The State of Western Australia v Brand
[2018] WADC 46
•6 APRIL 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BRAND [2018] WADC 46
CORAM: GLANCY DCJ
HEARD: 27 MARCH 2018
DELIVERED : 6 APRIL 2018
FILE NO/S: IND 1182 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
BRADLEY LEONO ARTHUR BRAND
Catchwords:
Criminal law and procedure - Mentally impaired accused - Not fit to stand trial - Whether accused will become mentally fit to stand trial within 6 months - Turns on own facts
Legislation:
Criminal Code (WA), s 324(1), s 324(3), s 338B(b), s 401(2)(a)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 8, s 9, s 12, s 18, s 19
Result:
Charges in indictment quashed
Custody order made
Representation:
Counsel:
| The State of Western Australia | : | Mr B Tooker |
| Accused | : | Mr M Cuomo |
Solicitors:
| The State of Western Australia | : | Director of Public Prosecutions |
| Accused | : | Legal Aid |
Case(s) referred to in decision(s):
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
R v Pritchard (1836) 7 C & P 303; (1836) 173 ER 135
The State of Western Australia v Cipriano [2015] WADC 150
The State of Western Australia v Tax [2010] WASCA 208
The State of Western Australia v Tekle [No 2] [2017] WASC 351
JUDGE GLANCY:
Introduction
These are proceedings under s 12 of the Criminal Law (Mentally Impaired Accused) Act1996 (WA) (CL (MIA) Act) to decide if the accused, Bradley Leono Arthur Brand, is fit to stand trial in this court on three charges arising from an incident which allegedly took place on 27 September 2016.
Mr Brand was due to stand trial in the District Court on 26 February 2018 but that trial date was vacated at the request of his counsel who sought to have the question of his fitness to stand trial determined.
There are three issues which arise for my consideration under the CL (MIA) Act. First, is Mr Brand presently unfit to stand trial? Second, if so, will this unfitness change in the next six months? Third, if he will remain unfit after six months, in addition to quashing the indictment should the court make an order releasing Mr Brand or make a custody order?
Indictment
Mr Brand was charged on indictment dated 17 September 2017 that he:
1.On 27 September 2016 at Bicton, while in the place of Mark Sutherland without his consent, committed the offence of stealing;
And that he did so while armed with an offensive instrument, namely a syringe;
And that immediately before the commission of the offence he knew or ought to have known that there was another person in the place;
And that the place was ordinarily used for human habitation.
2.On the same date and same place as in count 1, unlawfully and indecently assaulted Barbara Joan Sutherland, by grabbing her arm;
And that he was armed with an offensive instrument, namely a syringe;
And that Barbara Joan Sutherland was of or over the age of 60 years;
And that he committed the offence in the course of an aggravated home burglary.
3.On the same date and at the same place as count 1, made a threat to unlawfully harm Barbara Joan Sutherland.
Alleged facts
Mrs Sutherland, the victim, is a 77‑year‑old woman who had been helping her grandson Mark Sutherland perform an exit clean on the property he then occupied at Bicton. It is alleged that, at approximately 3.00 pm, while her grandson was temporarily absent from the property the accused entered the property through the unlocked front door without consent. He approached Mrs Sutherland from behind and wrapped his arms around her. When she turned around and discovered that the person in the house was not her grandson she asked him what he was doing and he replied 'I want you to strip'. When Mrs Sutherland refused to strip it is alleged Mr Brand produced a syringe from his pocket and told Mrs Sutherland he was going 'to give it to her'. Mrs Sutherland tried to get away from the accused but he grabbed her by the arm and tried to move her into the bedroom. It is alleged that after a struggle, Mrs Sutherland managed to move towards the front door and when she opened the door the accused pushed her into a wall and fled. It is said that when Mr Brand left the property he took with him the victim's handbag which contained her car keys, mobile phone, bank cards, $40 cash, her wallet, reading glasses and driver's licence.
The facts were not contested by Mr Brand's counsel.
Fitness to stand trial
At common law an accused person cannot stand trial unless he or she is fit to stand trial to the charges laid against him or her.
