The State of Western Australia v JLN [No 2]
[2019] WADC 144
•18 OCTOBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JLN [No 2] [2019] WADC 144
CORAM: PRIOR DCJ
HEARD: 30 AUGUST 2019
DELIVERED : 18 OCTOBER 2019
FILE NO/S: IND 1292 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JLN
Catchwords:
Criminal law - Criminal procedure - Fitness to stand trial - Release or custody order - Turns on own facts
Legislation:
Criminal Code (WA), s 320
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 3, s 19, s 24, s 25
Result:
Indictment quashed
Custody order made
Representation:
Counsel:
| The State of Western Australia | : | Mr N R Cogin |
| Accused | : | Ms E A Hamilton |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | T & L Lawyers |
Case(s) referred to in decision(s):
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 JLN [2019] WADC 107
The State of Western Australia v Lowick [2016] WASC 339
The State of Western Australia v Tax [2010] WASC 208
The State of Western Australia v Truong [2017] WASC 289
PRIOR DCJ:
Background
The accused JLN is charged on indictment 1292 of 2017 dated 30 November 2017 with one offence of indecent dealing with a child under the age of 13 and two offences of sexually penetrating a child under the age of 13 (the indictment).[1]
[1] Section 320(2) and s 320(4) of the Criminal Code.
The offences are alleged to involve the same child and occurred on two separate days between 9 December 2015 and 1 March 2016. The offences are alleged to have occurred at JLN's house in Moora. JLN is the child's uncle.
The particulars of the offences are JLN touched or penetrated the child's vagina with his finger. The child was aged 8 years old when the offences took place. The child was visiting JLN with her mother. When the offences occurred the child and JLN were in the lounge room of the house and the child's mother was in other parts of the house.[2]
[2] Police statement of material facts dated 2 February 2017.
JLN is presently in custody and has been since April 2018.
This matter was listed for a hearing on 18 June 2019 before me to determine whether JLN was not mentally fit to stand trial for the charges listed on the indictment. I reserved my decision on this question.
On 2 August 2019 I decided that JLN was not mentally fit to stand trial and will not become mentally fit to stand trial within the next six months.[3]
[3] The State of Western Australia v JLN [2019] WADC 107.
Once a judge is satisfied an accused will not become mentally fit to stand trial within six months, the judge must make an order quashing the indictment, or if there is no indictment, dismiss the charge and quash the committal without deciding the guilt of the accused and either release the accused or make a custody order: s 19(1) and s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act).
I now must determine what orders to make under s 19(1)(a) and s PP19(4) of the Act.
Legal principles
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 the considerations referred to in s 19(5). Those considerations are:
1.the strength of the evidence against the accused;
2.the nature of the alleged offence and alleged circumstances of its commission;
3.the accused's character, antecedents, age, health and mental condition; and
4.the public interest.
All the offences alleged on the indictment are all punishable by imprisonment and therefore a custody order can be made with respect to JLN: s 19(5) of the Act.
The public interest considerations pursuant to s 19(5)(d) of the Act require consideration of the accused's rehabilitation, the minimisation of the risk of re-offending and the protection of the public.[4] It is also in the public interest that people with mental illnesses are provided with the best possible treatment and care; and with the least restriction of their freedom and the least interference with their rights and dignity.[5]
[4] The State of Western Australia v TJH [2011] WADC 183 [74] (Keen DCJ).
[5] The State of Western Australia v Cipriano [2015] WADC 150 [38] (Sleight CJDC).
If a custody order is made, the accused person must be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board (the Board) established under pt 6 of the Act. Any such detention continues until the accused is released by order of the Governor: s 24(1) of the Act.
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated: s 24(2) of the Act. Section 24(3) of the Act also provides that a mentally impaired accused person should only be detained in an authorised hospital if the Board is satisfied that the accused has a mental illness requiring treatment, that because of the mental illness there is a significant risk to the health or safety of the accused or another person, the accused does not have the capacity to consent to treatment and treatment can only be provided satisfactorily in an authorised hospital.
