The State of Western Australia v DJM
[2021] WADC 2
•15 JANUARY 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DJM [2021] WADC 2
CORAM: BOWDEN DCJ
HEARD: 13 JANUARY 2021
DELIVERED : 15 JANUARY 2021
FILE NO/S: IND 1582 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DJM
Catchwords:
Criminal law - Criminal procedure - Fitness to stand trial
Legislation:
Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Evidence Act 1906 (WA)
Result:
Accused unfit to stand trial
Release order made
Representation:
Counsel:
| The State of Western Australia | : | Mr L Hobson |
| Accused | : | Ms K Kumar |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Kaminni Kumar |
Case(s) referred to in decision(s):
Eastman v The Queen [2000] HCA 29
Ngatayi v The Queen (1980) 147 CLR 1
R v Gardiner (No 2) (1999) 21 SR (WA) 316
R v Gardiner (No 3) (2000) 24 SR (WA) 136
R v Lindley [2003] WADC 41
R v Robson [2001] WADC 133
R v T (2000) 109 A Crim R 559
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 Sanders [2012] WASC 409
The State of Western Australia v Stimpson [No 2] [2020] WASC 19
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:
On 13 January 2021 I found that Mr DJM was not fit to be tried and was unlikely to become fit to be tried in the following six months. I concluded that a custody order was not appropriate and made an order quashing the indictment and releasing Mr DJM.
I now publish my reasons for so doing.
Background
Mr DJM is charged with seven counts of sexual impropriety against three victims being his daughter, niece and granddaughter.
These counts are as follows:
•Count 1 On a date unknown between 26 April 1980 and 28 April 1981 at Thornlie, DJM unlawfully and indecently dealt with VRK, a child under the age of 14 years by pressing his groin against her buttocks.
•Count 2 On a date unknown between 26 April 1983 and 28 April 1984 at Thornlie, DJM unlawfully and indecently dealt with VRK, a child under the age of 14 years by engaging in cunnilingus.
•Count 3 On the same date and at the same place as in count 2, DJM carnally knew VRK, a person he then knew was his daughter by penetrating her vagina with his penis.
•Count 4 On 25 December 1994 at Perth, DJM indecently dealt with SRR, a child of or over the age of 13 years and under the age of 16 years by kissing her on the lips.
•Count 5 On a date unknown in 1995 at Armadale, DJM sexually penetrated SRR, a child of or over the age of 13 years and under the age of 16 years by penetrating her vagina with his finger.
•Count 6 On a date unknown between 31 December 2009 and 1 January 2012 at Thornlie, DJM sexually penetrated CJK, a child under the age of 13 years by penetrating her vagina with his finger.
•Count 7 On a date unknown between 31 December 2009 and 1 January 2012 at Thornlie, DJM sexually penetrated CJK, a child under the age of 13 years by penetrating her vagina with his finger.
Counts 1 to 3 were allegedly committed between 1980 and 1984 and relate to Mr DJM's daughter, counts 4 and 5 allegedly committed between 1994 and 1995 and relate to Mr DJM's niece and counts 6 and 7 allegedly committed between 2009 and 2012 and relate to Mr DJM's granddaughter.
Issue before the court
The issue before the court is whether Mr DJM is mentally unfit to stand trial as defined by the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act).
No witnesses were called. The evidence consists of three medical reports being the report of the forensic Dr Patchett of 30 November 2020 and 8 January 2021, the report of the forensic psychiatrist Mr Seaburne-May dated 23 May 2019 and the prosecution brief.
The law
Unfitness to stand trial is determined pursuant to the Act. 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;
(b)unable to understand the requirement to plead to the charge or the effect of a plea;
(c)unable to understand the purpose of a trial;
(d)unable to understand or exercise the right to challenge jurors;
(e)unable to follow the course of the trial;
(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.
Section 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 DJM being unable to meet any one of the criteria in s 9(a) ‑ s 9(g)? If so, Mr DJM would be mentally unfit to stand trial.
If Mr DJM is found to be mentally unfit 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 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 (No 2) (1999) 21 SR (WA) 316; R v Robson.
The first issue to address is whether Mr DJM suffers from a mental impairment.
Does Mr DJM suffer from a mental impairment?
Dr Seaburne-May's report of 23 May followed a consultation with Mr DJM on 21 May 2019. Dr Seaburne-May concluded that Mr DJM suffered from no enduring psychiatric disorder and did not show any significant signs of dementia. He said that Mr DJM was fit to stand trial.
Dr Patchett saw Mr DJM in November 2020 and reached a different conclusion. Dr Patchett said Mr DJM has a mental impairment pursuant to s 8 of the Act as he suffers from a major neurocognitive disorder. Dr Patchett reached this conclusion based on a mental status examination and a cognitive screening test.
