The State of Western Australia v Lowick - [2016] WASC 339

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- LOWICK [2016] WASC 339

CORAM: FIANNACA J

HEARD: 5 OCTOBER 2016

DELIVERED : 5 OCTOBER 2016

FILE NO/S: INS 107 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHERRY LOUISE LOWICK
Respondent

Catchwords:

Criminal law and procedure - Not fit to stand trial - Will not become mentally fit to stand trial within six months - Whether custody order or order for release ought be made - Mentally impaired accused - Turns on own facts

Legislation:

Criminal Code (WA), s 304(1)(b), s 444(1)(a)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 3, s 8, s 9, s 10(2), s 12, s 19, s 23, s 24, s 25, s 33, s 35, s 40, pt 5
Mental Health Act 2014 (WA), s 4

Result:

Indictment dated 30 September 2016 quashed
Custody order in respect of the accused

Category: B

Representation:

Counsel:

Applicant: Mr D A Jubb
Respondent: Mr R W Keeley

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Rod Keeley Legal

Cases referred to in judgment:

R v Gardiner (No 3) [2000] WADC 140; (2000) 24 SR (WA) 136
The State of Western Australia v Sanders [2012] WASC 409
The State of Western Australia v Tax [2010] WASC 208
FIANNACA J:
(This judgment was delivered extemporaneously on 5 October 2016 and has been edited from the transcript.)

Introduction

The accused was charged on an indictment dated 30 September 2016 with one count of criminal damage by fire,[1] also known as arson, and one count of unlawfully doing an act as a result of which the life, health or safety of another person was likely to be endangered.[2] Both charges arose from the same incident on 19 September 2015 at Esperance in which the accused is alleged to have set fire to a residential unit in which she was living with her son. The unit was owned by the Department of Housing and Works. The person whose life was endangered was the accused's son, who was inside the unit at the time.
[1] Criminal Code (WA) s 444(1)(a).
[2] Criminal Code s 304(1)(b).
The accused was initially charged by the police on 14 October 2015. Apart from two days in May 2016, when the accused was remanded in custody in error, she has been on bail in respect of the charges. However, since 11 November 2015, she has been hospitalised as an involuntary patient under the Mental Health Act 2014 (WA), initially at the Kalgoorlie Hospital Mental Health Ward, and then, from 28 November 2015, at Graylands Hospital in the Perth metropolitan area, where she has been treated in a secure ward. Her mental illness gave rise to the question of whether she was mentally fit to stand trial on the charges in the indictment. Psychiatric reports were requested to deal with that issue and, after the accused was committed to this court for trial, the matter was listed for a hearing to determine whether the accused was mentally fit to stand trial.
The hearing was conducted before me on 5 October 2016. At the conclusion of the hearing, I decided, pursuant to s 12 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act) that the accused was not mentally fit to stand trial. I was also satisfied, under s 19 of the Act, that the accused will not become mentally fit to stand trial within six months after my finding that she was not mentally fit. As a consequence of those findings, I made an order quashing the indictment and an order that the accused be kept in custody in accordance with pt 5 of the Act (a custody order). I gave brief reasons and said I would publish full reasons later. These are the reasons for my findings and the orders that I made.

The legislation

Section 9 of the Act defines the circumstances in which an accused is not mentally fit to stand trial for an offence. They are that the accused, because of mental impairment, 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 by s 8 to mean 'intellectual disability, mental illness, brain damage or senility'. 'Mental illness' means:
[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 12(1) of the Act provides:
The question of 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 the judicial officer thinks fit.
Section 10(2) of the Act provides that an accused found to be not mentally fit to stand trial is presumed to remain not mentally fit until the contrary is found.
Section 19(1) of the Act provides that if the judge who decides that an accused is not mentally fit to stand trial is satisfied that the accused will not become mentally fit to stand trial within six months after that finding, the judge must make an order under s 19(4).
An order under s 19(4) of the Act is an order quashing the indictment and either releasing the accused or making a custody order, subject to s 19(5).
Section 19(5) of the Act provides, relevantly, that a custody order must not be made unless the judge is satisfied that such an order is appropriate, having regard to:
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and the alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.

