The State of Western Australia v Billing - [2019] WADC 116

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BILLING [2019] WADC 116
CORAM:   BOWDEN DCJ
HEARD:   11 AUGUST 2019
DELIVERED          :   15 AUGUST 2019
FILE NO/S:   IND 653 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
LUKE CHARLES BILLING

Catchwords:

Criminal law - Criminal procedure - Fitness to stand trial

Legislation:

Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)

Result:

Accused found unfit to stand trial
Custody order made

Representation:

Counsel:

Applicant	:	Mr R Owen
Accused	:	Mr S Rafferty

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Seamus Rafferty Barristers & Solicitors

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

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Nagatayi v The Queen (1980) 147 CLR 1
R v Dunne [2001] WASC 263
R v Gardiner (1999) 21 SR (WA) 316
R v Gardiner (No 3) (2000) 24 SR (WA) 136
R v Lindley [2003] WADC 41
R v Presser [1958] VR 45
R v Robson [2001] WADC 133
R v T (2000) 109 A Crim R 559
The State of Western Australia v B P [2019] WADC 63
The State of Western Australia v Chokolich [2018] WASC 220
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 Stimpson [2019] WASC 279
The State of Western Australia v Tax [2010] WASC 208
The State of Western Australia v Truong [2017] WASC 289
The State of Western Australia v T‑S [2019] WADC 40

BOWDEN DCJ:

Mr Billing is charged with seven counts of sexual penetration of EMP without her consent, offences allegedly occurring on 20 March 2016 at East Perth.

The procedural background

Mr Billing was charged on 1 September 2016. At that time he was an involuntary patient under the Mental Health Act 2014 (WA) at the Joondalup Health Campus in a locked ward.
When he appeared in the Magistrates Court on 5 September 2016 he was transferred to the Frankland Centre pursuant to a hospital order.
On 15 January 2017 Mr Billing was granted bail on conditions which included complying with the lawful directions of a treating psychiatrist.
On 12 April 2017 the matter was committed for trial to the District Court and at a trial listings hearing on 21 July 2017, being Mr Billing's first appearance in the District Court, a trial date of 29 January 2018 was set.
On 29 January 2018 Mr Billing failed to appear at his trial and a bench warrant for his arrest was issued and the trial vacated.
Mr Billing was arrested on 2 February 2018 and appeared before the District Court where his counsel was concerned about his mental health issues and the fitness to stand trial report was ordered by her Honour Judge Davis. Mr Billing was remanded in custody and has been in custody ever since.

A general observation

This case again graphically illustrates the difficulties the criminal justice system has in dealing with mentally ill offenders accused of committing serious sexual offences.
There is no doubt that Mr Billing suffers from schizophrenia. He is chronically unwell. He refuses to acknowledge that he has a mental illness and refuses to take any medication to treat the mental illness.
His mental illness is capable of being treated, however, he refuses to take the appropriate medication whether on bail or in custody. If he took his medication he would be fit to stand trial.
Whilst in custody he currently cannot be forced to take the medication.
Mr Billing is in custody awaiting his trial because he did not attend his original trial and a bench warrant was issued for his arrest.
Whilst in custody he has refused to take his medication, as a result of which his mental health deteriorated to such an extent that the prison authorities were satisfied that he met the criteria under s 25 of the Mental Health Act which sets in place the referral needed for an involuntary treatment order to be made. That is they were satisfied amongst other things that Mr Billing had a mental illness, needed treatment, was a significant risk to the health or safety of others, or at significant risk of serious harm to others or himself.
Consequently an involuntary treatment order was made and Mr Billing was transferred to the Frankland Centre (an authorised mental health facility) as an involuntary patient. Whilst an involuntary patient the Frankland Centre can force him to take the medication (ts 112). His condition improved to some extent and he was discharged by the Frankland Centre back to the prison.
If he was able to remain at the Frankland Centre for sufficient periods of time, his condition would improve to the extent that he would be fit to stand trial. However, he was sent back to the prison because there are only 30 beds available at the Frankland Centre. The Frankland Centre is under pressure for beds.
Dr Wynn Owen's evidence was that when the Frankland Centre was designed there were 30 beds for the treatment of mentally ill persons. Dr Wynn Owen said at that time the prison population was approximately 1,800 persons. Currently the prison population is approximately 7,500 persons and there has not been any increase in the number of beds available at the Frankland Centre to treat mentally ill offenders.
Insufficient beds means he is not able to be kept at the Frankland Centre.
Once sent back to prison Mr Billing refuses to take his medication and cannot be forced to take his medication. His condition eventually deteriorates again until it reaches the stages where the prison mental health staff determine he has again met the criteria for referral under the Mental Health Act for involuntary treatment and he goes back to the Frankland Centre for a period of time and the cycle repeats.
The court is then faced with the situation where it must release a man who refuses to take his medication and is clearly unwell, and who is at high risk of sexually offending, into the community or make a custody order. The court has no power for example to make a community treatment order.
If a custody order is made the Medical Review Board decide the place of custody. If the place of custody is prison he cannot be forced to take his medication and his condition deteriorates. If the place of custody is the Frankland Centre he can be forced to take his medication but there are only 30 beds available and only 10 of those beds are for the long-term type of care required in this case and already a number of those beds are taken by others found unfit to plead pursuant to the Act.
The legislation has been criticised as being deficient by virtue of the limited options of where the accused will be detained if a custody order is made: The State of Western Australia v Tax [2010] WASC 208 (Martin CJ); The State of Western Australia v Lowick [2016] WASC 339 (Fiannaca J); The State of Western Australia v Huggins [2017] WASC 243 (Hall J); The State of Western Australia v Truong [2017] WASC 289 (Hall J); The State of Western Australia v Stimpson [2019] WASC 279 (Hall J); and The State of Western Australia v Chokolich [2018] WASC 220 (Hall J); The State of Western Australia v S U [No 2] [2017] WADC 20 (Sleight CJDC); The State of Western Australia v B P [2019] WADC 63 (Lonsdale DCJ).

