The State of Western Australia v Brittain - [2018] WASC 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BRITTAIN [2018] WASC 387
CORAM:   DERRICK J
HEARD:   6 DECEMBER 2018
DELIVERED          :   13 DECEMBER 2018
FILE NO/S:   INS 247 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DALTON JEFFREY BRITTAIN
Accused

Catchwords:

Criminal law and procedure - Armed robbery - Whether fit to stand trial - Whether custody order appropriate

Legislation:

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

Result:

Charge dismissed
Committal quashed
Accused released

Category: B

Representation:

Counsel:

Prosecution	:	Mr J C Whalley
Accused	:	Mr S R C Senaratne

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Legal Aid (WA)

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

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
R v Taylor (1992) 77 CCC (3d) 551
The State of Western Australia v Huggins [2017] WASC 243
The State of Western Australia v Tekle [2017] WASC 170
The State of Western Australia v Truong [2017] WASC 289

DERRICK J:

Introduction

On 22 November 2017 the accused was charged with an offence of armed robbery (charge FR 11701/2017) contrary to s 392(c) of the Criminal Code (WA) (the Code).
On 3 October 2018 the accused was committed on the charge to appear in this court on 29 October 2018.
On 29 October 2018 the accused filed an application dated 26 October 2018 by which he seeks, pursuant to s 12 and s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act), orders declaring him not mentally fit to stand trial on the charge, dismissing the charge and quashing the committal without deciding his guilt or otherwise, and releasing him (the application).
At the accused's appearance in this court on 29 October 2018 the State did not present an indictment and the application was listed for hearing.
The hearing of the application took place before me on 6 December 2018.
The State does not oppose the application.

The alleged facts of the charged offence

The alleged facts forming the basis of the charged offence are as follows.
At about 8.30 pm on Wednesday 11 October 2017 the accused entered the Chicken Treat store located on South Street in Kardinya. The accused waited in line due to another male customer being at the counter, before moving forward to the counter, threatening a female staff member and demanding that she open the cash register. At the time of making his threats and demand the accused had his right hand in his rear trouser pocket. The female staff member opened the cash register and stepped backwards. The accused then walked around the counter and using his left hand removed $100 cash from the cash register.
While the accused was removing the cash from the cash register he still had his right hand in his rear trouser pocket. Further, as the accused was removing the cash one of the other male customers who was in the store and on the other side of the counter leant across the counter and attempted to push the accused's hand out of the cash register.
After removing the cash and as he was moving away from the cash register, and clearly in response to the actions of the customer in attempting to prevent him from taking the cash from the cash register, the accused pulled out a small knife from his right rear trouser pocket. The accused held the knife out at about waist height displaying it to the staff member and the two other male customers who were in the store at the time. The accused then walked towards the door of the store so as to leave. As the accused walked towards the door the male customer who had attempted to push the accused's hand out of the cash register followed the accused and, when the accused got to the door of the store and was in the process of opening the door, pushed him forcefully in the back and out of the store. The accused did not respond to being pushed. He continued to walk away from the store and towards Gilbertson Road.
On Saturday 18 November 2017 the accused again entered the Chicken Treat store. He purchased a bottle of water. He paced up and down inside the store for some time before leaving the store and walking off in a southerly direction on Gilbertson Road. Staff members recognised the accused as the person who had committed the robbery in the store on 11 October 2017.
On Wednesday 22 November 2017 the accused was arrested at his home address. He participated in an electronic record of interview and made full admissions.

Relevant statutory provisions

It is at this point convenient to deal with the statutory provisions that govern the determination of the application. The relevant provisions are contained in pt 3 of the Act.
Section 9 of the Act 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.
The term 'mental impairment' is defined in s 8 of the Act to mean 'intellectual disability, mental illness, brain damage or senility'.
The term 'mental illness' is defined in s 8 to mean:
[A]n 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.
Section 10(1) of the Act provides that an accused is presumed to be mentally fit to stand trial unless the contrary is found under pt 3. Section 10(2) provides that if an accused is found to be not mentally fit to stand trial he is presumed to remain not mentally fit until the contrary is found under pt 3.
Section 12(1) of the Act provides that the question whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way he or she thinks fit.
By s 19(1) of the Act, if I decide that the accused is not mentally fit to stand trial I must consider whether I am satisfied that the accused will not become mentally fit to stand trial within six months after my finding that he is not mentally fit. If I am so satisfied then I must make an order under s 19(4).[1] If I am not so satisfied then I must adjourn the proceedings in order to see whether the accused will become mentally fit to stand trial.[2]
[1] Act, s 19(1)(a).
[2] Act, s 19(1)(b).
Section 19(2) provides that if the proceedings are adjourned they may be adjourned for any period or periods the judge thinks fit, but not for longer than a total period of six months after the finding that the accused is not mentally fit to stand trial.
Section 19(3) provides that if at any time after the proceedings have been adjourned, but before the end of the period of six months, 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, if at the end of that period of six months, the accused has not become mentally fit, the judge must make an order under s 19(4).
Section 19(4) provides, so far as is relevant in the present case, that an order under the subsection is an order dismissing the charge and quashing the committal, without deciding the guilt or otherwise of the accused, and either releasing the accused or, subject to s 19(5), making a custody order in respect of the accused.
Section 19(5) provides that 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 burden of proof

The accused is presumed to be mentally fit to stand trial. The issue of the accused's mental fitness to stand trial was raised by the accused. The accused therefore bears the burden of proving that he is not mentally fit to stand trial.