Evidence relevant to the inquiry

Reports were obtained from two psychiatrists, namely Dr Victoria Pascu and Dr Jacques Claassen. Both are consultant forensic psychiatrists. Dr Pascu is currently the Head of Clinical Services at Graylands Hospital. Dr Claassen works at the Frankland Centre, State Forensic Mental Health Service, which is within the same complex as Graylands Hospital.
Dr Pascu provided a report dated 25 April 2016, having interviewed the accused on 23 March 2016, but also having had oversight of her treatment at Graylands Hospital in her capacity as Head of Clinical Services. Dr Pascu also provided information orally (by telephone) at a hearing to consider bail for the accused on 26 May 2016. Aspects of what Dr Pascu said on that occasion were referred to during the hearing on 5 October 2016, and I consider it appropriate to take that information into account in the present proceedings. Finally, Dr Pascu provided further detailed information and opinions to the accused's counsel (by email) on 3 October 2016. The information and opinions elaborate on matters contained in her report of 25 April 2016 and discussed by her on 26 May 2016. The contents of the email were relied upon by the accused's counsel in these proceedings, and I consider it appropriate to take the information into account.
Dr Claassen provided a report dated 26 September 2016, having interviewed the accused for 20 minutes on 25 September 2016. The time was limited because the accused had been unsettled and agitated prior to Dr Claassen's arrival, she had a speech impediment 'which made it challenging to understand and thus comprehensively assess her' and she was 'unable to participate meaningfully'.[3] I note that Dr Pascu also mentioned that she found it difficult to understand the accused because of her speech difficulties due to the disease, and, therefore, the accused was a 'difficult historian'.[4]
[3] Dr Claassen's report dated 26 September 2016 [12] - [13].
[4] Dr Pascu's report dated 25 April 2016 [6].
Neither Dr Pascu nor Dr Claassen was called to give oral evidence in the proceedings. Although the accused's counsel sought, and was granted, an adjournment during the proceedings to ascertain whether Dr Pascu would be available to give oral evidence to deal with matters I had raised in discussion during counsel's submissions, Dr Pascu was not available and counsel did not seek any further adjournment, being content for me to deal with the issues on the information already available.

The issues

On the basis of the psychiatric reports and the additional information to which I have referred, the State conceded that:
(a)the accused suffers from a mental impairment;
(b)because of that mental impairment, the accused is not mentally fit to stand trial; and
(c)the accused will not become mentally fit to stand trial within the next six months.
In my opinion, those concessions were properly made. However, it will be necessary for me to outline the evidence in support of those conclusions.
The question about which there is a dispute between the parties is whether the consequential order should be an order releasing the accused or a custody order.

The accused suffers from a mental impairment

The accused suffers from Huntington's Disease. It is a genetic disorder. Dr Claassen describes it as a hereditary brain condition which progressively breaks down nerve cells. There is a history of the disease in the accused's family. Her mother died recently as a result of the disease.
The disease causes progressive impairment in the sufferer's physical and mental health in different ways: movement problems (including uncontrollable twitching, with eventual swallowing difficulties); cognitive problems (memory, attention and concentration, learning, speech); and emotional problems (aggression, apathy and psychiatric problems such as depression).[5]
[5] Dr Claassen's report dated 26 September 2016 [8].
In her report, Dr Pascu describes the symptoms of the disease in a similar manner to Dr Claassen, identifying the same three categories and elaborating as follows:[6]
The physical symptoms include twitching of different parts of the body; lack of coordination with a tendency to knock things over; walking difficulties; dance like or jerky movements of the arms and leg (chorea). The cognitive symptoms include: short term memory loss; difficulties making plans and concentrating. The emotional symptoms include depression; behavioural problems and mood swings with apathy and aggression.
[6] Dr Pascu's report dated 25 April 2016 [57].
Dr Claassen says that the disease is devastating, incurable and eventually fatal. That accords with Dr Pascu's formal diagnosis of 'Huntington's Disease ‑ progressive and terminal'.[7]
[7] Dr Pascu's report dated 25 April 2016 [52].
In terms of the specific impact of the disease on the accused's mental functioning, psychological testing of the accused on 7 October 2015 confirmed significant frontal lobe impairment, with 'deficits across a broad range of cognitive domains'.[8] Dr Pascu summarised the findings as follows:[9]
Ms Lowick's very low score confirmed the significant frontal lobe damage due to the dementing process secondary to the Huntington's Disease. There was evidence suggestive of particular deficits in memory encoding and recall and in executive function (tasks that involve the coordination of a number of different cognitive abilities).
[8] Dr Pascu's report dated 25 April 2016 [24].
[9] Dr Pascu's report dated 25 April 2016 [25].
Dr Claassen describes the impairment as a 'moderate neuro‑cognitive disorder with behavioural disturbance, as a consequence of Huntington's Disease'. The neuro‑cognitive disorder affects her capacity for complex attention, learning and memory, language and speech, executive function (planning, sequencing, organising of tasks), motor‑perceptual functioning and social cognition. According to Dr Claassen, although he categorises the disorder as moderate, it will continue to progress until it is severe. Dr Claassen is of the opinion that the presence of a moderate neuro‑cognitive disorder secondary to Huntington's Disease could come within the meaning of mental impairment within the Act.
I am of the opinion that it does.
There are two respects in which the impact on the accused's cognitive functioning may be regarded as a mental impairment. First, the information provided by both Dr Claassen and Dr Pascu supports the conclusion that the accused's intellectual functioning is now impaired to such an extent that it could properly be said she has an intellectual disability. Secondly, and, in any event, her condition may be regarded as a mental illness in that there is an underlying pathology, namely a neuro‑degenerative disorder that has caused frontal lobe impairment, resulting in an infirmity of the accused's mind, in that her mental faculties and functioning are impaired.