The issue before the court

A question remains over Mr Billing's fitness to stand trial and this hearing is to determine that issue.
As Chief Judge Sleight explained in The State of Western Australia v T‑S [2019] WADC 40, even if the expert psychiatrists agree that the accused is unfit to plead that in itself is not sufficient. The court's duty to the public, the complainant of serious sexual offending, and the accused, is to rigorously examine the evidence of the experts and reach its own conclusion.
Whilst a court should be cautious in drawing conclusions, contrary to the unanimous expert evidence, the court is entitled to reject the evidence if there is other evidence or circumstances which throw doubt on the expert evidence: TheState of Western Australia v T-S [17].

The evidence

At the direction hearing the court heard evidence from Dr Wynn Owen and a medical report from Dr Turnbull was tendered by consent. Both Dr Wynn Owen and Dr Turnbull are very experienced consultant psychiatrists. Dr Wynn Owen had seen Mr Billing on three occasions being 6 June 2018, 25 January 2019 and 18 July 2019. Dr Turnbull interviewed Mr Billing by video link on one occasion, being 1 November 2018.
The exhibits tendered were:
1.Dr Wynn Owen's report dated 10 June 2018 (exhibit 1).
2.Addendum to that report dated 29 August 2018 (exhibit 2).
3.Dr Turnbull's report dated 2 November 2018 (exhibit 3).
4.Dr Wynn Owen's report dated 29 January 2019 (exhibit 4).
5.Dr Wynn Owen's report dated 30 July 2019 (exhibit 5).
6.The prosecution brief.
I have also read the reports of Dr Melville-Smith dated 29 August 2016 and Dr Pyszora's dated 31 August 2016 which were on the court file.
Dr Wynn Owen's report of 10 June 2018 stated that Mr Billing suffered with schizophrenia, was in acute relapse and was being treated with the injectable antipsychotic Paliperidone. Dr Wynn Owen noted that Mr Billing lacked insight and his judgment was impaired. He noted there was a theme of sexual deprivation to his delusional thinking which may be associated with delusional sexual entitlement and limited ability to manage his sexual urges.
At that time Dr Wynn Owen considered that Mr Billing was not fit to stand trial but was likely to become fit with further effective treatment.
Dr Wynn Owen's further report of 29 August 2018 confirmed the diagnosis of schizophrenia but recommended a combination of psycho‑education, support of psycho-therapy and appropriate antipsychotic medications. He noted that Mr Billing had previously responded well to that sort of treatment and that his condition should be reassessed after effective treatment.
Dr Turnbull's report of 2 November 2018 noted that Mr Billing had transitioned from the injectable Paliperidone treatment to antipsychotic oral medication, Clozapine. Dr Turnbull noted that Mr Billing said he intended to stop taking that medication against Dr Turnbull's advice. Dr Turnbull observed that Mr Billing's mental state had improved. Dr Turnbull said Mr Billing could properly defend his charge and was fit to plead, however he qualified that by saying that if Mr Billing ceased the use of Clozapine he would become unfit for trial. Dr Turnbull noted that someone with Mr Billing's level of recent psychosis is prone to marked variations in their mental state that can affect their fitness to stand trial.
Dr Wynn Owen's report of 29 January 2019 notes that Mr Billing had refused to take Clozapine since mid-December 2018 and as predicted by Dr Turnbull was now acutely unwell.
Dr Wynn Owen confirmed his diagnosis that Mr Billing had a mental illness, namely schizophrenia, paranoid type which was currently untreated. His evidence was that he made an independent diagnosis of Mr Billing's schizophrenia and confirmed the diagnosis that was made by other doctors previously. Dr Wynn Owen recommended that Mr Billing be restarted on Clozapine as soon as possible and was of the opinion that the best option for long-term stability was long‑term involuntary treatment.
Dr Wynn Owen noted that Mr Billing responded well to treatment and when treated has a demonstrated fitness and capacity to stand trial. However, Dr Wynn Owen noted that the prison environment was adverse and not conducive to recovery and was likely to prolong the relapse.
Dr Wynn Owen's evidence was that Mr Billing was, at the time of the alleged offences, almost certainly of unsound mind. His judgment was impaired by his mental illness and he held delusional beliefs about being sexually deprived, his sexual entitlements and sexual rights and had a sexual preoccupation that was not in contact with the real world.
Dr Wynn Owen said these delusions appeared to be a constant theme over time. His evidence was that these delusions are highly likely to have been present since the onset of the illness.
Dr Wynn Owen said Mr Billing was presently, and at the time of the alleged offending, acutely unwell and could significantly misinterpret verbal and non‑verbal interactions with others. Dr Wynn Owen said Mr Billing's acute illness was a significant contributor to the offences and he may not have offended if not unwell at the time.
Dr Wynn Owen said in evidence that Mr Billing's schizophrenia was long‑standing probably from when he was 22 and noted that Mr Billing had a long history of poor treatment adherence and appears never to have fully complied with the requirement to take his medication. He said Mr Billing lacked insight into his mental illness or the need for treatment.
Dr Wynn Owen said it is likely that if Mr Billing was allowed to make a decision to refuse treatment he would do so, and if he remained in prison he would continue to refuse medication and as he cannot be compelled to take medications in prison he is unlikely to become fit in those circumstances.
He noted that if Mr Billing became a voluntary patient it seemed almost inevitable that he would cease medication and this would increase the risk of reoffending.