The evidence adduced on the application

The evidence adduced on the application consisted of the following:
1.Two reports prepared by Dr Elizabeth Vuletich, clinical neuropsychologist, dated 31 July 2018 and 29 November 2018, supplemented by oral evidence;
2.Oral evidence of Ms Jane Clark‑Munn, a Senior Guardian employed by the Office of the Public Advocate for Western Australia; and
3.Closed circuit television footage of the incident the subject of the charged offence.
Dr Vuletich and Ms Clark-Munn were called to give evidence by the State. Dr Vuletich's reports were tendered by the State with the consent of the accused.
The closed circuit television footage was tendered by the accused. I have watched the footage. My above statement of the facts of the charged offence reflects what can be seen on the footage.

The accused's background, current circumstances, and care and support arrangements

The evidence adduced on the application establishes the following in relation to the accused's background, current circumstances, and care and support arrangements.
The accused was born in Perth. He is 29 years old.
The accused's parents separated when he was about 12 years old. Both parents have their own mental health and substance abuse issues.
The accused visits his parents on a regular basis. However, given their mental health and substance abuse issues the accused's parents are not in a position to offer any practical assistance or support to him. Indeed, the accused's parents are unfortunately not a positive influence on him.
The accused has an older sister who he continues to have contact with.
The accused struggled at school. He managed to complete year 9. He does not have any significant employment history.
The accused has a history of illicit substance use. He has been a user of methylamphetamine.
The accused has been diagnosed with attention deficit hyperactivity disorder (ADHD), autism spectrum disorder and an intellectual disability. He has experienced episodes of depression and psychosis. He has previously (in 2016) been a patient at the Alma Street Clinic. While a patient at the clinic he was given monthly antipsychotic depot injections.
In February 2017 the State Administrative Tribunal (SAT) appointed the Office of the Public Advocate as the accused's Public Guardian. A Public Guardian is appointed by SAT in cases involving people over 18 who have a decision making inability due to intellectual disability or other reasons.
The Public Guardian is empowered under SAT's order to make decisions in the accused's best interests in areas relating to accommodation, access to services, legal matters and contacts (that is, who he associates with). Ms Clark‑Munn is a Senior Guardian from the Office of the Public Advocate to whom the Public Advocate has delegated the responsibility for acting as the accused's Public Guardian. She has been involved with the accused since February 2017.
Decisions in relation to the accused's medical treatment are currently made under the limited guardianship of his aunt, Ms Andrea O'Donoghue.
The accused is supported by a multi-disciplinary team who have regular meetings to discuss his case. The multi-disciplinary team includes Ms Clark‑Munn, Ms O'Donoghue, a representative from the Department of Communities' Disability Services and a representative from the Department of Corrective Services.
Up until relatively recently the accused lived independently in a unit complex in Hamilton Hill. He received five hours support a day in the areas of cooking, cleaning, community access, shopping, and medication supervision from an agency called Facilitatrix. For the remaining 19 hours of each day the accused was left without any guidance or direction.
The accused was living in the unit in Hamilton Hill at the time that he is alleged to have committed the charged offence.
Many of the people who were living in the unit complex in which the accused was living were antisocial and/or dysfunctional. The accused, given his degree of social vulnerability was being abused, beaten and stolen from by people living in the unit complex. It was in these circumstances that Ms Clark‑Munn decided that it would be in the best interests of the accused if he was placed with a host family. This is an arrangement by which the accused lives with a family that has agreed to be a host family and has been assessed as suitable to act as a host family.
The accused moved in with the host family in August 2018. The host family live in Halls Head. The host family is comprised of a woman, Ms AB, and her children. The host family involves the accused in family activities and gives him some limited employment. In essence, the accused is treated as part of the host family. The aim of the host family arrangement is to give the accused's life some meaning, purpose and structure, and to expose him to, and engage him in, simple activities of daily living.
The accused is not as part of the host family arrangement supervised at all times. The members of the host family still go about their regular daily activities (for example, attending employment). Therefore there are hours in the day when the accused is not supported and is left to his own devices. This exposes the accused to risk, particularly if when he is unsupervised he returns to Hamilton Hill which is an area he feels familiar with.
The accused's host provides regular written reports in relation to the accused to the organisation that is currently responsible for co‑ordinating the support arrangements for him. The organisation currently responsible for co‑ordinating the accused's support services is called Directions. The nominated co‑ordinator at Directions is Ms Nicole Tangney. Ms Tangney is part of the multi‑disciplinary team that provides support to the accused. Ms Tangney is contracted to provide 40 hours of co‑ordination services per month.
At present the accused is entitled to six hours of support a week over and above the support provided by the host family. The six hours of support a week are used to take the accused on outings (for example, bowling and fishing).
The accused currently undertakes some voluntary work in a brewery. He puts labels on bottles. He also plays basketball.
The accused is not currently under the care of any mental health care services.
The accused is extremely vulnerable to exploitation by others.
The accused is an easily distracted individual. He has a very short concentration span. He struggles to perform most basic daily tasks. He requires almost constant engagement and is unable to entertain himself for any length of time.
In recent times the accused has demonstrated in the presence of Ms AB symptoms which might reflect a psychotic illness. The symptoms include possible auditory hallucinations (the accused claimed the family dog had communicated with him).
Several months ago the accused engaged in some atypical behaviour by sexually propositioning Ms AB and threatening to engage in sexual activity with the family dog if Ms AB refused.
The accused's support arrangements are currently funded solely by the Western Australian National Disability Insurance Scheme trial. The view of Ms Clark‑Munn is that the resources and supports being provided to the accused are, given the nature of his disability, insufficient to cater for his needs.
The accused has recently been accepted into the Commonwealth National Disability Insurance Scheme (NDIS). His transfer to the NDIS is imminent. A planning meeting is scheduled for 12 December 2018.
It is Ms Clark‑Munn's intention to advocate strongly at the meeting on 12 December 2018 for an increase in support funds for the accused. There is a good possibility that once the accused is transferred to the NDIS his support funding will be increased. However, this cannot be guaranteed. Any additional funds that are secured under the new funding arrangements will be used to provide the accused with more support services to help keep him occupied and engaged during the day. There is no possibility of the accused's current level of support funding being reduced once he transfers to the NDIS.
The accused is in receipt of a disability pension. The pension payments that he receives are sufficient for his day to day needs.