In essence, the question to be decided was 'whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge.[1]
[1] R v Pritchard (1836) 7 C & P 303, 304; (1836) 173 ER 135, 135 (Alderson B), and also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [57] (Gaudron J), and the discussion of the position in The State of Western Australia v Tekle [No 2] [2017] WASC 351 [48] – [50] (Fiannaca J)
The issue of how the question of a person's mental fitness to stand trial is to be resolved and what is to occur when a person is found mentally unfit to stand trial is now dealt with in this state under the CL (MIA) Act.
Criminal Law (Mentally Impaired Accused) Act 1996
The test of whether a person is mentally unfit to stand trial is set out in s 9 of the CL (MIA) Act. That section provides:
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.
A mental impairment is defined in s 8 of the CL (MIA) Act as being 'an intellectual disability, mental illness, brain damage or senility'. 'Mental illness' is defined as '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 external stimuli'.
Section 10 provides that a person is presumed mentally fit to stand trial until the contrary is found under pt 3 of the CL (MIA) Act. Section 12(1) of the CL (MIA) Act provides that the question of whether the accused is mentally fit to stand trial is to be decided on the balance of probabilities after the court enquires into the question and informs itself in any way which it thinks fit.
Section 18 of the CL (MIA) Act states that the procedure which is to apply if an accused before the Supreme Court or the District Court is found to be not mentally fit to stand trial is that provided in div 3 of pt 3 of the CL (MIA) Act. Division 3 contains s 18 and s 19.
Section 19(1) provides that if a judge who decides that an accused is unfit to stand trial:
(a)is satisfied that the accused will not become mentally fit within six months after that finding, 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.
Section 19(2) provides that an adjournment under s 19(1)(b) may be for any period or periods as the judge thinks fit, but must not exceed six months in total.
Section 19(3) provides that the judge must make an order under s 19(4) -
(a)if at any time the judge is satisfied that the accused will not become mentally fit to stand trial within six months after the finding that the accused is not mentally fit; or
(b)if at the end of six months after the finding that the accused is not mentally fit to stand trial the accused has not become mentally fit.
Section 19(4) provides that an order under that 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.
Section 19(5) provides that a custody order may 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;
(b)the nature of the alleged offence and the alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
Materials filed in the proceedings to determine Mr Brand's fitness to stand trial
I have before me two psychiatric reports which were filed in these proceedings by Mr Brand's counsel which address Mr Brand's fitness to stand trial. They are:
1.Report of Dr Victoria Pascu, consultant Forensic Psychiatrist, dated 21 February 2017 (Pascu Report); and
2.Report of Dr Siva Bala, Associate Professor of Psychiatry, dated 13 February 2018 (Bala Report).
I have also been provided with an affidavit of Mr Mark Cuomo, the accused's counsel dated 15 February 2018. In that affidavit Mr Cuomo explains how he came to be concerned about Mr Brand's mental condition and capacity to give instructions and the steps he took to have Mr Brand assessed by psychiatrists.
The State did not file any report of its own although counsel for the State did examine Dr Bala at some length in relation to aspects of the Bala Report at the hearing on 27 March 2018.
Dr Pascu's report
Dr Pascu's report is now some 12 months old. Her report indicates that on 24 January 2017 she interviewed Mr Brand in person for approximately 90 minutes for the purposes of providing her report (Pascu report page 2). In order to prepare her report she also had access to the Statement of Material Facts relating to the alleged offences, Mr Brand's criminal record, collateral information from the mental health staff at Hakea Prison where Mr Brand was detained at the time of her assessment of him and information from Mr Brand's medical file from the Frankland Centre, State Forensic Mental Health Service which contained information from Country Mental Health Services (Pascu Report page 2).
Dr Pascu's opinion was that, at the time she assessed him, Mr Brand was not fit to stand trial because he would not be capable of doing any of the things set out in s 9(a) – s 9(g) of the CL (MIA) Act (Pascu Report par 38). She expressed the view that Mr Brand ought to be reviewed in a further three months in order to determine whether there had been a change in his condition (Pascu Report par 47).
Essentially Dr Pascu's clinical diagnosis (Pascu Report par 35) is that Mr Brand suffers from:
(i)chronic paranoid Schizophrenia (which she says was then in partial remission because of the treatment he had received following being taken into custody in relation to these offences), with ongoing psychotic symptoms and thought disorder;
(ii)mental and behavioural disorder due to multiple substance abuse and dependence, mainly alcohol, cannabis and methylamphetamine; and
(iii)epilepsy, which she noted may be the result of a historic head injury.