The law

Unfitness to stand trial is determined pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act).
The Act provides that an accused is presumed to be mentally fit to stand trial until the contrary is found: s 10(1).
The question of whether an accused is not mentally fit to stand trial is to be decided by the balance of probabilities. A judge can inquire into that question and inform himself in any way he thinks fit: s 12(1).
Section 9 of the Act provides that a person is mentally unfit to stand trial if, because of mental impairment, he 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.
Mental impairment is defined under the Act to mean intellectual disability, mental illness, brain damage or senility: s 8.
Mental illness is defined to mean an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli: s 8.
As can be seen s 9 involves a two-fold test. Firstly, the court must determine whether there is any mental impairment.
Secondly, if there is a mental impairment does that result in Mr Billing being unable to meet any one of the criteria in s 9(a) ‑ s 9(g). If so, Mr Billing would be mentally unfit to stand trial.
If Mr Billing is found to be not mentally fit to stand trial he may be subject to a custody order even though he has not been convicted of any offence if the criteria in s 19(5) is satisfied: R v Robson [2001] WADC 133 or the indictment may be quashed and he may be released under s 19(4).
Ordinarily it is in the interest of an accused person to be brought to trial rather than to risk being incarcerated without trial pursuant to a custody order under s 19 of the Act: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [24] (Gleeson CJ); R v Gardiner (No 3) (2000) 24 SR (WA) 136; R v Gardiner (1999) 21 SR (WA) 316; R v Robson.
The first issue to address is whether Mr Billing suffers from a mental impairment.

Does Mr Billing suffer from a mental impairment?