The accused's criminal record

The accused has a criminal record.
As a juvenile the accused was convicted of a variety of offences including a significant number of criminal damage offences, offences of disorderly behaviour, an offence of making a threat to kill, endanger or harm, an offence of assault and an offence of possession of cannabis. The criminal damage offences were in the main comprised of graffiti type offences.
As an adult the accused has continued to commit criminal damage (graffiti) offences. He has also been convicted of, among other things, offences of breaching a violence restraining order, offences of possessing cannabis, offences of breach of bail and an offence of assault occasioning bodily harm.
In addition, on 8 October 2010 the accused was convicted of an offence of armed robbery for which he was sentenced to 2 years imprisonment conditionally suspended for 18 months. The facts of this offence, which I have been made aware of by the parties, involved a fast food store and the use of a knife. The facts were not dissimilar to the alleged facts of the offence with which the accused is currently charged, although it is I think fair to say that the degree of threatened violence used by the accused in the commission of the offence was greater than that which is currently alleged against him.
The accused's last conviction, prior to allegedly engaging in the conduct the subject of the charged offence, was for an offence of criminal damage. This was another graffiti type offence. The accused committed this offence on 13 October 2016. He was convicted of the offence on 28 November 2016. Accordingly, prior to allegedly engaging in the conduct the subject of the charged offence the accused had remained offence free for approximately 12 months.

The evidence as to the accused's mental fitness to stand trial

The evidence adduced at the hearing of the application in relation to the accused's fitness to stand trial came from Dr Vuletich.

The evidence of Dr Vuletich

The relevant evidence of Dr Vuletich was comprised of her first report supplemented by oral evidence.

Report dated 31 July 2018

In her report dated 31 July 2018 Dr Vuletich states the following.
She was asked to provide a neuropsychological opinion as to the accused's fitness to stand trial.
She saw and assessed the accused on 18 July 2018.
The accused attended for his assessment with his Facilitatrix mentor, Mr David Lawton. Mr Lawton remained present during her initial background interview with the accused and provided some collateral information. However, Mr Lawton was not present during her assessment of the accused.
The accused impressed as quite immature in his interactions and his eye contact was often atypically sustained.
The accused's conversation was slow, dysprosodic, lacking sophistication and had occasional features of echolalia. His non‑verbal communication was atypical although his eye contact was often sustained.

The accused seemed to grasp test instructions relatively well, although he did require frequent repetition of lengthier verbal instructions.
On assessment the accused's attention fluctuated and he required regular movement breaks to assist him to focus. He was quite fidgety although he did not impress as overly distractible and he was generally able to focus 'within' tasks. There was a degree of insight (as evidenced by self‑correcting efforts), although his insight into his cognition would appear to be very shallow.