Regrettably, Dr Pascu has been unable to review Mr Brand again, and her report therefore says nothing about Mr Brand's current medical condition or his capacity to undertake any of the tasks set out in s 9(a) – s 9(g) of the CL (MIA) Act.
Dr Bala's Report and oral evidence
Dr Bala's report is dated 13 February 2018. In writing his report he had access to Mr Brand's prison medical records, Dr Pascu's Report, Mr Brand's criminal record, medical information from Graylands Hospital and the Statement of Material Facts (Bala Report par 4). Dr Bala's practice is based in Cairns. In order to form an opinion about Mr Brand's medical condition Dr Bala interviewed and assessed Mr Brand on 8 February 2018 via videoconference which lasted some 90 minutes (Bala Report par 4). It is regrettable that it was not possible for Mr Brand to be reviewed in person by any psychiatrist for the purposes of this hearing particularly given the possible consequences for Mr Brand of the making of a custody order under s 19(4) of the CL (MIA) Act. Nevertheless, Dr Bala states that he has conducted close to 1,000 video-link assessments for clinical, medico-legal and forensic purposes throughout Australia since 2007 and did not regard the use of that process as in any way limiting his ability to form a professional opinion in Mr Brand's case.
At par 15 of the Bala Report, Dr Bala states:
Mr Brand is highly symptomatic and experiences auditory and visual hallucinations, thought broadcast (people can read his mind), delusions of self-reference and persecution (being watched and followed, people on TV talking about him) and occasional suicidal ideation.
At par 37 of the Bala Report, Dr Bala said:
(a)As per my previous report and other psychiatric opinions, Mr Brand has a diagnosis of severe and treatment resistant schizophrenia, marked by disorganisation of thought and cognitive difficulties. He denies hallucinations and delusions and is a chronically impaired individual; with functional decline, being reliant on others to assist him. In the community Mr Brand has a long-standing tendency to use alcohol, cannabis, amphetamines and inhales solvents based on ability. Despite high dose antipsychotic medication treatment, he has only partially responded to treatment and continues to be symptomatic.
(b)Mr Brand also appears to have significant cognitive problems, likely due to a combination of the chronic schizophrenia, severe substance abuse, possible head injury and solvent use in childhood. He also had a deprived upbringing marked by a lack of stable attachment figure, modelling for substance abuse in the extended family and early depravation from expected developmental goals such a completing schooling, stable work and relationship history, He lives a nomadic life centred around using substances and has exhausted support and family members. He had been homeless preceding the alleged offending and the current period of incarceration. He presents as literal, concrete, with poor insight, judgment and limited ability to learn from experience. It is clear that sanctions have failed to deter him and his cognitive abilities such as long and short term memory appear to be somewhat impaired, although I was unable to formally test them.
Dr Bala went on to say that it was his opinion that Mr Brand was unable to do anything set out in s 19(a) – s 19(g) of the CL (MIA) Act and was then mentally unfit to stand trial. At par 38 of his report Dr Bala gave examples of Mr Brand's responses to his questions about what aspects of the charges meant and what aspects of the legal process involved in order to illustrate his disordered thought and lack of understanding of the charges, the legal process and his lack of capacity to follow the trial, challenge jurors and assist in his defence.
He summarised these findings at par 39 where he stated:
In summary, Mr Brand is a grossly impaired individual with significant deficits in cognitive function and severe, ongoing psychotic illness. He has been abstinent of substances in custody and in spite of high dose antipsychotic medications over an extended period of time, continues to be psychotic with hallucinations and thought disorder. Given the longstanding nature of his illness and neurocognitive effects of chronic substance use including solvents and possible head injury, he is unlikely ever to improve meaningfully to become fit to plead.
Is Mr Brand currently mentally fit to stand trial?
The two expert psychiatrists agree that Mr Brand suffers from a mental illness. Dr Pascu's report is of little assistance in determining Mr Brand's current medical condition and his current fitness to stand trial as it was written over a year ago and was concerned with his medical history and his medical condition at the time he was assessed. Dr Bala, having only recently reviewed Mr Brand, is the only expert who expressed an opinion as to his current capacity and was of the opinion that Mr Brand is currently unfit to stand trial because he is unable to:
(a)understand the nature of the charge; or
(b)understand the requirement to plead to the charge or the effect of a plea; or
(c)understand the purpose of a trial; or
(d)understand or exercise the right to challenge jurors; or
(e)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)properly defend the charge.