Dr Wynn Owen diagnosed Mr Billing as suffering from schizophrenia when he first saw him on 6 July 2018, a diagnosis which was consistent with Mr Billing's past history.
Consistently on the other two occasions that Mr Billing has been seen by Dr Wynn Owen, he has diagnosed him as suffering from schizophrenia paranoid type, currently untreated with positive and negative features involving thought disorder, bizarre and persecutory delusions (being positive features of schizophrenia), with a history of significant social/interpersonal and occupational decline and motivation (negative features of schizophrenia).
The diagnosis by Dr Wynn Owen is entirely consistent with the history of Mr Billing.
Mr Billing's first psychiatric admission occurred when he was aged 25. He was admitted to Sir Charles Gairdner Hospital for approximately one month and diagnosed with a drug induced psychosis secondary to amphetamine usage.
He was subsequently admitted to the psychiatric unit of the Royal Adelaide Hospital five years later where he was diagnosed with schizophrenia of the paranoid type.
Subsequent to that diagnosis he has been an involuntary inpatient and community healthcare patient in Western Australia through Bentley Hospital and Armadale Hospital.
He has a history of non‑compliance with medications and lacks insight into the need for medication and care.
He has also been admitted to the State Forensic Mental Health Service (Frankland Centre) from prisons in 2017, 2018 and pursuant to a court order in 2019. During those admissions Mr Billing has voiced sexual delusions or beliefs, was found to have thought disorders, was observed talking and laughing to himself and was diagnosed as suffering from schizophrenia, paranoid type with treatment resistance.
I am satisfied on the balance of probabilities that Mr Billing does suffer from schizophrenia paranoid type and that this is a mental impairment within the meaning of the Act.

Does Mr Billing meet any one of the criteria set out in s 9(a) ‑ s 9(g) of the Act?

The mere existence of a mental impairment does not of itself prevent a person from being brought to trial: Eastman v The Queen [24] ‑ [27].
A person is only unfit for trial if the mental impairment results in one of the s 9 criteria.
As stated by Miller J in R v Dunne[2001] WASC 263 [10], the tests in s 9 are based upon the following passage in R v Presser [1958] VR 45, 48, where Smith J stated that the accused has to understand what he or she is charged with and:
… [H]e must … have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
The test is not to be applied as if Mr Billing will defend himself. The test takes into account that Mr Billing is being represented by competent counsel. It is the ability of an accused to properly defend the charge assisted by counsel which is the relevant question: Nagatayi v The Queen (1980) 147 CLR 1.
A person cannot escape trial simply by showing that he is of low intelligence. It is not necessary for an accused to have a complete understanding of the course of the trial or to understand the evidence presented by the prosecution in detail, nor does he have to understand the law and its application to the facts of the case: Nagatayi v The Queen; R v Dunne.
It is not necessary where the accused is represented by counsel that the accused alone must be able to mount a defence: Nagatayi.
The test is not a demanding one.
If an accused realises in general terms what it is to be put on trial and can make sense of the evidence against him, he can take a sufficient part in proceedings for the trial to proceed: R v T (2000) 109 A Crim R 559, 565; R v Lindley [2003] WADC 41.
The court is well experienced in dealing with witnesses who suffer disadvantages due to age, low intelligence or for other reasons are vulnerable and has processes in place to ensure that the inherent disadvantage suffered by intellectually impaired witnesses and accused is reduced: The State of Western Australia v T-S.

Those court processes includes guidelines to assist counsel with the questioning of such witnesses and breaks to ensure an accused does not become unacceptably overwhelmed. In addition the trial judge ultimately controls the questioning of such witnesses so that questions are simple and not confusing: The State of Western Australia v T-S.

Is Mr Billing unable to understand the nature of the charge pursuant to s 9(a) of the Act?

I accept the uncontradicted evidence of Dr Turnbull and Dr Wynn Owen that Mr Billing is able to understand the nature of the charge.

Is Mr Billing unable to understand the requirement to plead to the charge or the effect of a plea pursuant to s 9(b) of the Act?

I accept the uncontradicted evidence of Dr Turnbull and Dr Wynn Owen that Mr Billing understands the requirements to enter a plea and the effect and potential outcomes of that plea.

Is Mr Billing unable to understand the purpose of a trial pursuant to s 9(c) of the Act?

I accept the uncontradicted evidence of Dr Turnbull and Dr Wynn Owen that Mr Billing understands the purpose of a trial being to establish whether he is guilty or not of the offence.

Is Mr Billing unable to understand or exercise the right to challenge jurors pursuant to s 9(d) of the Act?

Dr Turnbull said that he explained the right to challenge jurors to the Mr Billing and he understood that right. Dr Turnbull said he believed Mr Billing could exercise that right with assistance.
Dr Wynn Owen reported that although the accused did not recall their previous discussions about the ability to challenge jury selection, when he explained those rights again including the right to challenge jurors who were known to hold grudges against him or have some other bias, Mr Billing dismissed that as being unnecessary saying he would just tell the truth. In his evidence Dr Wynn Owen said he had reservations about Mr Billing understanding his right to challenge jurors.
In view of my finding in respect of s 9(g) it is not necessary for me to reach a conclusion on this ground.