The accused is unfit to stand trial because of mental impairment

In her report, Dr Pascu expressed the opinion that the accused met all of the criteria in s 9 of the Act for a finding that she is not mentally fit to stand trial. Indeed, she described the accused's lack of understanding in a number of respects in emphatic terms. She said that the accused 'has no appreciation whatsoever' of the nature of the charges, 'no understanding whatsoever of the differences between the guilty and not guilty pleas' and 'no understanding at all of the process of a trial'.[10] However, Dr Pascu did not elaborate on the means by which she sought to ascertain the accused's level of understanding of those matters, so it is difficult to evaluate the basis upon which she arrived at those conclusions. In some respects, the same could be said of the findings outlined by Dr Claassen concerning matters relevant to the criteria in s 9 of the Act, which also described the accused as having no understanding of those matters, amounting to 'substantial impairment' of 'her understanding of her legal situation'.[11]
[10] Dr Pascu's report dated 25 April 2016 [62].
[11] See Dr Claassen's report dated 26 September 2016 [56].
The criteria are matters about which the court is required to reach conclusions. It is a process that would ordinarily be assisted by information as to the methodology used by the assessing psychiatrist to determine the accused's level of understanding, including some detail of what the accused said. I do not raise this point as a criticism, as elaboration could have been sought by way of oral evidence, but it highlights a limitation in reports of this kind. It is not readily apparent, for instance, to what extent the impression of a lack of understanding is due to an inability by the accused to articulate adequate responses, or whether any attempt was made to explain the various concepts or processes to the accused with the view to ascertaining if she could acquire and retain understanding that she is currently lacking.
I note that the accused acknowledged to both psychiatrists that she did light the fire, that she discovered her son was in the house, and that both left the house, so she has a memory of the event and is able to articulate what she recalls. She was also able to explain her motivation, in effect, that she wanted to die because she could not cope with the continuing deterioration of her condition. It seems that she also was able to appreciate the seriousness of her conduct and that the allegations include the risk of harm to her son, explaining that she did not intend to harm him or anyone else.
However, given Dr Pascu's and Dr Claassen's general findings about the accused's cognitive functioning, and certain specific explanations by Dr Claassen as to why the accused meets some of the criteria in s 9 of the Act, I am satisfied that there is a cogent basis for a number of the conclusions about those criteria. For instance, Dr Pascu refers to the evidence from the psychological testing in October 2015 that is suggestive of deficits in memory encoding and recall and in performing tasks that involve the coordination of a number of different cognitive abilities. Dr Claassen describes a number of aspects of the accused's behaviour during his interview with her that underpin his conclusions. Having referred to the accused's inability to remain on topic, he says:[12]
Her attention and concentration could not be adequately sustained to facilitate meaningful conversation regarding her situation. She was unable to recall my name by the end of the assessment but demonstrated awareness about her surroundings. Thus, significant cognitive deficits were evident to me, even in the absence of formal bedside cognitive testing.
[12] Dr Claassen's report dated 26 September 2016 [44].
On the basis of the results of the cognitive testing and the observations of both Dr Pascu and Dr Claassen, I am satisfied that, whether or not the accused's understanding of matters such as the nature of the charges, the entering of a plea, the plea options and the purpose of a trial could be facilitated by instruction, any improvement in her understanding would likely be temporary and, in any event, she would not be able to follow the course of a trial or defend the charges properly.[13] In particular, it is likely that she would not be able to properly understand the evidence or its implications, or to give instructions. Her cognitive deficits in terms of attention, concentration and memory encoding, together with her speech impairment, are of particular significance in that regard.
[13] Dr Pascu's report dated 25 April 2016 [62] and Dr Claassen's report dated 26 September 2016 [56].
I note also that, apart from identifying a lack of insight by the accused into 'her current legal predicament' (as it is described by Dr Claassen), both psychiatrists are of the opinion that she does not have proper insight into her disease, in terms of her need for ongoing support and care, and does not have the capacity to make decisions regarding her treatment. That, of course, is consistent with the psychiatrists' assessment of the accused's lack of capacity in respect of the court proceedings.
For the reasons I have outlined, I am satisfied the accused is not fit to stand trial.
Further, both psychiatrists have expressed the opinion that the accused's condition will continue to deteriorate, because the disease will continue to progress (it is incurable). Therefore, there will be no improvement in her cognitive functioning. Dr Pascu has said that the accused 'will remain not fit to stand trial for the foreseeable future',[14] and Dr Claassen has said the accused will never regain fitness to stand trial.[15]
[14] Dr Pascu's report dated 25 April 2016 [65].
[15] Dr Claassen's report dated 26 September 2016 [11].
I am satisfied, therefore, for the purposes of s 19(1) of the Act, that the accused will not become mentally fit to stand trial within the next six months.
Consequently, the indictment will be quashed.