Within five working days of a custody order being made the Board must review the case of the accused and determine the place where the accused is to be detained. Until the Board determines the place where the accused is to be detained, the accused is to be detained either in an authorised hospital or a prison or detention centre: s 25 of the Act.
A mentally impaired accused person cannot be detained in a detention centre unless the accused is under the age of 18: s 24(5) of the Act.
The only options under s 19(4) are unconditional release or a custody order. The court is not empowered to make an order conditionally releasing an accused person with, for example, a condition that the person reside in a secure hospital or undertake specified treatment. This deficiency in the Act has been the subject of comment in other cases.[6]
[6] 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 parties' positions
Counsel for each party in these proceedings provided both written and oral submissions.
Counsel for JLN submits that the accused should be released and suitable accommodation for him will be provided through the assistance of the Teem Treasure organisation.
The State submits that in the circumstances JLN should be subject to a custody order.
The evidence provided for the issue to be decided
The evidence which was relied upon by the parties for my determination pursuant to s 19 of the Act was the following:
(a)A report of Dr Mark Hall a forensic psychiatrist dated 21 May 2018.
(b)A report of Dr Hall dated 19 March 2019.
(c)The evidence of Dr Hall.
(d)A report of Dr Peter Wynn Owen a forensic psychiatrist dated 24 April 2018. When Dr Wynn Owen prepared this report he was under the understanding that the report had been requested for sentencing purposes in the District Court.
(e)An affidavit of Ms Yvonne Brown sworn 29 October 2018. Ms Brown is a manager at Teem Treasure, an organisation funded by the Disability Services Commission to provide services to people with intellectual disabilities.
(f)The evidence of Ms Brown.
(g)The prosecution brief which comprised of 80 pages including the transcript of the interview of JLN at Moora Police Station on 2 February 2018 (the interview).
(h)The DVD of the interview.
(i)The evidence of the child pre-recorded on 11 January 2018.
(j)JLN's previous record.
(k)The statement of material facts relating to offences JLN committed on 20 October 2017 and 30 October 2014.
(l)The statement of material facts and the transcript of visually recorded interview of a child in relation to an offence JLN allegedly committed on 26 April 2018. This is now an outstanding charge of common assault which was originally a charge of indecent dealing with a child under 13 years of age.
The evidence of Yvonne Brown
In Ms Brown's affidavit dated 29 October 2018 she deposed that Teem Treasure had supported JLN since 2008 when he was released from prison. Ms Brown had case managed him for a number of years. When JLN lived in Moora he had support from his family and was receiving monthly visits from Ms Brown. He was administering his own medication. Due to the nature of his physical and mental health issues he did not engage in structured activities in the community. Ms Brown described JLN as vulnerable and required encouragement to attend to his personal needs.
I note that it is alleged that JLN committed the offences alleged on the indictment whilst he was living in Moora. The accommodation where JLN was residing at in Moora had been obtained through Teem Treasure.
Ms Brown in her evidence stated that JLN will have accommodation available to him through Teem Treasure at a unit in Bedford if released from custody (the proposed premises). The premises comprise of four units. The front unit is occupied by a staff member. There is a staff member at the property 24 hours, 7 days a week. JLN would be sharing a unit with another adult male. The proposed premises would be available to JLN as long as he chose to stay there.
Ms Brown in her evidence acknowledged that at the proposed premises:
(i)Team Treasure cannot put any restrictions on JLN;
(ii)Team Treasure cannot stop anyone visiting JLN;
(iii)JLN will be able to come and go as he pleases and associate with whoever he wants;
(iv)it will be up to JLN to take his own medication;
(v)JLN will be able to consume alcohol or illicit drugs when outside the proposed premises;
(vi)Teem Treasure does not have authority to perform urinalysis;
(vii)it will be up to JLN whether he decides to engage in the programmes offered by Teem Treasure;
(viii)children are allowed on the proposed premises to visit occupants.