The cognitive screening test referred to is the Montreal Cognitive Assessment which was performed to explore Mr DJM's cognitive functioning.
A score of 26 is considered to be normal. Persons with mild cognitive impairment score an average 22.1. Those with Alzheimer's disease score an average 16.2 points. Mr DJM scored 15 points which puts him in the clearly impaired range.
The neurocognitive disorder that Mr DJM suffers from is commonly referred to as dementia of the Alzheimer's type. This condition is permanent and progressive and it is likely to continue to deteriorate.
I accept the report of Dr Patchett who examined Mr DJM in November 2020, some 18 months after Dr Seaburne-May's examination. The State accepts Dr Patchett's assessment and did not seek to have Mr DJM re-examined by Dr Seaburne-May.
I am satisfied on the balance of probabilities, based on the report of Dr Patchett, that Mr DJM suffers a mental impairment within the meaning of the Act being a major neurocognitive disorder commonly known as dementia of the Alzheimer's type.
Does Mr DJM 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.
Mr DJM is only unfit for trial if the mental impairment results in one of the s 9 criteria are met.
It is not necessary for Mr DJM 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.
The test is not to be applied as if Mr DJM is unrepresented. It is the ability of Mr DJM to properly defend the charge assisted by counsel which is the relevant question: Ngatayi v The Queen (1980) 147 CLR 1. It is not necessary that the accused alone must be able to mount a defence: Ngatayi v The Queen. It must be taken into account that the accused will be assisted by counsel.
The test is not a demanding one however:
… [He] must … have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of facts known to the court and to his counsel, if any (R v Dunne [2001] WASC 263 [10]; R v Presser [1958] VR 45, 48.)
If Mr DJM 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 a trial to proceed: R v T (2000) 109 A Crim R 559, 565; R v Lindley [2003] WADC 41.
The District Court is experienced in dealing with witnesses and accused persons 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 [2019] WADC 40.
The court processes includes guidelines to assist counsel with the questioning of such witnesses and the court can take breaks to ensure an accused does not become unacceptably overwhelmed.
The trial judge ultimately controls the questions put to witnesses and the accused and is in a position to ensure that questions are simple and not confusing: The State of Western Australia v T‑S.
Is Mr DJM unable to understand the nature of the charge pursuant to s 9(a) of the Act?
Dr Patchett said that Mr DJM was able to demonstrate a rudimentary understanding of the nature of the charges against him and put forward positive motives for why his daughter, niece and granddaughter made complaints about his behaviour. Whilst Mr DJM could not recall the precise wording of the charges he said that he did not perform the alleged acts that resulted in the charges.
I am satisfied that Mr DJM is able to understand the nature of the charges.
Is Mr DJM unable to understand the requirement to plead to the charge or the effect of a plea pursuant to s 9(b) of the Act?
Dr Patchett refers to Mr DJM stating 'I'll plead not guilty, I did not do those things it's not possible I did those things'.
Dr Patchett said that Mr DJM demonstrated little understanding of the requirement to plead to the charge and no understanding of the effect of the plea. However Mr DJM said he did not perform the alleged acts and referred to his innocence and demonstrated a rudimentary understanding of the nature of the charges and was able to proffer possible motives for laying of the charges against him.
I am not satisfied that, aided by competent legal representation, Mr DJM would be unable to understand the requirement to plead to the charges or the effect of the plea.
Is Mr DJM unable to understand the purpose of a trial pursuant to s 9(c) of the Act?
Dr Patchett said that Mr DJM did not demonstrate that he understood what the purpose of the trial is even when he was told that he could plead guilty or not guilty. Dr Patchett also said that when Mr DJM was told that if he pleaded not guilty the matter would go to trial he was unable to explain what the purpose of the trial would be.
There is nothing in Dr Patchett's report that indicates that, with the aid of legal representation, Mr DJM would not have understood that the purpose of the trial was to determine whether he was guilty or not guilty.
I am not satisfied that, aided by competent legal representation, Mr DJM would not be able to understand the purpose of the trial.
Is Mr DJM able to understand or exercise a right to challenge jurors pursuant to s 9(d) of the Act?
Dr Patchett said that Mr DJM could offer no explanation for the role of the jury and could not offer any explanation for the right of challenged jurors even after the role and function of a jury was carefully explained to him.
Dr Patchett concluded that Mr DJM was unable to understand or exercise his right to challenge jurors and believed that this lack of understanding partly related to his legal naivety combined with language difficulties.