Is Mr Billing unable to follow the course of the trial pursuant to s 9(e) of the Act?

Dr Turnbull thought that the sedation might be an issue at times but overall Mr Billing could intellectually and psychologically follow the course of a trial.
Dr Wynn Owen thought that it was likely that Mr Billing's attention and concentration would be adversely affected by his mental illness and disturbed sleeping pattern as a result of his insomnia. Dr Wynn Owen thought these issues would negatively affect Mr Billing's attention, concentration and short‑term memory.
In Dr Wynn Owen's opinion this, coupled with thought disorder, would affect Mr Billing's ability to follow the course of a trial in detail although he was likely to follow the general process.
However, in Dr Wynn Owen's opinion notwithstanding that, with assistance and support from counsel, including frequent reminders of detailed content of evidence and testimony that has gone before, Mr Billing could follow the course of the trial.
The court process can accommodate these issues by taking breaks to ensure Mr Billing overcomes these issues.
I am satisfied that Mr Billing would be able to follow the course of the trial.

Is Mr Billing unable to understand the substantial effect of evidence presented by the prosecution in the trial pursuant to s 9(f) of the Act?

Dr Turnbull relied on statements made by Mr Billing such as 'she came asking for sex. I was of the understanding I had consent'. He said that this was evidence that Mr Billing was capable of understanding the substantial effect of evidence.
Dr Wynn Owen said that Mr Billing demonstrated some understanding of the substantial effect of evidence although stated that he should be believed because he was telling the truth.
It seems from the other statements made by Mr Billing as reported by Dr Wynn Owen in his reports that Mr Billing well and truly understands that the complainant is saying that he had sexual activity with her without her consent although he maintains that what she says is not true.
Mr Billing clearly understands that the allegation is that he sexually penetrated EMP without her consent.
I am satisfied that Mr Billing would be able to understand the substantial effect of evidence presented by the prosecution at the trial

Is Mr Billing unable to properly defend the charge pursuant to s 9(g) of the Act?

Dr Turnbull reported that Mr Billing could properly defend the charge although he stated that if he went off his medication he would soon become unfit again.
Dr Turnbull said that someone with the level of Mr Billing's recent psychosis was quite prone to marked variations in their mental state. Dr Turnbull could not rule out relapses and there might be an urgent need to have him reassessed.
As Dr Turnbull recognised, if Mr Billing does not take his medication he may well become unfit to stand trial. Dr Turnbull last saw Mr Billing on 1 November 2018.
Dr Wynn Owen who last saw Mr Billing on 18 June 2019 said that the delusions Mr Billing suffers from have constant sexual content and the underlying theme is Mr Billing's conclusion is that he has been deprived of sexual contact.
Dr Wynn Owen notes that Mr Billing's description of the victim's visits to his flat which led to the allegations suggest he was acutely unwell at the time and may have been acting on a delusional belief that his advances were wanted and warranted. He said Mr Billing was almost certainly of unsound mind at the time of the alleged offences and in such a state of mental impairment as to deprive him of his capacity to know what he was doing was wrong and therefore s 27 of the Criminal Code provide him with a defence. Dr Wynne Owen's evidence was that Mr Billing's complete lack of insight means that he would not contemplate a defence under s 27 of the Criminal Code and as such could not properly defend himself because of the mental illness.
It is well established law that to be fit to stand trial Mr Billing must have sufficient capacity to be able to decide what defence he will rely upon: R v Dunne; R v Presser.
Mr Billing without doubt suffers from a mental illness, schizophrenia and Dr Wynn Owen's evidence establishes he may have been acting on a delusional belief that his advances were wanted and warranted at the time the offences occurred. Prima facie he falls within s 27 of the Criminal Code in that as a result of unsoundness of mind he committed the offence in such a state of mental impairment that he was deprived of the capacity to know that what he did was wrong.
Mr Billing will not avail himself of this defence because he does not acknowledge that he has any mental illness and in those circumstances lacks the capacity to be able to decide what defence he will rely upon.
I am satisfied that Mr Billing is unable to properly defend himself because he does not have the capacity to be able to decide what defence he will rely upon.
Accordingly, I am satisfied he fulfils the s 9(g) criteria and I find that he is not mentally fit to stand trial.

The consequence of a finding that Mr Billing is not fit to stand trial

Once it is found that Mr Billing is not mentally fit to stand trial it is necessary to consider whether he may become fit within six months.

Is the court satisfied that Mr Billing will not become mentally fit to stand trial within six months?

