported environment or facility in which his mental state and compliance with medications can be monitored.  Dr Janca expressed concern about the accused's ability to live independently without risk to self or others and recommended a guardianship and/or administration order.

17. The accused was referred for neuropsychological assessment on 24 October 2018 with Dr Mandy Vidovich who provided a report dated 28 November 2018.  Dr Vidovich found that the accused met the diagnostic criteria for Major Neurocognitive Disorder.  She said it was unlikely that the accused's cognitive dysfunction was attributable to late onset schizophrenia or psychotic spectrum disorder alone.

18. She found that the accused was unfit to plead and stand trial and will remain so for the foreseeable future.  Dr Vidovich made the following relevant observations about his care needs:

    Beyond a custodial environment, he would require placement in a residential care facility, as he would not be capable of safely living independently.  Guardianship and Administration orders would need to be enacted, particularly if there are no close, trusted family members to provide supported decision making and financial oversight.[9]

    [9] Report of Dr Mandy Vidovich dated 28 November 2018 at page 7.

19. Dr Vidovich addressed the accused risk of re‑offending as being influenced by his own actions and opportunities available to him rather than him being able to actively seek out those opportunities.  However, she noted that he would not be able to safely live independently and would need placement in a residential care facility.

20. Dr Vidovich suggested that the accused would require review by the Aged Care Assessment Team and suggested the possibility of an application to an aged care facility in Roebourne such as Yaandina.  She noted that the accused's cognitive impairment and frailty would place him at high risk within the prison environment.  She considered it unlikely that the prison would have the capacity to manage his care needs were he to continue to decline as he would require assistance with showering, dressing and toileting.[10]

    [10] Report of Dr MandyVidovich dated 28 November 2018 at page 9.

My finding

1. On the basis of the foregoing, I find on the balance of probabilities that the accused is not fit to plead because of a combination of mental illness and major neurocognitive disorder.

2. The evidence overwhelmingly establishes that there is no realistic prospect that the accused will become fit to plead in the next six months and that his neurocognitive condition is likely to result in further cognitive decline.

What orders are to be made

1. Having satisfied myself that the accused is not fit to plead and is unlikely to become fit within the next six months, I must follow the procedure set out in s 19(4) of the CLMIA Act.

2. There is presently no indictment so I will order that the charge be dismissed and quash the committal without deciding whether or not the accused is guilty or otherwise.

3. I turn now to consider the various factors I am required to consider under s 19(5) of the CLMIA Act.

The strength of the evidence against the accused

1. I have read the prosecution brief and it is apparent that the case against the accused is a strong one: The victim participated in a recorded interview in which she detailed sexual offences perpetrated by the accused against her. 

2. At the hearing before me there was no challenge by the accused's counsel to the suggestion that the prosecution case was strong.

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

1. The present offences are very serious and involve allegations that the accused behaved in predatory sexual conduct towards young girls.  By his own admission, the accused was a 'sexual predator'.  The public is entitled to be protected from that conduct. 

2. However, I consider the protection of the public to be a factor which is less important given the opinion of Dr Vidovich that (due to his mental state) he is unlikely to actively seek out opportunities to sexually offend.

3. Nevertheless, the accused remains a risk of re‑offending given the opportunity to do so.  That is a factor which I cannot ignore.

The accused's character

1. The accused is not of good character and has several convictions for a variety of offences, including sexual offences.  I note the following relevant prior convictions.

2. The accused was convicted in the Roebourne Magistrates Court on 21 May 2005 of an offence of consorting by child sex offenders contrary to s 557K(4) of the Criminal Code.

3. On 13 May 2011 the accused was convicted of the sexual penetration of a child over the age of 13 and under the age of 16 contrary to s 321(2) of the Criminal Code. 

4. On 4 November 2015, the accused was convicted of failing to comply with report obligations under the Community Protection (Offender Reporting) Act 2004 (WA).

The accused's antecedents

1. The accused is a traditional indigenous man who has lived in various communities and towns in the Pilbara.

2. He reports having two daughters aged 31 and 25 who both live Karratha. He has no contact with them.  He was unable to provide Dr Wojnarowska with any more detail of his family or their whereabouts.  He reported however that his home was in Roebourne and he hoped to return there soon.