Whether a custody order is appropriate

It is necessary then for me to decide which of the orders specified in s 19(4) of the Act I should make. That decision has been a difficult one, requiring me to balance the public interest in the accused receiving humane treatment for her devastating illness (in circumstances that will enhance her quality of life) against the public interest in protecting her and the community against the risk that she may commit a dangerous act harmful to herself or others in the community, if she were to be released unconditionally.[16]
[16] See The State of Western Australia v Sanders [2012] WASC 409 [30] (Jenkins J); R v Gardiner (No 3) [2000] WADC 140; (2000) 24 SR (WA) 136.
The Act does not allow for the conditional release of a mentally unfit accused. In The State of Western Australia v Tax, Martin CJ considered that to be a deficiency in the Act, in that the court was precluded from releasing a mentally unfit accused 'in terms which would enable the court to fashion conditions which would enhance the protection and safety of the community and perhaps enhance the treatment program that a mentally unfit accused person might need in order to be properly cared for'.[17] The deficiency remains, and the court continues to be presented with two 'stark alternatives', as Martin CJ described them. There is a proviso, in that a custody order must not be made unless the judge is satisfied that such an order is appropriate, having regard to the matters specified in s 19(5) of the Act.
[17] The State of Western Australia v Tax [2010] WASC 208 [18] (Martin CJ).

I now turn to those matters.

Strength of the evidence against the accused

The case against the accused is strong. That is conceded on her behalf. Although the evidence was not canvassed in any detail in the application, it is clear that the case is based on circumstantial evidence and admissions made by the accused to the police when she was interviewed on 14 October 2015. She admitted lighting the fire that caused the damage and that she was aware her son was in the house at the time.

The nature of the alleged offence and the alleged circumstances of its commission

The alleged facts of the offences are as follows.
The accused lived with her 18‑year‑old son in a unit in Esperance. Around 10.00 am on 19 September 2015, she was home and in her bedroom. Her son was also home and in his bedroom.
The accused set fire to her bed. The fire took hold and quickly spread. She left the house, without alerting her son to the fire. Her son opened his bedroom door and smelled smoke. He saw that the door to his mother's bedroom was turning black. He forced the door open and was met with smoke and heat. He ran from the house to safety. He saw that the accused was already standing outside the house.
When interviewed, the accused said that she wanted to kill herself. She also said she was intoxicated with alcohol, cannabis and amphetamine.
The fire caused significant damage to the accused's bedroom. It also resulted in heat and smoke damage to adjoining rooms. The estimated cost of the damage to the unit was $200,000. The unit was owned by the Department of Housing and Works. There were adjoining residential properties. The potential for harm to other property and to people was significant. It was only through good fortune that no one was physically harmed.
As for the offence under Criminal Code s 304(1)(b), the accused removed herself from the home without alerting her son of the danger she had created. Her son's life was in very real danger.
It is obvious from the above outline that both of the alleged offences and the circumstances in which they were committed were of a very serious nature. While Dr Pascu has pointed out that the accused's cognitive functioning was already significantly impaired because of the progression of her disease at the time of the alleged offences, it is apparent from her admissions that she was aware of what she was doing, and her conduct was purposeful. Of course, to the extent that her cognitive impairment may have contributed to her actions (in setting the fire) and omissions (in not alerting her son), it highlights the risk the accused may pose to the community if she were released.