Mr Billing has refused to take the oral antipsychotic medication Clozapine since December of 2018.
In Dr Wynn Owen's opinion the prison environment has contributed significantly to the deterioration of his mental state and he has a history of non-compliance with medications and has no insight into the need for ongoing medication and care.
He told Dr Wynn Owen that he did not wish to take the medication because he does not have a mental illness.
Dr Wynn Owen said that in his opinion if Mr Billing remains in prison he will continue to refuse medication and he cannot be compelled to take medications under the Mental Health Act, therefore he is unlikely to become fit for trial. Dr Wynn Owen also said that in his opinion due to Mr Billing's lack of insight into his condition and need for treatment he is not likely to take medication if he is in the community.
In those circumstances I am satisfied Mr Billing will not become mentally fit to stand trial within six months of today's date.

Custody order or release

As I am satisfied that Mr Billing will not become mentally fit within six months, the court must quash the indictment without deciding the guilt of Mr Billing and then either release him or make a custody order: s 19(1) and s 19(4) of the Act.
A custody order must not be made unless the alleged offence is punishable by imprisonment and the judge is satisfied that such an order is appropriate having regard to:
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
Within five working days of a custody order being made the Mentally Impaired Accused Review Board (the Review Board) established under the Act must review Mr Billing's case and determine the place where he is to be detained. Until that decision is made Mr Billing is to be detained either in an authorised hospital, a prison or detention centre: s 25.
Once a custody order is made, Mr Billing must be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Review Board. He is detained in one of those places until released by an order of the Governor: s 24(1).
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless he has a mental illness that is capable of being treated: s 24(2).
The only other option to a custody order is to order that Mr Billing be unconditionally released. A court is not empowered to make an order conditionally releasing Mr Billing with, for example, a condition that he reside at some particular location and be subject to specified treatment. This deficiency in the Act has been the subject of comment in other cases: The State of Western Australia v Chokolich (Hall J).
Each of the seven alleged offences is punishable by imprisonment as the maximum penalty is 14 years imprisonment for each offence.
A custody order cannot be made without consideration of the four s 19(5) factors.