Neuropsychological assessment results

She undertook a neuropsychological assessment of the accused's intellectual capacity, his basic attention, working memory and processing speed, his verbal and language abilities, his visuospatial and perceptual skills, his memory and learning abilities and his executive functioning.
The accused was oriented to person and partially orientated to place. However, he was not orientated to time. He was unaware of the year, month, day of the week or time of the day.
The accused was administered the core subtests from the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS‑IV). Based on his WAIS‑IV results, the accused's Full Scale IQ was estimated to fall within the extremely low range.
Qualitatively and consistent with his diagnosis of ADHD, the accused demonstrated weakness in his sustained attention with frequent need for movement breaks and high levels of fidgeting.
On formal assessment the accused demonstrated a relatively sound basic verbal attention span with performances across tasks falling within the low average to average range.
In contrast, the accused's verbal working memory capacity was notably reduced and he seemed to have significant difficulty in juggling more than one to two pieces of material in mind. His performance in this respect was within the extremely low range. Within the WAIS‑IV, his overall Working Memory Index fell within the extremely low range, and was significantly weaker than his overall general verbal abilities.
The accused's processing speed impressed as somewhat slowed. This observation was mirrored on formal assessment results with scores on timed measures typically falling within the extremely low range when compared with age‑matched normative data.
Collectively her observations and assessment results highlight that the accused has a preserved basic attention capacity but with compromised sustained attention, an impaired working memory, and generalised psychomotor slowing.
Qualitatively the accused was able to grasp simple verbal questions and instructions, though his receptive language skills appeared adversely impacted by speed of processing and working memory deficits. His speech was dysprosodic and the content was quite disorganised.
On formal assessment the accused obtained a borderline (cusp extremely low) score on an overall measure of his verbal ability. He scored within the borderline to low average range on a task assessing acquired verbal knowledge, although his 'fund of word knowledge' was extremely low. He scored within the borderline range on a measure of abstract verbal reasoning, and he obtained low average scores on verbal fluency tasks.
The accused's overall Perceptual Reasoning Index within the WAIS‑IV 'tested out' within the extremely low to borderline range. Within this index he obtained an extremely low score on a measure of non‑verbal abstract reasoning, and a low average score on a measure of visuoconstruction.
Overall the accused's basic spatial abilities would appear intact. However, there was clear impairment in higher level abilities, in part compromised by his executive and attentional deficits.
Overall the accused's memory profile suggests a variable capacity to encode new verbal information. He impressed as easily overwhelmed when material exceeded his attentional capacity. His ability to effectively and efficiently acquire new information was adversely impacted by his significant executive and basic processing deficits.
The accused's executive functioning abilities were assessed by making observations of his behaviour, and by using both qualitative and quantitative evidence from a number of tasks. Executive functions include higher level cognitive abilities that help initiate, guide and control one's actions in daily life (such as planning, shifting attention, flexibility, inhibition of automatic responses, and the ability to generate novel ideas). They are necessary for appropriate, socially responsible, effective and goal‑directed behaviour.
On assessment the accused obtained extremely low test results on measures of mental flexibility, cognitive inhibition, non‑verbal abstract reasoning, non‑verbal generativity and planning. There were also qualitative features of perseveration (across several tasks) and poor organisation. In contrast, some of the accused's verbal executive test results were marginally stronger. Specifically, he produced a borderline score on verbal abstract reasoning, and low average results on both letter and category verbal fluency trials.
Taken together the results obtained highlight fairly broad executive deficits in inhibitory control, and the accused's capacity to monitor, update and adjust his approach to complex tasks. Verbal executive abilities were marginally stronger than non‑verbal executive abilities.
In summary, her neuropsychological assessment of the accused highlighted pervasive deficits including mental impairment, impaired sustained attention, impaired working memory, generalised psychomotor slowing and communication deficits. The accused's memory was also significantly compromised, characterised by atypical intrusions and inconsistent capacity to encode new information. The accused could retain some material over time, but could not reliably differentiate true memories from intrusive material. Although the accused's verbal generativity was sound and his verbal extraction was only moderately reduced, he also exhibited broad executive dysfunction. This extended to impairments in cognitive inhibition, planning, problem solving, insight, mental flexibility and fluid reasoning.
There is historical evidence that the accused has a complex interplay of neurodevelopmental disorders. The disorders include intellectual disability, autism spectrum disorder and ADHD. His cognition and neurological functioning is likely further compromised by his past substance use and the impact of his current mental illness and medication.
The accused's diagnosis of intellectual disability alone satisfies the definition of 'mental impairment' contained in s 8 of the Act.