The accused's character, antecedents, age, health and mental condition

The accused is 35 years old. She has three children, aged 18, 14 and 4. They reside with the accused's ex-partner, with whom she previously had a volatile relationship. She has remained in contact with her children and with her father, who is very supportive and appeared with the accused by video link from Graylands Hospital at the hearing of the application.
She has consistently reported being distressed at being far away from her family in Esperance, and that has been recognised by her treating team as adversely affecting her stability and quality of life. While she has been on bail, although she has been an involuntary patient at Graylands Hospital, she has been permitted to visit her family on at least one occasion.
As I mentioned earlier, the accused's mother died as a result of Huntington's Disease earlier this year.
The accused has a criminal record. It is largely for traffic offences, including drink driving offences, but there are also convictions for breaches of court‑imposed orders, namely a conditional release order in 2004, a violence restraining order in 2008, and breaches of bail undertakings in 2006, 2009 and 2011. The most recent conviction was in August 2015 for an offence of stealing, for which the accused was fined $150.
The record does not raise any particular concern that the accused might offend in the future in a dangerous manner similar to the offences alleged in the indictment, but the disobedience of court orders, breaches of undertakings and her preparedness to drive in the past while under the influence of alcohol and when suspended are of concern if she were to be released unconditionally.
On two occasions in 2009 and 2011, the accused was sentenced to a term of suspended imprisonment for driving while disqualified from holding a licence. I take into account that the accused's physical condition has deteriorated since then. There is no suggestion that she would have access to a vehicle if she were ever released, but her antecedents (before her diagnosis of Huntington's Disease) disclose a propensity for risky behaviour. That propensity and the potential risk of harm have been magnified as a result of her impaired judgment and lack of impulse control due to her disease.
I will return to the question of risk of harm when dealing with the public interest.
The accused has a history of childhood trauma. She was also the victim of domestic violence as an adult. In the past, she has received psychiatric treatment for mood‑related issues, namely depression and a panic disorder. However, her engagement with mental health services and support agencies was inconsistent, and it was difficult, therefore, to provide community-based assistance to her.
Dr Claassen and Dr Pascu have reported that the accused's first official contact with mental health services was in early 2013. Attempts were made to provide appropriate assessment and treatment through specialised psychiatric and neurological services, but she cancelled scheduled appointment times.
The diagnosis of Huntington's Disease was confirmed by Professor Lee, a neuropsychiatrist at the Neurosciences Unit, in June 2013. The accused was referred to mental health services in Esperance in July 2013 for the purpose of obtaining counselling for her anxiety. She was subsequently advised that she had tested positive for Huntington's Disease and was referred for neurological review, as well as support in relation to her diet and speech. It appears that it was in the context of receiving community-based assistance that the accused was provided with a Department of Housing and Works home.
In January 2014, Professor Lee advised the accused's general practitioner of the need for an application to the State Administrative Tribunal for a guardianship order. Applications were also lodged with the Disability Services Commission to obtain further support for the accused.
In October 2014, various agencies expressed their concern regarding the accused's health and safety, referring to her chaotic lifestyle and increased substance consumption. The accused has had a history of alcohol abuse and using cannabis and methamphetamine.
On 23 October 2014, the accused was found disorientated in Perth and was taken to Swan Hospital. On 25 November 2014, she took a significant overdose of antidepressant medication, requiring admission to the Intensive Care Unit at Royal Perth Hospital. She was then admitted to the mental health unit of the hospital and was subsequently discharged to receive psychiatric care in the community and a follow‑up with local mental health services.
I have not been provided with information about the accused's treatment and behaviour from that time until 19 September 2015, when she is alleged to have committed the offences. However, it is clear on the evidence that her condition, resulting from Huntington's Disease, continued to deteriorate, and that she felt she did not have anything to live for, because (as she informed Dr Pascu) 'she was advised that her illness is terminal within the next 6 to 12 months'.[18]
[18] Dr Pascu's report dated 25 April 2016 [7].
After the alleged offending, the accused was admitted to Esperance General Hospital because of her disorganised behaviour. She was subsequently transferred to the Kalgoorlie General Hospital's mental health ward for psychiatric assessment and treatment, and it was there that the cognitive testing took place that I referred to previously. It was noted that the accused showed apathy, emotional detachment and lack of insight into the degree of her cognitive difficulties. Over the course of her stay at Kalgoorlie Hospital, the accused was disorganised in her thinking and was described as vulnerable to exploitation from others. She engaged in multiple acts of self‑harm and aggressive behaviour, consisting of throwing and damaging furniture and assaulting staff.