Strength of the evidence

The prosecution brief contains a number of statements from EMP.
EMP says she suffers from major depression, generalised anxiety disorder, obsessive compulsive disorder, border personality disorder, bipolar spectrum disorder, cerebral palsy and details of medication she takes for those conditions.
At the time of the alleged offence she was 27 years of age and confined to a wheelchair. EMP says her friend, SW, told her the accused would be a nice person to have sex with.
On 20 March 2016 EMP says she was a voluntary patient in the psychiatric ward at Royal Perth Hospital. At about 10.30 am she and another patient, SW, left the hospital and visited Mr Billing at his unit. Although SW knew Mr Billing, EMP had not previously met him.
Upon arrival at Mr Billing's residence all three sat down and had a cigarette. SW left and said she would return in 15 minutes.
EMP says Mr Billing put his hand on her thigh and tried to kiss her. She says she said no and told him she was going to leave.
He then stood up, pulled his pants down and exposed his penis. EMP says she was still in the wheelchair and Mr Billing is alleged to have pulled her head down and put his penis into her mouth. She was unable to move from this position due to her physical condition. Mr Billing told her to suck his penis and she did so without consenting. Mr Billing forcibly pushed his penis down her throat causing her to cough and gasp for air (count 1: sexual penetration without consent by introducing his penis into her mouth).
EMP says Mr Billing then wheeled her to his bedroom despite her request to let her go. She said she was telling him to stop but he kept going. He then lifted her from her wheelchair, put her on the bed and removed her clothing in circumstances where she was physically unable to resist. She kept saying no as he was undressing her.
He then placed his penis into her mouth (count 2: sexual penetration without consent by introducing his penis into her mouth) and sucked on her breasts and then put his finger in her anus (count 3: sexual penetration without consent by penetrating her anus with his finger) and then into her vagina (count 4: sexual penetration without consent by penetrating her vagina with his finger). EMP says he then manoeuvred himself over her face and asked her to lick his anus which she refused to do. He then performed cunnilingus on her (count 5: sexual penetration without consent by engaging in cunnilingus) and penetrated her anus with his penis (count 6: sexual penetration without consent by penetrating her vagina with his penis). EMP says she told Mr Billing to stop but he continually thrust his penis in and out of her anus. Count 7 occurred when EMP says Mr Billing allegedly removed his penis from her anus, lifted her legs up so they were over her shoulders and penetrated her vagina with his penis. EMP says she told him to stop several times but he continued and asked to be let go. Eventually she was handed her clothing and he helped her back into the wheelchair and out of the unit. She asked him whether he liked raping women to which he replied 'I'm not raping you it is nice.'
EMP says she complained almost immediately to SW and was taken back to the hospital where she complained to nursing staff and was highly distressed.
SW was a patient at the Royal Perth Hospital psychiatric ward. In her statement she says she took EMP to the accused's unit where they smoked cones and then left EMP and the accused alone in the unit. When she returned EMP had left the unit and when she was located EMP said she had been raped.
SW says that before she went to the unit EMP had been asking her if she could find a 'moonya' which meant a man to have sex with her.
Ms Rogers is a nurse at the psychiatric ward. She says that mid‑morning on the day in question EMP asked her to call the police because she had been raped. Ms Rogers said EMP was crying hysterically and finding it difficult to breathe. EMP complained that the accused had made her perform oral sex on him, licked her down there and had sex with her.
Ms Jones is a nurse employed with the Royal Perth Hospital who says that around about 11.20 am on that day EMP was screaming at the hospital that she had been raped. She described EMP as being hysterical and crying uncontrollably. Ms Jones confirms the complaint and the details of the complaint in similar terms to Ms Rogers' statement.
Constables Rockey and Langham attended Royal Perth Hospital and EMP repeated her complaint about Mr Billing's conduct.
Detective Marsh and Detective Sergeant Glynn attended Royal Perth Hospital taking various forensic samples. Later on they spoke to Mr Billing and arrested him for suspicion of sexual penetration and conducted an electronic record of interview. They later searched his unit and seized security footage from the hospital.
During the record of the interview Mr Billing admitted that some of the acts of sexual penetration alleged by EMP occurred but that all acts were consensual. I note that Dr Wynn Owen's evidence was that Mr Billing was suffering from mental impairment at the time of that interview as evidenced by his language changes, thought disorders and delusions of sexual entitlement and belief that he was missing out on sexual contact.
Dr Sluchniak examined EMP on the date of the alleged incident approximately seven hours after it occurred.
She confirms EMP has spastic diplegia which is a form of cerebral palsy which effects the functions of the lower limbs and is reliant on a wheelchair for mobility and is unable to walk independently.
The doctor notes that the general body examination was challenging to perform due to EMP's physical disability but she noted no new injuries on her general examination.
Dr Sluchniak conducted a genito-anal examination which was challenging to perform due to EMP's physical disability. She noted a 0.5 cm long superficial laceration at the posterior fourchette (the junction where the inner vaginal lips meet posteriorly, at the vaginal entrance). She concluded that it was not possible to determine if the laceration was caused by a penis, fingers or object but it was a result of vaginal penetration either with or without consent.
On an internal vaginal examination she noted no injuries and on an external anal examination noted no injuries.
Dr Sluchniak said EMP's lack of anal or general injuries was neutral in determining whether sexual penetration had actually occurred. Effectively she says this neither refutes nor supports a finding of anal penetration. The medical evidence in this regard is intractably neutral.
Ms Murakami is a forensic scientist who analysed various samples provided to her from both EMP and the accused.
On EMP's underwear a fluorescent stain on the inner leg was identified of having a mixed DNA profile which matched EMPs and the evidence supported that Mr Billing was a contributor to that profile. EMP is an assumed contributor. It was more than 100 billion times more likely that EMP and Mr Billing are contributors to this mixed DNA profile than an unknown individual randomly chosen from the Australian population.
A high vaginal swab from EMP recovered a Y chromosome. That DNA profile recovered matched the Y chromosome DNA profile of Mr Billing. Mr Billing therefore could not be excluded as a donor of the male DNA from the swab and all male relatives descendant from his paternal line could not be excluded as the donor. Whilst Mr Billing cannot be excluded as a possible donor of the male DNA from the swab, that haplotype is found in one in every 4,517 individuals and applying a 95% upper confidence interval results in the haplotype frequency equivalent to approximately one in 1,526 individuals.
On the inner crotch of the pants identified as Mr Bilings a mixed DNA profile matching Mr Billing was located and evidence supported that EMP was a contributor to that DNA mix. It was more than 3.6 billion times more likely that the DNA from Mr Billing and EMP contributed to the mixed DNA profile found than an unknown individual randomly chosen from the Australian population.
Ms Akis, a nurse from Royal Perth Hospital, Detective Guerriero, Detective Marsh and Detective Sargent Glynn's additional statements relates to the continuity of exhibits.
Mr Burnaby, Ms Dakes and Ms Lake are attached to the police exhibits management unit and their statements establish the continuity of exhibits.
The available evidence establishes a moderately strong case that Mr Billing committed the offences as alleged. At the time of the alleged offences Mr Billing and the complainant were alone. EMP says the event occurred. She made recent complaint. Mr Billing in his interview with the police has admitted that some sexual acts occurred but says not all of the alleged sexual acts occurred and those that did occur were by consent.
It is not an overwhelming case against Mr Billing. It is a case of oath against oath. The DNA and medical evidence do not assist on the question of consent. Clearly if EMP's evidence was accepted beyond reasonable doubt Mr Billing would be convicted of this offence.