I am satisfied based on Dr Patchett's opinion that Mr DJM is unable to understand or exercise his right to challenge the jurors and is therefore unfit to stand trial.
Is DJM unable to follow the course of the trial pursuant to s 9(e) of the Act?
Is DJM unable to understand the substantial effect of evidence presented by the prosecution in the trial pursuant to s 9(f) of the Act?
Is DJM unable to properly defend the charge pursuant to s 9(g) of the Act?
Dr Patchett said that Mr DJM's neurocognitive disorder rendered him incapable of following the course of the trial, unable to understand the substantive effect of evidence presented and unable to properly defend the charges and instruct counsel.
Whilst Dr Patchett could not go into further details as to, for example, how the Alzheimer's affects Mr DJM's problem-solving capacities and reasoning abilities or impedes his capacity to grasp the implications of the evidence and to give instructions, I do accept his conclusions that he is unable to follow the course of a trial and unable to understand the substantial effect of evidence and unable to properly defend the charges and instruct counsel and is therefore unfit to stand trial.
Conclusions on s 9 of the Act
The consequences
I have found that Mr DJM 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 DJM will become mentally fit to stand trial within six months?
In Dr Patchett's report of 8 January 2021 he specifically addresses the issue of whether Mr DJM will become mentally fit to stand trial within six months.
Dr Patchett notes that Mr DJM's neurocognitive decline is permanent and progressive and that he is unlikely to recover and is more likely to continue to deteriorate. In Dr Patchett's opinion, it is highly unlikely that Mr DJM will become fit to stand trial in six months. Mr DJM is currently 81 years of age and residing at a nursing home in Kelmscott.
I am satisfied that Mr DJM will not become mentally fit within six months and accordingly the court must quash the indictment without deciding the guilt of Mr DJM and either release him or make a custody order: s 19(1) and s 19(4).
Custody order or release?
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 him;
(b)the nature of the alleged offence and alleged circumstances of its commission;
(c)Mr DJM's character, antecedents, age, health and medical condition; and
(d)the public interests: s 19(5).
In this case each of the seven alleged offences are punishable by imprisonment.
Custody order
If a custody order is made within five days the Mentally Impaired Accused Review Board (the Review Board) established under the Act must review the case and determine the place where Mr DJM is to be detained. Until that decision is made Mr DJM is detained either in an authorised hospital, a prison or detention centre: s 25.
If a custody order is made Mr DJM must be detained in an authorised hospital, a declared place, a detention centre or a prison as determined by the Review Board and is detained in one of those places until released by an order of the Governor.
A release order made by the Governor can be made unconditionally or on conditions including conditions relating to undergoing specific treatment, residing at a specified place and complying with lawful directions from a supervising officer: s 35(3) and s 35(4).
A person detained subject to a custody order may be granted a leave of absence by the Governor following a recommendation from the Review Board to the Minister for a period not exceeding 14 days at any one time, conditionally or unconditionally, as determined by the Review Board: s 27, s 28.
Conditions imposed may include conditions relating to undergoing specific treatment, residing at a specified place and complying with lawful directions from a supervising officer: s 28(4).
In order to be detained at a 'declared place' the Minister for Disability Services must consent and a 'Disability Services' member of the Review Board must be present at the Review Board when the decision to detain him at a 'declared place' is made: s 24(5A), s 24(5B) and s 24(5C).
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).
A mentally impaired accused person who is subject to a custody order cannot be detained in a detention centre unless he is under 18 years of age.
Release
The other option to a custody order is to order that Mr DJM be unconditionally released.
The court is not empowered to make an order of conditional release with, for example, a condition that Mr DJM reside at some particular location and be subject to specific treatment or that he not have unsupervised contact with children. This deficiency in the Act has been the subject of comment in a number of Supreme Court decisions: The State of Western Australia v Tax [2010] WASC 208; The State of Western Australia v Lowick [2016] WASC 339; The State of Western Australia v Huggins [2017] WASC 243; The State of Western Australia v Truong [2017] WASC 289; The State of Western Australia v Chokolich [2018] WASC 220; The State of Western Australia v Stimpson[No 2] [2020] WASC 19.
I turn now to consider the s 19(5) factors.
The strength of the evidence
VRK is now 46 years of age and is the daughter of Mr DJM.
In relation to count 1 VRK says that when she was 9 years of age she was in the kitchen making a cup of tea when Mr DJM approached her and hugged her tightly and she felt him press his erect penis into her bottom over her clothing. She says that her mother was working at the time. She says that her brother and sister were present.