The evidence of Dr Mark Hall
Dr Hall stated that JLN's mental illness was treatable but he would always have some residual symptoms. His cognitive impairment relating to his head injury would not improve with treatment.
According to Dr Hall JLN had told him that he had been irregular in taking his medication. Dr Hall stated that if JLN did not take his medication he will become paranoid, hallucinate, become agitated and aroused. His impulses and social judgement will become further impaired. Consumption of alcohol, cannabis and methylamphetamine would further impair JLN's impulse control.
Dr Hall in his evidence identified JLN's risk factors for re‑offending as the following:
(i)There is persistence to JLN's offending behaviour.
(ii)The most recent allegations demonstrate an escalation in sexual offending by JLN as there was the use of some physical force.
(iii)JLN minimises sexual violence by denying the offending and minimising the seriousness of the impact on the victim.
(iv)JLN has a misogynistic attitude towards women and a sense of sexual entitlement.
(v)JLN has a psychotic disorder which if left untreated will produce a change in his social behaviour which could contribute to him re‑offending.
(vi)JLN has entrenched alcoholism.
(vii)JLN uses cannabis and methylamphetamine and has no insight into those problems.
(viii)JLN has problems with intimate relationships. He has had one significant relationship but it was marred by substance abuse and family violence.
(ix)JLN has problems with employment so a lack of structure or meaningful day contributes to the risk of re-offending.
(x)JLN has a history of non-sexual criminality which means he has an inability to conform to social norms and constrain his behaviour.
Dr Hall was of the opinion JLN was a high risk of committing a similar sexual offence in the future if there was no intervention whatsoever.
When Dr Hall was asked to address JLN's treatment problems in his evidence he said JLN was poorly adherent to taking the depo medication in the community. The consistency with JLN taking that form of medication would give him stability with respect to relapse of his psychotic symptoms. It also reduces his sex drive and sexual functioning.
Dr Hall described that JLN's cognitive impairment limits his suitability to participate in programmes targeting sexual offending.
Dr Hall stated that JLN's offending has been largely opportunistic therefore it was difficult to say what sort of restrictions could be imposed to limit the opportunity for JLN to re-offend.
Dr Hall described JLN's cognitive impairment as affecting his consequential thinking. As a result Dr Hall was of the opinion JLN will have more difficulty than someone without his impairment complying with rules imposed by an organisation due to his cognitive impairment and anti-social personality traits.
Dr Hall considered JLN needs to continue taking the depo medication and needs to have it on a regular basis. Dr Hall suggested it would be helpful if JLN were in a supervised facility where oral medication could be delivered to him. JLN needed stable accommodation that does not provide him with access to alcohol and does not allow him to be absent after hours. Dr Hall also considered that JLN needed to be compelled to remain at the accommodation.
Strength of the evidence
The prosecution brief contains the visually recorded interview of the child which occurred on 16 January 2017. The child's evidence was pre‑recorded at a special hearing on 11 January 2018. In this evidence the child refers to two specific days at JLN's house in Moora when JLN indecently dealt with her by touching her vagina with his finger and sexually penetrating her twice by digitally penetrating her vagina.
The child's mother has provided a statement which confirms JLN had the opportunity to commit the offences on the child on two days at his house in Moora. The child had complained to her about JLN touching her 'rude parts and feeling her up' whilst she was at JLN's house. The child's mother states the child was about 8 years old when this occurred.
JLN in his recorded interview with police officers denies committing the offences. He admits that the child had been with her mother to his house in Moora on two occasions. He admits the child was in the lounge room with him. On one of these occasions JLN states he was drinking cask wine and could not remember much.