Section 9 of the Act

In relation to the accused's ability to understand the nature of the charge (the Act, s 9(a)), the accused was able to demonstrate a cursory knowledge of the charged offence. When the charge was discussed with him using simple language he responded 'just a plastic butter knife', and seemed to understand the allegation that he took $100.
Although the accused could mention some key concepts of the charge, his current neuropsychological profile indicates a general weakness in expressive and receptive aspects of communication. If at least a borderline level of core verbal abilities is required to understand the language of the charge and to properly comprehend the charge when it is read to him, he is likely to struggle significantly.
In her opinion the requirement that the accused understand the nature of the charge 'could be considered partially met'.
As to the accused's ability to understand the requirement to plead to the charge or the effect of his plea (the Act, s 9(b)), the accused struggled to adequately describe the concept of being guilty and he could not explain the concept of being not guilty. He was unable to distinguish between the act of performing an offence (or not) and the legal assertion of entering a plea. He stated that pleading guilty would result in 'being charged with it'. However, he was unable to explain or clarify what he meant by this. He declared that a person could still attempt to prove their innocence even after entering a guilty plea. He said that the effect of a not guilty plea would be 'it just goes on and on'. However, again he struggled to further articulate what he meant by this.
On current neuropsychological assessment the accused demonstrated marked inflexibility in his thinking, difficulties with overriding automatic (over‑learned) responses, generally poor reasoning, as well as an impoverished capacity to learn new verbal material and retain this over time. Therefore, even with accommodations and further education, the accused would be likely to struggle to fully understand the concept of pleading to the charge and its effect on his case.
In her opinion the accused is unable to understand the requirement to plead to a charge or the effect of a plea.
With respect to the accused's ability to understand the purpose of a trial (the Act, s 9(c)), the accused could not outline the key concepts of a trial. Although the accused applied some of the 'court vernacular' his explanation of a trial did not seem to adequately describe the general premise of a trial. The accused did not seem to grasp the importance of hearing evidence and testing the evidence in order to determine innocence or guilt. Further, even with support and explanation the accused seemed to be unaware and easily confused by the roles and functions of various parties involved. For example, he expressed a quite thought disordered view that the role of the jury was, 'Just to make sure, to make for me to know what it's about. What they're up to outside in the truck'.
In her opinion the accused is unable to understand the purpose of a trial.
As to the accused's ability to understand or exercise the right to challenge jurors (the Act, s 9(d)), the accused denied any awareness or understanding of a jury or his right to challenge jurors. He seemed confused when this was expanded upon for him. In her opinion the accused is unable to understand or exercise the right to challenge jurors.
As to the accused's ability to follow the course of a trial (the Act, s 9(e)), the accused has a reported intellectual disability (which the neuropsychological assessment results are in keeping with) and broader cognitive impairments including sustained attention, core verbal abilities, speed of processing, working memory and executive functioning. These deficits are underpinned by an underlying neurodevelopmental disorder, and are likely further exacerbated by both acquired deficits due to substance misuse and thought disorder (mental illness). Additionally, the accused has an impoverished foundational knowledge regarding the legal process. In these circumstances it would be very difficult for him to follow and understand the trial proceedings. In her opinion the accused is unable to follow the course of a trial.
With respect to his ability to understand the substantial effect of evidence presented by the prosecution in the trial (the Act, s 9(f)), the accused, despite previous participation in court processes, did not appear to have any knowledge or understanding of the effect of evidence. He did not demonstrate any awareness of different types of evidence in general or specifically in relation to the charge. Moreover, he did not seem aware of the presence of a prosecutor or their role in presenting evidence in an attempt to prove guilt.
Given the accused's impaired language, intellectual and reasoning abilities, he would appear to lack the capacity to comprehend the effect of evidence. Moreover, he has a limited capacity to acquire and retain this information even with education and simplification.
In her opinion the accused is unable to understand the substantial effect of evidence presented by the prosecution in a trial.
With respect to the accused's ability to properly defend the charge (the Act, s 9(g)), her current assessment of the accused confirmed generalised intellectual impairment which is in keeping with his reported background of known intellectual disabilities. Also commensurate with this was current evidence for widespread neuropsychological impairments including deficits in basic cognitive proficiency (including sustained attention, working memory, speed of processing), core language deficits impacting both expressive language (highly disorganised speech, restricted vocabulary, and to a much lesser extent slightly reduced verbal abstraction) and receptive language, unreliable memory encoding (and vulnerability to intrusive and confabulatory memories) and generalised executive dysfunction. Within the court setting these deficits would impact adversely on the accused's ability to maintain sufficient focus, identify relevant information and filter out less relevant or intrusive material, juggle information in his mind, comprehend what is presented, consider and weigh up relevant facts, effectively communicate and instruct his lawyer, and reason through and appreciate the potential impact of any instruction or appreciate potential outcomes more broadly. Moreover, the accused's disorganised thought and speech are likely to pose significant barriers to his capacity to provide a coherent and reliable verbal testimony, as well as to his ability to respond meaningfully to questioning.
In her opinion the accused is unable to properly defend the charge.
From a neuropsychological perspective, given the accused's current results and his intellectual disability, autism spectrum disorder and ADHD, she is of the opinion that the accused is not fit to stand trial.