In relation to count 2 VRK says that when she was about 12 years of age she was in her bedroom. Her father, who had been drinking, came into the room and told her that he would touch her breasts but not her vagina. She says that he lifted her from the bed, kissed her breasts and then started sucking on her vagina making a comment that she had a lot of hair down there.
In relation to count 3 VRK says her father then started rubbing his penis against her vagina stimulating her clitoris and told her not to tell anybody otherwise he would kill himself. She said he was rubbing his penis against the inside of her vagina. She says this was the last occasion anything happened with her father.
SRR is currently 39 years of age and is Mr DJM's niece.
In relation to count 4 SRR says that she was around 14 years of age when she was at Mr DJM's residence when he kissed her on the lips and forced his tongue in her mouth.
In relation to count 5 SRR said she was aged around 14 years of age and sitting next to Mr DJM when he put his hand up her thigh under her underwear and started stroking her clitoris with his finger.
CJK is Mr DJM's granddaughter.
In relation to count 6 CJK says that when she was 13 years of age she went to get a drink from the fridge when her grandfather approached her, put his hand up her dress and put his finger into her vagina.
In relation to count 7 CJK says that on another occasion when she was standing next to her grandfather at the dining table he put his hand inside her pants and again inserted his finger into her vagina.
In each case the complainants' evidence is the only direct evidence that Mr DJM committed the alleged offences.
BKK says that in 1994 his wife VRK complained of sexual abuse by her father from a young age. In my opinion this evidence would not qualify as recent complaint evidence and would be inadmissible.
JI says that when she was 15 years of age SRR said her uncle had done something to her but did not tell her exactly what happened. She said she did not remember much about the conversation but SRR was upset at the time.
JI's evidence may qualify as recent complaint evidence in relation to SRR although it is somewhat difficult to ascertain the exact date of that conversation.
BDK says that in 2015 CJK made a complaint to him that her grandfather had touched her. In my view this would not qualify as recent complaint evidence.
The police evidence
A number of police officers gave evidence that they spoke to Mr DJM about the allegations. Mr DJM was interviewed on 28 April 2015 and denied that he had behaved in a sexually inappropriate manner towards any of the complainants. He was further interviewed on 3 July 2019 however the police officers, being aware that he had received legal advice and wished to exercise his right to silence, respected that right and other than advising him of the allegations, asked no further questions.
Other evidence
Other evidence is also provided in the brief such as birth certificates, designs of the house and the like.
The complainants are the only witnesses to each of the offences allegedly being committed against them, however, clearly the evidence of one complainant would be cross-admissible in relation to the other counts on the indictment. The prosecution case is strong whilst not overwhelming.
The alleged offences and alleged circumstances of their commission
The nature of the offending is sexual offending alleged against the daughter, niece and granddaughter of Mr DJM.
It is alleged that the seven offences occurred on six separate occasions and the offences involved cunnilingus, pressing an erect penis against the buttocks, penetration of the vagina by the penis, penetration of the vagina by the fingers and kissing on the lips.
The circumstances surrounding the offending are outlined in the summary of the complainants' evidence in relation to each count.
It is not disputed that the offences are serious and that if Mr DJM was convicted immediate imprisonment is likely to be the only appropriate disposition.
Mr DJM's character, antecedents, age, health and medical conditions
Mr DJM is currently 81 years of age and has no criminal convictions. He resides at a nursing home in Kelmscott and has done so for the last 18 months as his wife is unable to manage his serious physical problems and multiple care needs.
The offending is alleged to have occurred between 11 and 41 years ago.
Mr DJM suffers from a neurocognitive disorder commonly known as dementia of the Alzheimer's type which is permanent and progressive. Reversible cause dementia had been ruled out and he is unlikely to recover and more likely to continue to deteriorate.
As a result of his condition Mr DJM has impaired short-term memory function and an impaired long-term recall. The Montreal Cognitive Assessment Test produced a score of 15 and those with Alzheimer's score on average 16.2 points (a normal score is 26).
In addition Mr DJM suffers from Type 2 diabetes, gastroesophageal reflux and requires opioid analgesics for the chronic pain. He is in receipt of antidepressant medication and has been treated for chronic anxiety for a number of years. He suffers from hearing impairment and respiratory issues which leave him breathless and requires a supplementary oxygen supply.
Dr Patchett says that it is highly unlikely that Mr DJM will regain his health sufficiently to be able to return to independent living at his family home.
The public interest
Clearly the public interest in protecting young girls from harm is of paramount consideration particularly in light of Mr DJM's alleged offending against three victims.
The defence say the public interest is that people with mental illnesses should be provided with the best possible treatment and care and with the least restrictions of their freedom and their rights and dignity.
The public interest requires consideration of all factors, including the protection of the public from the risk of offending and the importance of mentally ill persons receiving proper treatment.