The accused's age

1. The accused is presently 56 years of age having been born on 23 December 1963.

The accused's health

1. The accused is undoubtedly in poor mental health.  He was observed by Dr Vidovich to present as frail, vague and confused and had difficulty performing motor movements.

The public interest

1. The State submits that the public interest requires that the accused be kept in custody because of his risk of re‑offending. 

2. The State frankly acknowledges that there is also a public interest in attempting to ensure that the accused is housed humanely and receives medication and support for his conditions.  The State concedes that there are no beds at an appropriate mental health facility and no capacity for him to receive treatment under the Mental Health Act 2014 (WA). Further, there is no available voluntary treatment at an inpatient facility close to his home.

1. It has been observed in a number of cases that there is a deficiency in the legislation in that the court is unable to make a conditional release order providing for supervision in the community.  The court is left with the choice only of making an unconditional release order or a custody order.  I respectfully adopt the observations of his Honour the Chief Judge in the case of The State of Western Australia v S U [2017] WADC 20 [45] ‑ [47] where his Honour said:

   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.'

2. In this case, the accused suffers from a mental illness for which he has received treatment.  However, according to the medical evidence, he is no longer psychotic and therefore not requiring hospitalisation.  Accordingly, although he could be held in an authorised hospital, he is unlikely to be considered suitable to be detained there.  Another relevant factor is the opinion of the doctors at Graylands that his detention away from his country had resulted in a deterioration of his mental state.

3. The accused might be eligible for admission to a facility which is a declared place under the Declared Places (Mentally Impaired Accused) Act 2015. However, for this to happen, it would require the Board to make a recommendation as to his suitability for placement in a declared place. In making such a recommendation, s 24(5A)(c) and s 35(5)(a) of the CLMIA Act requires the Board to give priority to the protection and safety of the community. Even if the board were to make a recommendation that the accused be placed in a declared place, it would require the Minister to give consent to the placement.[11]

   [11] Section 24(5C) of the Criminal Law (Mentally Impaired Accused) Act 1996.

4. As his Honour the Chief Judge, however, observed in The State of Western Australia v S U, the degree of risk of re‑offending is not the only consideration. His Honour said [54] ‑ [56]:

   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 re-offending [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.'

Conclusion

1. In my view, the most important consideration is the risk to the community if he were to reoffend.

2. The accused has a substantial history of offending which includes offending sexually against children.  His history of offending and the attitudes he has expressed to various mental health professionals suggest he remains a risk of re‑offending.  What the accused has said to his doctors also suggests he blames the victims for making themselves available to him and that he believes he is in a position of authority in the community. 

3. At present, despite the fact that he is physically frail, there is no evidence to suggest he would be incapable of re‑offending in a similar manner.  

4. There is no evidence that the accused would be able to receive the continued treatment and monitoring that would be required to reduce the risk to the public should he be released unconditionally.

5. For the foregoing reasons, I have determined that I should make a custody order.

6. I accept that the accused has not been convicted of any offences relating to the allegations and he remains presumed to be innocent of those charges.  However, the strength of the State case is such that it militates in favour of a finding consistent with the complaint.

7. There is no evidence that the accused has been rehabilitated or is likely to be able to be rehabilitated.  There is no evidence as to how his affairs are to be managed whether by the Public Trustee or another guardian. There is no evidence that he is likely to receive any support upon release into the community.

8. Whilst it seems likely that he is unable to be placed into a declared place and there is the potential for him to be held in prison indefinitely, there is a process of review for his situation by the Board.  I note that in the annual report of the Board for 2017 and 2018, the Government in Executive Council reviewed a number of conditional release orders (three) which is consistent with the board conducting regular reviews of mentally impaired accused.[12]  This gives me some comfort that his case will be reviewed on a regular basis.

   [12] Review of the Mentally Impaired Accused Review Board Annual Report 2017/2018.

Orders

1. There will be a custody order pursuant to s 19(4) of the CLMIA Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

IG
Associate to Judge Lonsdale

2 MAY 2019