Supplementary oral evidence

In her oral evidence Dr Vuletich confirmed that she maintained the opinions expressed in her report.

Is the accused mentally fit to stand trial?

Legal principles

In Eastman v The Queen[3] Gleeson CJ referred to a number of propositions recorded by the Ontario Court of Appeal in R v Taylor[4] as representing the state of authority in that province. His Honour noted that while the ultimate test to be applied in the case before the court was the statutory test applicable in the relevant jurisdiction (the Australian Capital Territory), the propositions recorded in R v Taylor were sound and consistent with the statutory test. In my opinion the propositions are also broadly consistent with the statutory test contained in s 9 of the Act.[5] The propositions recorded by the Court of Appeal were as follows:[6]
1.The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial;
2.The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial;
3.The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial; and
4.The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.

Analysis and decision

[3] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [24] ‑ [27].

[4] R v Taylor (1992) 77 CCC (3d) 551, 564 ‑ 565.

[5] This was also the opinion expressed by Fiannaca J in the The State of Western Australia v Tekle [2017] WASC 170 [105].

[6] R v Taylor (564 ‑ 565).

It is submitted on behalf of the State that the evidence adduced on the application establishes that the accused is because of his mental impairment not fit to stand trial. This is also, quite obviously, the submission made on behalf of the accused.
I accept the evidence given by Dr Vuletich.
On the basis of the evidence of Dr Vuletich I am satisfied on the balance of probabilities that the accused suffers from a mental impairment, namely an intellectual disability. I am also satisfied on the basis of the evidence of Dr Vuletich that the accused, because of his mental impairment, is:
1.unable to understand the requirement to plead to the charge or the effect of a plea;
2.unable to understand the purpose of a trial;
3.unable to understand or exercise the right to challenge jurors;
4.unable to follow the course of the trial;
5.unable to understand the substantial effect of evidence presented by the prosecution in the trial; and
6.unable to properly defend the charge.
This is not a case, in my view, in which it can be said that the evidence of Dr Vuletich goes no further than demonstrating that one or more of the propositions recorded in R v Taylor are applicable.
It follows that I am satisfied that the accused is not mentally fit to stand trial on the charge of armed robbery.

Will the accused become mentally fit to stand trial within six months?

In her report dated 31 July 2018 Dr Vuletich states that the accused has both pervasive and likely permanent mental impairment secondary to neurodevelopmental disorders (intellectual disability and autism). She states that the accused is unlikely to improve over time and that he is not likely to recover his fitness to stand trial over time. She states that there would likely be further fluctuating impact from the accused's mental illness (reported psychotic episodes) when the accused is acutely unwell. She expresses the view that this would only serve to further reduce and not enhance the accused's cognitive capacity and fitness to stand trial.
In light of Dr Vuletich's evidence it is submitted on behalf of the State that I should find that the accused will not become mentally fit to stand trial within six months. The same submission is made on behalf of the accused.
On the basis of the evidence given by Dr Vuletich I am satisfied that the accused will not become mentally fit to stand trial within six months.

Release or custody order

It follows from my above stated findings that I am required by s 19(1)(a) and s 19(4) of the Act to make an order dismissing the charge without deciding the guilt or otherwise of the accused and either release him or make a custody order in respect of him.
As I have already indicated, s 19(5) of the Act stipulates that a custody order must not be made unless the statutory penalty for the alleged offence is or includes imprisonment (which is the case for armed robbery) and the judge is satisfied that a custody order is appropriate having regard to matters specified in the section (which I have already set out earlier in these reasons). Thus s 19(5), in substance, requires the court to make an assessment of the case against the accused and the potential danger that he may pose to the community if he is not kept in custody.
On behalf of the State it is submitted that in all the circumstances the appropriate order is to release the accused. Once again, the same submission is made on behalf of the accused.
I turn to address the matters specified in s 19(5).

Strength of the evidence

The accused's conduct was captured on closed circuit television. He made full admissions when interviewed. Accordingly, the case against the accused is a very strong one.

Nature and circumstances of the alleged offence

The offence of armed robbery which the accused is alleged to have committed is serious. It carries a maximum penalty of life imprisonment.
As to the circumstances of the alleged offence, although the conduct the subject of the charge might be described as amateurish and unsophisticated, the alleged offence cannot be said to be at the lower end of the range of seriousness of armed robbery offences. The alleged conduct occurred in a fast food store where members of the public were present and where the store attendant was a vulnerable female. The alleged conduct involved the use of a knife. Therefore the alleged offence was serious.