The public interest has also been taken to include consideration of the effect that a custody order will have on the individual, in particular the possibility of being detained in a prison: The State of Western Australia v Sanders [2012] WASC 409 [30].
In considering the public interest it is relevant to consider the effect of a custody order, the risk posed by the accused in committing further offences if released, the danger posed to the community by that risk and the dignity and rights of the accused and his rehabilitation: The State of Western Australia v S U[No 2] [2017] WADC 20 (Chief Judge Sleight).
The Act only permits the court to make a release order or a custody order. If a release order is made conditions cannot be imposed. A conditional release order which could provide the supervision in the community is not able to be made: The State of Western Australia v Tax.
If a custody order is made Mr DJM must be detained in an authorised hospital, a declared place, a detention centre or prison as determined by the Review Board until released by order of the government.
Mr DJM could not be detained at a detention centre because he is over 18 years of age.
In past cases the court have been advised that the Minster for Disability Services will not approve the placement in a declared place of a person charged with a crime committed against a child.
Mr DJM cannot be detained in an authorised hospital unless multiple criteria are met. That criteria includes that he has a mental illness requiring treatment, which treatment can only be provided satisfactorily in an authorised hospital and he does not have capacity to consent to that treatment. In addition, his mental illness must result in a significant risk to his or other person's health or safety or results in a significant risk of serious harm to himself or to another person.
Whilst these are decisions to be made by the Review Board, the court is entitled to consider the effect of a custody order which, in this case, would suggest that Mr DJM would be detained in a prison. The possibility that Mr DJM would be detained in a prison (The State of Western Australia v Sanders [30]) is a matter properly taken into account. There is nothing in Dr Patchett's reports that suggest Mr DJM's condition creates a significant risk to his or other person's health or safety or results in a significant risk of serious harm to himself or to another person.
Dr Patchett says that, as a result of his physical and mental condition, Mr DJM is not likely to have the opportunity to access family members unsupervised and it is unlikely to broaden his offending to strangers and non-family and he considers that Mr DJM is a low risk of sexual offending in the community.
On the Static-99R risk assessment tool Mr DJM is considered to be at a below average risk or at a very low risk of re-offending.
Mr DJM is now 81 years of age. He has resided in a nursing home for the last 18 months. He requires medical care and a supplementary supply of oxygen and is often wheelchair bound and does not represent a danger to anyone in the community.
He has no criminal convictions. He has a neurocognitive disorder otherwise known as dementia of the Alzheimer's type.
Two of the alleged victims have advised the Director of Public Prosecutions they do not wish a custody order to be made in respect of Mr DJM.
Conclusion
Mr DJM has a neurocognitive disorder commonly known as dementia of the Alzheimer's type. He has no criminal conviction and is 81 years of age.
He has resided in a nursing home for the last 18 months.
His neurocognitive decline is permanent and progressive. He is unlikely to recover and likely to continue to deteriorate and is not likely to regain health sufficiently to be able to return to independent living in the family home.
He is unlikely to re-offend and is considered to be at a low risk of sexual offending in the community.
He requires the support of nursing care and supplementary oxygen. He is restricted in his physical activity and mobility. In addition to dementia of the Alzheimer's type he suffers from Type 2 diabetes, gastroesophageal reflux, chronic pain, and receives medication for chronic pain, and depression and suffers from chronic anxiety.
I am satisfied that Mr DJM's risk of similar offending and his risk to the community is in the low range.
The factors that weigh in favour of a custody order are the number of victims, their ages when the alleged offending against them occurred, the length of time over which the offending occurred and the strength of the State's case.
However, I am not satisfied that a custody order is appropriate. The purpose of a custody order is not to punish an accused found unfit to be tried for an offence of which they have not been convicted. A custody order serves a protective purpose: The State of Western Australia v Stimpson[No 2]. That purpose being to protect the public.
I consider the State has a strong but not overwhelming case notwithstanding the seriousness of the offending and the circumstances of the offending against his daughter, granddaughter and niece.
I consider that the public interest in the humane treatment of an 81 year old who has no criminal convictions, suffers from dementia, who resides in a nursing home, requires medical care, a supplementary supply of oxygen, is often wheelchair bound, and who has been assessed as having a low risk of re-offending due to his mental and physical decline, is such that an unconditional release order should be made.
I am satisfied that Mr DJM does not represent a danger to anyone in the community.
I find that Mr DJM is not mentally fit to stand trial and I am satisfied that he will not become mentally fit to stand trial within six months.
I make an order quashing the indictment without deciding his guilt and release Mr DJM.
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 JANUARY 2021
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