After being granted bail, the accused was discharged from hospital on 2 November 2015. She was readmitted as an involuntary patient under the Mental Health Act 2014 on 11 November 2011 because she was expressing suicidal ideation after being evicted from her ex-partner's house and made an apparent attempt to end her life by jumping in front of moving traffic. Management of the accused during her second admission to Kalgoorlie Hospital has been described as challenging due to her further attempts at self‑harm and her continuing aggressive behaviour.
An application was made to the State Administrative Tribunal for administration and guardianship orders in respect of the accused, and those orders were made on 13 November 2013. The guardianship order followed findings by the Tribunal that the accused is incapable of looking after her own health and safety, is unable to make reasonable judgements in respect of matters relating to her person, and is in need of oversight care or control in the interests of the her own health and safety.
According to Dr Pascu, Kalgoorlie Hospital did not have a psychiatric unit equipped to manage the accused's behaviour, so she was transferred to Graylands Hospital on 28 November 2015. There, she has been residing in a secure ward, where she has received extensive assessment and treatment. This includes a regimen of psychotropic medication (which has been under regular review) aimed at reducing her symptoms secondary to her Huntington's Disease, and her depression (which has been largely due to her separation from her family). A behavioural management plan has been designed by the treating team in an attempt to appropriately manage her behavioural difficulties.
In her report of 25 April 2016, Dr Pascu said that, during her stay in Graylands Hospital, the accused has shown improvement 'in all areas of her functioning with less verbal and physical aggressive outburst in the last few weeks'.[19] Dr Pascu described the accused as remaining 'warm and reactive' and experiencing 'no biological indicators of a major depressive or other psychiatric illness'.[20] However, Dr Pascu noted that the accused remained unable to perform 'forward planning' and was 'at risk of wandering if not in a secure environment or not closely supervised'.[21] She was of the opinion that the accused remains liable to exploitation and that her impaired forward planning left her at risk of self‑neglect or misadventure. While the accused was compliant with her medication, she lacked the cognitive capacity to manage the medication herself.
[19] Dr Pascu's report dated 25 April 2016 [36].
[20] Dr Pascu's report dated 25 April 2016 [36].
[21] Dr Pascu's report dated 25 April 2016 [37].
Dr Claassen is of the opinion that the accused's disease has progressed to the point of 'obvious and significant physical and cognitive issues rendering her incapable of independent living and unsupported decision-making outside of a specialised supportive environment'.[22] Those factors, together with her suicidal ideation and aggressive behaviour inform his assessment (which is consistent with Dr Pascu's assessment) that the accused is at risk of harm across a number of domains.[23]
[22] Dr Claassen's report dated 26 September 2016 [9].
[23] Dr Claassen's report dated 26 September 2016 [53].
When she provided information to the court by telephone on 26 May 2016, Dr Pascu explained that the accused's mental state fluctuates a lot. Her tolerance and threshold for frustration are very low:[24]
She can be quite pleasant, and then out of the blue, for whatever reason that's ‑ anything that happens in the ward from other patients or in the environment she may become quite behaviourally disturbed. She tends sometimes to hit out towards other patients and staff, so that's why the management plan is trying to maintain her in a safe place of the ward, sometimes in the courtyard. She's in a locked ward, and she has always been in a locked ward.
[24] ts 21 (26 May 2016).
Dr Pascu went on to explain that, ideally, the accused should be placed in a 'Huntington's-specific' nursing home, but, apart from the fact that admission to such a home depends on the availability of a place, Dr Pascu considers that such a home would have difficulty accepting her, because her behaviour is not sufficiently 'contained' to make her placement appropriate.[25] Similarly, consideration has been given to 'dementia-specific' (not Huntington's‑specific) nursing homes, but, again, apart from the fact that she does not fulfil the usual criteria for admission to such a home because of her age (which is an obstacle that potentially could be overcome), it was thought the accused would not be ready for such a place because of her erratic behaviour.[26] So, at that time, Dr Pascu's opinion was that, while she did not consider it to be the 'right place' for the accused, there was no suitable place for the accused other than Graylands Hospital. The accused had contact with her family in the hospital grounds and had been allowed to spend some days at home with her children.
[25] ts 20 (26 May 2016).
[26] ts 21 (26 May 2016).
Dr Pascu expressed concerns about the ability to manage the accused if she was in a prison, in respect of both her physical and behavioural problems. If a custody order were to be made, and if the accused could not stay within Graylands Hospital (a matter I will return to later), it would be preferable for her to be in the Frankland Centre, rather than in a prison. The Frankland Centre is on the same grounds as Graylands Hospital, and, therefore, on the same grounds as the Neurosciences Unit where there is a neuropsychiatrist who has expertise in managing patients with Huntington's Disease. Dr Pascu considered Graylands Hospital to be a better place for the accused from an environmental perspective. Because the Frankland Centre is a smaller unit, there would be greater concerns about the risk to her from other inpatients who might react to her disinhibited behaviour and 'low frustration tolerance'.