Personal circumstances

I have addressed the accused's character, antecedents, age, health and mental condition in referring to the accused's personal circumstances and background, his criminal record and the evidence relevant to his mental fitness to stand trial.

Public interest

That leaves the issue of the public interest.
There is a public interest in ensuring that a person who has a significant mental impairment is treated humanely. If a custody order is made the accused will in all probability be placed in a prison. Given the accused's intellectual disability and mental health issues, and all that comes with his conditions, it is beyond doubt that the accused would be distressed in the prison environment and would be highly vulnerable to harm and exploitation by others. Further, it is unlikely that he would receive the level of care, supervision and treatment that he requires.
It is also, however, necessary in considering whether a custody order is appropriate having regard to the public interest, to take into account the risk that the accused will pose to others in the community if he is released.[7]
[7] The State of Western Australia v Huggins [2017] WASC 243 [45]; The State of Western Australia v Truong [2017] WASC 289 [48].
In order to properly address the question of the risk that the accused poses to others in the community it is necessary to refer to the evidence adduced during the hearing of the application that bore directly upon this question. The evidence came from Dr Vuletich in the form of the contents of her second report dated 29 November 2018 supplemented by oral evidence, as well as from Ms Clark‑Munn.

The evidence of Dr Vuletich

In her report dated 31 July 2018 Dr Vuletich expresses the view that the accused is clearly a highly vulnerable man who could continue to require quite substantial oversight and support with collaboration between services to keep him safe, meaningfully engaged within the community and to minimise the risk of recidivism.
In her second report dated 29 November 2018 Dr Vuletich, based on information that she has obtained from Ms Tangney, Ms Clark‑Munn and other sources, points out that despite the accused's plethora of diagnoses he is not currently engaged in regular ongoing multi‑disciplinary mental health or psychiatric oversight. She states that the accused's current guardian and disability service team have not been furnished with detailed information about the accused's mental health diagnoses, symptoms or management. She states that the clear message that she has received is that the accused's care and support needs are neither well understood by current stakeholders nor adequately resourced for his clearly complex needs.
Dr Vuletich states in her second report that while the accused has reportedly shown some positive changes in the context of his current services within the community, the present supports are not extensive enough and are lacking the key component of specialist mental health input. She states that even with face to face support the accused remains highly distractible, stimulus bound, easily led or influenced by others and unreliable in his recall and capacity to problem solve. She considers that the accused appears to be in need of fairly continuous one to one oversight and stimulation.
In her second report Dr Vuletich states that if the accused is released into the community there appear to be some 'clear areas of need'.
The first of the areas of need identified by Dr Vuletich relate to the respondent's mental health. In Dr Vuletich's opinion the accused requires specialist assessment of his mental illness, together with treatment and information sharing with those involved in his day to day management.
The second area of need identified by Dr Vuletich relates to the accused's accommodation. Although the respondent has reportedly established positive relationships with his host family and has been said to have made some gains in adherence to boundaries and rules within the home, Dr Vuletich has some concerns that his current needs at times may surpass what the host family together with the limited six hours of agency support are physically able to provide (at least without significant additional one to one support when Ms AB is not able to be present). In Dr Vuletich's opinion, depending on the outcome of the NDIS planning meeting and the respondent's access to additional supports, consideration could be given to accommodating the accused within a group home, with 'multiple staff, structure, and access to opportunities for supported pro‑social activities'.
The third area of need identified by Dr Vuletich relates to his previous substance misuse. In Dr Vuletich's view, in the context of the accused's intellectual disability, his inattentiveness, impulsivity and his social vulnerabilities, he is not likely to recognise the relevance of abstaining, nor problem solve effectively in high risk situations where substances are available to him. She strongly encourages the implementation of environmental strategies to mitigate the accused's risk of relapse.
In her oral evidence Dr Vuletich confirmed that she had read the statement of material facts for the charged offence. She said that her role as a neuropsychologist did not enable her to say whether any of the accused's deficits referred to in her reports were causally linked to the accused's alleged conduct the subject of the charged offence. Dr Vuletich did, however, say that the accused is an 'incredibly vulnerable - cognitively vulnerable man' and that therefore planning and capacity to foresee consequences 'are not his forte'. She stated that she would 'guess' that his difficulties with planning and the capacity to foresee consequences could play a role in his alleged behaviour the subject of the charged offence.
In relation to what if anything could be done to reduce the accused's risk of recidivism, Dr Vuletich said that in her view the accused really needs external supports put in place to help him establish clear routines and what is expected of him. She stated that this is what the accused's Public Guardian and guardian are trying to do at the moment. She said that external supports are 'probably paramount' for the accused.
Dr Vuletich did not consider that her assessment of the accused enabled her to predict what would have occurred if the accused had encountered resistance from staff at the Chicken Treat store or if the staff had refused to comply with his demand for money.