In my view there is a reasonably strong prosecution case against JLN in relation to the three alleged offences contained on the indictment. The child gave a credible and consistent account of the alleged offending by JLN in her evidence. Immediate complaint was made by the child to her mother. Some significant admissions were made by JLN in his interview.
The nature and circumstances of the alleged offences
The three alleged offences contained on the indictment are serious offences. The maximum penalty for these offences are 10 or 20 years imprisonment.[7] If convicted of the alleged offences JLN would be likely to receive a sentence of immediate imprisonment.
[7] Section 320(2) and s 320(4) of the Criminal Code.
The child was aged 8 at the time of the alleged offending. She is the niece of JLN. The alleged offending occurred on two separate days at JLN's home in Moora, a home which had been arranged through Teem Treasure. JLN's family support is in Moora. The child's mother was present in the house on both days it is alleged the offending occurred.
Personal circumstances
JLN is now aged 43 years old. The extent of JLN's mental illness as described by the forensic psychiatrists Dr Hall and Dr Wynn Owen was referred to in my decision The State of Western Australia v JLN [2019] WADC 107 [35] – [41] and [54].
JLN has a previous record of consistently offending from 1986 to 2017. The offences on JLN's previous record are indicative of his previous history of alcohol and illicit drug abuse. Some of the offences include sexual behaviour by JLN. Offences include obscene act in public, indecent act with intent to insult or offend, trespass, possession of prohibited drugs, assaults, disorderly behaviour in public, stealing, burglary and breaches of bail or violence restraining orders. He has previously been sentenced to terms of imprisonment.
The offences of obscene acts in public and indecent act with intent to insult or offend any person which were committed in October 2014 and October 2017 in Perth and Moora involved JLN exposing his penis to adult females. They were both impulsive acts committed by JLN.
After the offences alleged on the present indictment before this Court occurred, JLN was charged with another separate offence of indecent dealing with a child under 13 years. This charge has now been amended to common assault. That alleged offence took place on 26 April 2018 in Moora whilst JLN was on bail for the alleged offences the subject of the indictment in this decision. The victim was a child aged 11 years old, not the child the subject of the alleged offences contained on the indictment. The offence is alleged to have occurred at the child's home.
The public interest
Counsel for JLN submitted the criteria of the public interest in releasing JLN is the key issue for determination in this matter.
There is a public interest that persons who are subject to mental illness are humanely treated and not detained indefinitely. I consider if JLN is not released, it is likely he will spend a considerable time in prison.
There is also a public interest in ensuring that JLN will not be a risk to the safety and welfare of others in particular children.
The evidence of Ms Brown indicates that if JLN was released from custody and lived at the unit Teem Treasure can provide in Bedford for him, there are very few limitations on his movements within the community. There is also nothing which will ensure JLN takes his medication or abstains from consuming alcohol or illicit drugs. Most if not all of JLN's family support are living in Moora.
The evidence of Dr Hall indicates that if JLN does not take his medication and/or consumes alcohol or illicit drugs his risk of re‑offending will increase.
Conclusion
Given the risk factors identified by Dr Hall which could cause JLN to re‑offend and the limitations on JLN's supervision under the accommodation proposed by Teem Treasure I consider JLN will be a significant risk of re‑offending if released from custody.
I am unable to place any conditions or restrictions on JLN if I was to make an order releasing JLN from custody. I cannot make a conditional release order providing for JLN's supervision within the community.
I consider the significant risk of JLN re-offending and the protection of the community requires that JLN be made the subject of a custody order. I am of the view if JLN is released he is unlikely to always comply with his treatment regime and he is likely to consume alcohol and illicit drugs. If this type of behaviour was to occur JLN is a risk of acting impulsively and re-offending.
Ultimately, I have decided the public interest would be best served if a custody order is imposed on JLN.
For these reasons, I make the following orders:
1.Indictment 1292 of 2017 is quashed.
2.A custody order in respect of JLN is made pursuant to s 19(4) of the Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior17 OCTOBER 2019
0
6
2