The public interest

Consideration of the public interest requires an assessment to be made by the Court of the risk of harm to the community, as well as the risk of harm to the accused herself. As I have already mentioned, it also requires the court to take into account the need for proper medical and humanitarian treatment of the mentally ill.
The public interest factors that weigh in favour of a custody order are: the nature of the alleged offences; the circumstances of the alleged offending; the instances of self-harm and aggression while the accused has been hospitalised; the accused's apparent attempt at suicide by jumping in front of moving vehicles within one day of her first release from Kalgoorlie Hospital in November 2015; her inability to perform 'forward planning' or manage herself; her history of substance abuse; and her continuing suicidal ideation. The fact that she has reached a level of stability, according to Dr Pascu, while she has been in a secure environment in which she has been able to receive appropriate treatment also weighs in favour of ensuring that the accused remains in a secure facility until it is determined that her release into the community can be achieved in circumstances in which the risk of harm to the community and to the accused can be adequately managed by the imposition of conditions, if necessary.
Both psychiatrists have expressed the opinion that the accused's condition will worsen over time and that, as a consequence, her cognition, emotional state and behaviour will likely deteriorate.
Dr Claassen has expressed the view that the accused is 'at risk of harm across a number of domains':[27]
She continues to experience and report suicidal ideation on a regular basis. She continues to lash out physically at those around her who attempt to support and treat her ‑ this is a consequence of frustration and lack of impulse control secondary to her neurocognitive disorder.
[27] Dr Claassen's report dated 26 September 2016 [53].
Although she has not been convicted of the offences with which she was charged, the accused has admitted lighting the fire and that her motivation was to end her life. That motivation remains. She told Dr Claassen that she did not want to be alive because of the terminal nature of her illness. Given her impaired judgment, her lack of impulse control and her motivation, the risk that the accused will do something that would put the lives or safety of others at risk, as well as her own, is a significant factor in determining whether to release her unconditionally or make a custody order.
It was submitted, on behalf of the accused, that the nature of her disease and its effect on her is such that 'any inclination to commit further offences is absent and accordingly the chances of committing further offences is very low'. There is no evidence to that effect. In fact, as I have outlined, the evidence is that the accused has, from time to time, demonstrated aggressive behaviour.
Both psychiatrists refer to the accused's gait being affected by her disease, but she appears to have been capable of attending the interviews without physical assistance, and there is no evidence of physical incapacity that would prevent her from committing further offences at this time.
It was also submitted, on behalf of the accused, that her 'available lifespan is limited by the nature of the disease', and this should be regarded as a public interest factor in favour of release. While, sadly, it appears that the premise is correct, there is no evidence as to what the accused's lifespan is likely to be. Further, according to the accused's admission, it was the diagnosis that she had a relatively short time to live that caused her to want to take her own life by lighting the fire. In my opinion, the tragic expectation of a reduced lifespan does not justify the making of an order which would allow the immediate release of the accused when weighed against the other factors I have referred to. It will no doubt be a consideration when the accused's custody comes to be reviewed under the Act.
The real gravamen of the submission made on behalf of the accused is that she is, and will continue to be for an indefinite period, an involuntary patient because of her cognitive impairment and her risk of harm to herself and the community, so unconditional release under s 19(4) of the Act will not result in her release from a secure environment while she remains a danger. In fact, the evidence is to the effect that the accused's condition is unlikely to improve, so that she is likely to remain in a secure setting as an involuntary patient.
Dr Pascu's email of 3 October 2016 to the accused's counsel appears to equivocate about the issue. On the one hand, she suggests that:[28]
With ongoing supervision and nursing support within an approved facility, a health facility close to her family or a Huntington's‑specific residential facility … [the accused's] risk to herself and others can be contained.
[28] Dr Pascu's email of 3 October 2016 to Mr Keeley.
She further leaves open the possibility of a move to such a facility by stating that:[29]
When [the accused's] mental state and more importantly her behaviour improves sufficiently for her to be managed in the community in a suitable, supported, needs appropriate environment … appropriate discharge planning needs to occur.
[29] Dr Pascu's email of 3 October 2016 to Mr Keeley.