The State conceded that Mr Brand is presently not mentally fit to stand trial within the meaning of the CL (MIA) Act. That concession is appropriate given the psychiatric evidence before the court.
On the basis of the evidence before the court, I conclude that Mr Brand is, because of his mental impairment, presently mentally unfit to stand trial.
Will Mr Brand become mentally fit to stand trial within six months?
Having determined that Mr Brand is not presently mentally fit to stand trial I must now consider the question of whether I am satisfied that he may become mentally fit within the next six months.
Both Dr Pascu and Dr Bala detail Mr Brand's long history of chronic schizophrenia which is complicated by polysubstance abuse and intermittent drug related psychotic relapses on the background of underlying antisocial personality disorder.
When he interviewed Mr Brand in February 2018, Dr Bala found him to be highly symptomatic notwithstanding he has been receiving high doses of antipsychotic medication since September 2016 (some 18 months) while in custody awaiting trial for these offences. At par 39 of the Bala Report he expressed his view of the prospect of Mr Brand recovering sufficiently such that he would be able to stand trial as follows:
Given the longstanding nature of his illness and neurocognitive effects of chronic substance abuse including solvents and possible head injury, he is unlikely ever to improve meaningfully to become fit to plead.
Dr Bala was questioned at some length by the State regarding his opinion of Mr Brand's prospects of recovery because Dr Bala had expressed the view that Mr Brand may benefit from a trial of Clozapine (Bala Report par 40(b)) because his hallucinations and delusions may respond to that medication. Dr Bala gave evidence that Clozapine was an antipsychotic drug which could be used effectively as a treatment of last resort for treatment resistant schizophrenia. Dr Bala's evidence was that Clozapine is used as a last resort because of its serious and long lasting side-effects and because it is required to be administered, at least initially, in a hospital setting, because patients need to be monitored very carefully for side effects (ts 25).
Dr Bala's evidence was that although Clozapine may improve Mr Brand's condition, changes in one's mental condition when taking Clozapine are not generally seen until between 12 and 24 months after the treatment is commenced. When asked if Clozapine could resolve Mr Brand's mental health issues within six months of starting on Clozapine, Dr Brand's response was (ts 28):
[I] mentioned it was unlikely because it is unlikely but I have also seen very occasional instances of Clozapine making people who likely never will become fit, become fit again…It is a reasonable chance he will improve from a – in terms of mental state. Whether he improves to the extent he is fit I don't – I can't say at this stage…I'm sorry I can't be more conclusive than that.
Dr Bala went on to state that it will be difficult for Mr Brand to be trialled on Clozapine because although he is highly symptomatic, his behaviour is not disruptive and the beds at the Frankland Centre, to which he would have to be admitted in order for the Clozapine to be administered, are in extremely short supply and usually go to patients who are displaying disruptive behaviour, and Mr Brand is therefore 'probably a lower priority' (ts 25).
Following Dr Bala's evidence in relation to the prospects of Mr Brand responding to Clozapine within six months, the State conceded that it was 'probably unlikely' that Mr Brand would become fit within six months (ts 38).
In light of the expert evidence I am satisfied, on the balance of probabilities, that Mr Brand is not likely to become fit to stand trial in the next six months.
Release or custody order?
Having come to that view, the next issue to consider is whether an order releasing the accused or a custody order is appropriate.
Section 19(5) of the CL (MIA) Act sets out the criteria that must be satisfied before a custody order can be made.
Before turning to look at those criteria it should be noted that Mr Brand's counsel submitted that Mr Brand, having been in custody since his arrest and charge in relation to these matters is anxious to be released and opposes the making of a custody order. The State submitted that in the circumstances it was appropriate that I make a custody order.