The evidence of Ms Clark‑Munn

In her evidence Ms Clark‑Munn said the following.
She does not have a lot of physical contact with the accused. That is not her role. Her role is to be 'a bit more remote' and to oversee and step in, and direct decision making on behalf of the accused. Nonetheless, given the nature of the accused's case and his behaviour she is a lot more involved with him than with other people for whom she is responsible. She would call her involvement with the accused intense.
There is a point at which the accused can pose a risk to others. However, from her observations of, and experience with, the accused, much of the conduct he engages in is behaviour that he has learned or has been directed by others to engage in. It is not behaviour that is driven by him. He is 'desperate to feel like he's part of a crowd'.
The accused has never demonstrated any physical violence or aggression toward her.
She is aware of the factual allegations forming the basis of the charged offence. She appreciates that for someone who did not know the accused his alleged conduct would have been terrifying. However, she would have read the situation differently because of her knowledge of the accused. Her view, based on her knowledge of, and dealings with, the accused is that he does not represent a danger to other people in terms of physical violence. She cannot 'say for sure in all honesty' how the accused would have reacted if the Chicken Treat store attendant had resisted his demands for money or if anyone present had attempted to restrain him. All she can say based on her experience with the accused is that she is not fearful of him and that she knows he is harmless.
In her view, in order to reduce or minimise the risk of the accused committing further offences, an increase in his support funding is required so that his mental health condition can be properly diagnosed, properly tailored interventions for him can be put in place, and additional hours of support with a view to keeping him engaged can be provided. This may involve finding accommodation for the accused in which he is subjected to 24 hour oversight. It may also involve engaging specialists including a psychiatrist as part of the multi‑disciplinary team responsible for the care and support of the accused.
In her view the accused also needs occupational therapy support to address what she perceives to be some physical deficits in his level of functioning.
In her view there is no doubt that the accused's circumstances have improved since he was relocated to the host family. The accused has now fallen into a 'bit of a pattern' which involves him spending more hours in the host family home, starting to engage in the household routine, and starting to do more consistently things that are expected of him. If the accused does on occasions gravitate back to Hamilton Hill or his parents he still wants to return to his host family and be part of that environment. She is seeing some 'wonderful' changes with the accused. Moving the accused to the host family was the right thing to do. However, there are still further changes that need to be made in the accused's care.
It is fair to say that although the present support services being provided to the accused are in her opinion inadequate and insufficient, he does have a multi-disciplinary team looking after his best interests and doing their best to keep him out of trouble.
So that is a statement of the relevant evidence given by Ms Clark‑Munn.
I note that the opinion evidence given by Ms Clark‑Munn in relation to the likelihood of the accused engaging in physical violence, and in relation to how the accused might have reacted if during his alleged commission of the charged offence his demands had been refused or attempts had been made to restrain him, might be said to be supported, to some very limited extent, by the way that the accused responded to being briefly manhandled, followed and forcefully pushed out of the Chicken Treat store by the male customer.

Is there a risk?

It is clear from the evidence of Dr Vuletich and Ms Clark‑Munn that despite the best efforts of those currently responsible for providing the accused with care and support, he is not currently being given, and has not for some time been given, the level of care and support required to meet his complex and varied needs. Nonetheless, even with this substantially less than optimal level of care and support the accused has managed for the period of a little over 12 months that has passed since he was charged with the armed robbery managed to remain offence free.
Given the current level of support being given to the accused, his intellectual disability, his mental health issues, his impulsivity and his social vulnerabilities it is, in my opinion, impossible to avoid the conclusion that he poses some risk to not only himself but also others in the community. There is, in my view, as things currently stand, some risk that if the accused remains in the community he will commit further offences, including an offence of the type with which he is currently charged. Indeed, in the case of the accused it is likely that such a risk will always exist to some extent regardless of the level of care and support given to him. However, when I consider the degree of risk posed by the accused, which in my view is relatively limited, in light of the inevitable significant adverse consequences for his long term wellbeing of making a custody order in respect of him, I am satisfied that the public interest does not of itself require the making of a custody order.
Finally, I make the fairly self‑evident point in this context that if the accused's imminent transfer to the NDIS results in an increased level of funding and support for him, with the result that the needs identified by Dr Vuletich and Ms Clark‑Munn will be able to be more fully addressed, the risk to others that the accused currently poses is likely to be further reduced.

Decision

Balancing on the one hand the seriousness of the offence with which the accused is charged and the strength of the evidence against him, against on the other hand the accused's personal circumstances, his significant intellectual and mental difficulties, and the public interest, I am not satisfied that a custody order is appropriate. In my opinion the appropriate order is to release the accused.

Conclusion

For the reasons I have stated I would make orders in the following terms.
1.Charge number FR 11701/2017 is dismissed.
2.The accused's committal to this court on charge FR 11701/17 is quashed without deciding his guilt or otherwise.
3.The accused is to be released.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK
13 DECEMBER 2018