The nature and circumstance of the alleged offence

Mr Billing is charged with seven serious sexual offences. These offences occurred in circumstances where he was alone with EMP who had visited him in his unit.

Mr Billing character, antecedents, age, health and mental condition

Mr Billing is currently 37 years of age, born in Western Australia and appears to have had a normal and happy childhood.

He attended both primary and high school in Kalgoorlie. Upon leaving school he completed a plumbing apprenticeship and worked for his uncle for a number of years before leaving that job because he says it got too awful and he became depressed.
It appears he travelled around Australia for around about three years and for the past five or so years has been unemployed and in receipt of disability support pension.
He is not married and has no children. It appears that he has limited contact with family members.
He has a long-standing mental illness and significantly refuses to take medication because he does not acknowledge that he has a mental illness. His general physical health seems unremarkable.
Mr Billing has a prior criminal record. He has a number of minor traffic convictions on his record that are of little significance. In addition he has five convictions for driving contrary to an extraordinary driver's licence, three convictions for driving whilst disentitled, two convictions for possession of cannabis, a conviction for possession of a smoking implement, two convictions for driving with alcohol in excess of the prescribed limits, a conviction for failing to give details to police officers when required, a conviction for obstructing a police officer and a conviction for threats to injure, endanger or harm.
He does not have convictions for sexual offences.

The public interest

The degree of risk of reoffending is not the only consideration when considering the public interest, however it is an important consideration: The State of Western Australia v S U (Chief Judge Sleight).
As to the risk of reoffending, a number of factors need to be considered.
Dr Wynne Owen noted that it is significant that Mr Billing was untreated and probably acutely unwell at the time of the offences and that his psychosis includes a number of sexual themes. As a result of this, his risk of reoffending sexually would be greatest when unwell and that risk might be further escalated if psychologically unwell and using drugs. Conversely his risk of reoffending can be reduced by effective treatment of his mental illness.
Dr Peter Wynn Owen applied the static 99R test. He acknowledged that it is moderately accurate.
Dr Wynn Owen noted that as Mr Billing has a chronic mental illness and no insight into that illness and refuses treatment he would be regarded as being high risk/high need individual at a risk of reoffending in the order of 14% as opposed to the approximately 1% risk of 'out of the blue' sexual offence being committed by a male in the general population.
Dr Wynn Owen noted that untreated mental illness and substance abuse are the notable dynamic factors for further sexual offending and in addition, problems with self-awareness and problems with intimate and non-intimate relationships are present. Mental illness and drug use are also significant risk factors for future generalist offending.
The static 99R test is only moderately accurate and caution must be used in relying on any actuarial assessments of risk which at best can provide a very generalised guide. However Dr Wynn Owen's evidence was categorically that if Mr Billing's mental illness is untreated he is at a high risk of sexually reoffending.
Mr Billing has a mental illness of long‑standing. Whilst in the community he is reluctant to take medication, whilst he in custody he will not voluntarily take medication, he has little insight into his illness and has a high risk of sexual reoffending if untreated.
The very nature of bizarre delusional beliefs and grandiose delusions about his sexuality and his sexual rights have been noted by Dr Wynn Owen to be a constant theme over the time and the fact that when acutely unwell he can significantly misinterpret verbal and non‑verbal inter-reactions with others means that in my opinion whilst untreated he does remain an unacceptable risk to the community.
It is also in the public interest that people with mental illness are provided with the best possible treatment and care and with the least restrictions of their freedom and the least interference with their rights and dignity: The State of Western Australia v S U (Chief Judge Sleight). Dr Wynn Owen's evidence was that a prison environment is detrimental to Mr Billing's condition.
I am satisfied that a custody order is appropriate. Mr Billing has demonstrated that in custody or in the community he will not take his medication and untreated he remains at high risk of sexually reoffending. Having considered the competing factors individually and cumulatively, I am satisfied that a custody order is appropriate.
The orders I make are:
1.Indictment 653 of 2017 is quashed.
2.A custody order under the Criminal Law (Mentally Impaired Accused) Act 1996 is made in respect of Luke Charles Billing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
15 AUGUST 2019