(a) Strength of the evidence against the accused
The State pointed to the following matters which, it said, meant that there is a strong case against Mr Brand (ts 40 ‑ 43 and MFI 1):
1.the description of the offender given by the victim matched the offender (although no photo board identification was able to be made by the complainant);
2.the accused was found in clothing that matched the complainant's description of her attacker. In this regard it was particularly noteworthy that the complainant described the offender as having worn a distinctive long-sleeved coat with orange, yellow, green and red vertical stripes and when Mr Brand was arrested he was wearing a distinctive long‑sleeved coat with black, yellow, green and red stripes;
3.Mr Brand was arrested in Fremantle, a suburb close to where the offences occurred in Hilton, not long after the offences were said to have taken place;
4.when arrested, Mr Brand was as found in possession of the complainant's mobile phone and car keys (which had been taken by the offender);
5.when arrested, Mr Brand was also found to be in possession of an unopened syringe (the complainant said that she was threatened with a syringe during the offending);
6.DNA found on the complainant's hand is said to be '79 billion in favour of the hypothesis that [Mr Brand] is a contributor' (ts 43) (although the State acknowledged that the DNA found on the complainant's jumper was a weaker result) (ts 43);
7.a video clip taken on the complainant's mobile phone approximately 19 minutes after it was stolen depicts Mr Brand's face inside a train; and
8.the complainant's statement to police is that she was told to strip and that the offender tried to drag her into the bedroom of the home.
Mr Brand's counsel conceded that the case against Mr Brand is strong (ts 12).
The nature of the alleged offence and the alleged circumstances of their commission
The details of the three alleged offences with which Mr Brand has been indicted are set out earlier in this decision. The first is aggravated burglary with the grounding offence being stealing. The maximum penalty for that offence is 20 years' imprisonment (s 401(2)(a) of the Criminal Code). The second is the aggravated indecent assault committed in the course of the aggravated home burglary. The maximum penalty for that offence is 7 years (s 324(1)) and by virtue of s 324(3) of the Criminal Code. If convicted of the second offence, the accused would have to serve 75% of the maximum term (ie 5 years and 7 months). Count 3 is the threat to harm, for which the maximum penalty is 3 years' imprisonment (s 338B(b) of the Criminal Code).
It is clear from the penalties prescribed that the Parliament of Western Australia, which represents the views of the community, regards each of these offences as serious.
As to the circumstances of the offences, if Mr Brand did commit them, they were committed within six weeks of his release from custody and at a time when, according to Dr Bala's evidence, the long acting medication with which he had been treated while in custody would still have been in his system (ts 17 pars 3 and 4). The victim Mrs Sutherland, was an elderly woman (77 years old) who was in the home alone at the time of the offences. She was threatened by a stranger who seemed to have an intention to commit a sexual offence against her and who became aggressive and threatened her with a syringe when she did not comply with his request that she strip. This would have been a very frightening experience for Mrs Sutherland.
In some respects however, the circumstances of the offending displays aspects of the accused's disordered thought. He did nothing to conceal his identity instead wearing what is said to be highly distinctive clothing in which he remained after the offences were committed and the offensive weapon used to threaten the victim was a syringe which was, however, still in its packaging. Further, after stealing the mobile phone, the accused made a video of himself on it.
The accused's character, antecedents, age, health and mental condition
Mr Brand is a 40‑year‑old Aboriginal man who was born in Port Hedland. He has two adult daughters with whom he has no contact (Pascu Report par 30). He left school at 14 years of age. Since leaving school he has been intermittently employed in various labouring jobs but was placed on the disability support pension in 2014 owing to his mental illness (Pascu Report pars 28 ‑ 29).
Dr Pascu, Dr Bala and Mr Brand's counsel have indicated that when in the community Mr Brand has little in the way of social supports. Dr Pascu reports that Mr Brand informed her that both of his parents are deceased (Pascu Report pars 26 ‑ 27). It seems Mr Brand has a sister with whom he may stay from time to time.
Mr Brand has a history of chronic schizophrenia which has been resistant to treatment. Dr Bala stated in evidence that that severe illness was built on a foundation of probable cognitive impairment from solvent abuse when he was younger and then chronic substance abuse. He says there is a degree of cognitive impairment that probably will not improve regardless of his treatment (ts 29).
Mr Brand has a long history of substance abuse involving alcohol, cannabis, amphetamines and solvents (Pascu Report pars 20 ‑ 22). He denies that he has a problem with substance abuse (ts 16).
Mr Brand suffers from epilepsy which may have been caused by a head injury (Bala report par 17).
Mr Brand has a significant criminal record. The first convictions are recorded when he was 24 years old.
Mr Brand has been convicted twice previously of home burglary. The first, on 22 December 2011 and the second, on 24 February 2012.
Mr Brand was first sentenced in the District Court in relation to the second of the home burglaries. He received 18 months' imprisonment for the offence, at which time he was also sentenced to 9 months (cumulative) for an offence of stealing a motor vehicle. When he was later sentenced in the Magistrates Court for the home burglary which occurred first in time, he received a sentence of 3 months' imprisonment to be served cumulatively upon the sentences he was then serving (ts 44 – 45 and MFI 3).
Mr Brand was convicted in June 2007 of detaining another with intent to gain a benefit and was sentenced to 4 years' imprisonment. The circumstances of that offending were that Mr Brand answered a car for sale advertisement, went to the seller's home and then went with the owner, purportedly to test drive the vehicle. During that test drive he threatened the victim and forced him to drive towards Northam. The victim drove the car into a tree in order to escape (ts 46 – 47 and MFI 3).
In 2006, Mr Brand was convicted of a burglary of a sobering up shelter in Meekatharra for which he received a $400 fine. The statement of material facts in relation to that offence indicate that earlier in the evening, prior to breaking in to the shelter Mr Brand had attended at the police station and asked to be taken to the shelter but that the police had informed him it was closed (ts 47 and MFI 3).
There are other convictions dating from 2000, including assaulting a public officer in 2004 for which Mr Brand was sentenced to 13 months' imprisonment (ts 47).
Public interests
A major public interest consideration is the need to reduce the risk to the community that Mr Brand will commit further offences.
However, another important public interest consideration was identified by his Honour the Chief Judge in TheState ofWestern Australia v Cipriano [2015] WADC 150 [38]. That which his Honour identified is the public interest in ensuring that people living with mental illness 'are provided with the best possible treatment and care; and with the least restriction of their freedom and least interference with their rights and dignity'.
As his Honour then went on to consider at some length, the CL (MIA) Act presents the court with only two stark choices when dealing with a person who the court is satisfied, on the balance of probabilities, is mentally unfit to stand trial and will not become mentally fit to stand trial within six months. The first is release into the community. The second is an order that the person be detained in custody under the provisions of the CL (MIA) Act. There is no provision for the court to make a conditional release order providing for supervision in the community. This lack of some middle ground, where these two competing public interests could be balanced has been criticised as a deficiency in the legislation: The State of Western Australia v Cipriano [39]; The State of Western Australia v Tax [2010] WASCA 208 [18] (Martin CJ).
Dr Bala expressed the view that in order to be treated successfully in the community and reduce his risk of re-offending Mr Brand would require:
(i)an insight into the link between his illness and his offending;
(ii)a commitment to take his medication;
(iii)assertive follow up by a mental health team;
(iv)a commitment to abstain from alcohol and substance abuse; and
(v)stable accommodation.
Dr Bala gave evidence that he has gained a very clear picture of Mr Brand's potential future from the circumstances which occurred following Mr Brand's most recent release from custody (ts 29). That is, within six weeks of release Mr Brand was without stable accommodation, had failed to attend appointments with those caring for his mental health in the community, had failed to continue to take his medication, had returned to using substances and had allegedly reoffended. At par 39 of the Bala Report, Dr Bala put it this way:
Regarding the offences, given the history of Mr Brand's chronic psychotic disorder which was most likely untreated at the time of the alleged offences, it appears that his mental state gradually deteriorated without the medications, with re-emergence and worsening of the psychotic symptoms and likely impaired judgment leading up to the offences in September 2016. This was further compounded by his polysubstance abuse and likely intoxication at the time.
I am of the view that, given his history, Mr Brand will be unlikely to comply with a treatment regime within the community if he is simply released from custody. His lack of insight into the link between his condition and his offending means that his condition is likely to worsen if he is released without some supports which will ensure he receives treatment. If past behaviour is the best predictor of Mr Brand's future behaviour, it seems almost inevitable that, if left to his own devices in the community, the result will be that Mr Brand will reoffend. While his previous offending seems, for the most part, to have been opportunistic, the sexual element of the most recent alleged offences, perpetrated upon an elderly and vulnerable woman who was alone in a home is of particular concern.
It is my view that Mr Brand poses an unacceptable risk to the community if released without some expert consideration of his care and accordingly, I am satisfied that it is appropriate that I make a custody order in relation to Mr Brand.
Conclusion
Given the conclusion I have reached above, I dismiss the charges in the indictment and make the custody order in respect of Mr Brand.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
ASSOCIATE TO JUDGE GLANCY
6 APRIL 2018
0
5
2