On the other hand, Dr Pascu concludes her email by saying:[30]
As mentioned in my previous report I do believe that given the progressive nature of her neurodegenerative disorder Ms Lowick may not be placed in the community which means that she would remain in an authorised hospital indefinitely.
[30] Dr Pascu's email of 3 October 2016 to Mr Keeley.
As I outlined earlier, Dr Pascu's report suggested that the accused would not be suitable for admission to a 'Huntigton's-specific' nursing home at the time of the report because of her behavioural problems.
The recommendations of Dr Pascu and Dr Claassen are to the effect that the decision as to where the accused should be treated should be left to her treating psychiatrist, who will have regard to a multitude of factors, including her level of risk to others in the community. Unconditional release of the accused by the court would provide her treating team with flexibility in her management, enabling them to achieve the most humanitarian outcome of placement in a facility close to her home and family if it was considered that her behaviour could be properly managed. However, there was no evidence in the hearing of what might be a suitable facility, or what degree of security it would provide to the community if, as desired, it was less restrictive than the accused's current treatment setting.
In summary, the submission made on behalf of the accused is that, given her current status as an involuntary patient and the security that it provides, there is no public interest in the Court making a custody order.
In my opinion, notwithstanding the recommendations of both Dr Pascu and Dr Claassen, the need for a custody order to ensure the protection of the accused and the community from the risk of harm that she poses at present outweighs the desirability for flexibility to achieve what is perceived to be the best outcome for her from a humanitarian perspective. I am not satisfied that adequate measures could be put in place to safeguard against the risk of harm presented by the accused to herself and the community, if she were to be released unconditionally.
Once a custody order is made, the treatment of the accused under that order and her eventual release from custody are governed by the provisions of pt 5 of the Act. The release of a mentally impaired accused who is subject to a custody order is at the discretion of the Governor.[31] The Mentally Impaired Accused Review Board must provide a report to the responsible Minister about a mentally impaired accused within eight weeks of the making of a custody order, and then as required, but at least once in every year.[32] The report must recommend to the Minister whether the Governor should be advised to release the accused and, if so, on what conditions, if any.[33] The ability to recommend conditions provides an important measure for safeguarding against the kind of risks to which I have referred.
[31] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 35.
[32] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 33.
[33] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 33.
For the purpose of reporting to the Minister, the Board may require the accused to be examined by a psychiatrist or other appropriate expert, and may require a report from a psychiatrist or other appropriate expert.[34] A risk assessment made for that purpose would enable suitable conditions to be fashioned that are relevant to the accused's situation at that point in time. If a placement becomes available in a facility considered to be suitable, the humanitarian considerations to which I have referred can (and no doubt will) be raised in a report by the accused's treating psychiatrist in the course of such a review.
[34] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 40.

Conclusion

I am satisfied that, having regard to the matters set out in s 19(5) of the Act, a custody order is appropriate.
I am of the view that the question of whether the risk of harm posed by the accused can be properly managed by her release is one that is best left to the operation of the systems in place in respect of a custody order under the Act, as I have outlined. Those systems allow for conditional release, so that any conditions that are considered necessary to protect her and the community, while improving her quality of life, can be recommended to the Governor, if the Governor is advised to release the accused.

Where the accused should be detained

As both Dr Pascu and Dr Claassen expressed concerns about the accused being detained in a prison, or even in a facility such as the Frankland Centre, I consider it appropriate to make the following observations.
The place in which a mentally impaired accused, in respect of whom a custody order has been made, is to be detained is to be determined in accordance with div 2 of pt 5 of the Act. Section 24(1) provides that such an accused is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Board, until released by an order of the Governor. Section 24(2) provides that the accused is not to be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated.
'Declared place', 'detention centre' and 'prison' are defined in s 23 of the Act. 'Authorised hospital' is defined in s 3 of the Act to have the meaning given in s 4 of the Mental Health Act.
It is sufficient for present purposes to say that both Graylands Hospital and the Frankland Centre are authorised hospitals. The accused has been held in Graylands Hospital as an involuntary inpatient (inpatient) under the Mental Health Act on the basis that it is an authorised hospital.
Information provided by Dr Pascu in the proceedings raises an issue under s 24(2) of the Act, which requires that the accused have a treatable mental illness before she can be detained in an authorised hospital. In her report, Dr Pascu said that the accused does not have 'a major psychiatric illness that could be treated'.[35] She repeated this when she provided further information orally on 26 May 2016.
[35] Dr Pascu's report dated 25 April 2016 [60].
However, as I have determined, the accused's cognitive impairment, secondary to Huntington's Disease, is a mental illness for the purposes of the Act, and it is apparent from the reports of both Dr Pascu and Dr Claassen that some of the accused's symptoms can be, and have been, treated by a regimen of medication and other therapeutic interventions. Therefore, when Dr Pascu indicated that the accused does not have a treatable psychiatric illness, I understood her to mean that the accused's underlying pathology cannot be treated. There is no cure for the accused's disease, and her cognitive functioning is likely to continue to deteriorate. However, she can be, and is being, treated. Therefore, in my opinion, she can be detained in an authorised hospital under the custody order.
Further, the accused would appear to meet the requirements under s 24(3) of which the Board must be satisfied before the accused can be detained in an authorised hospital, being that:
(a)the accused has a mental illness requiring treatment;
(b)because of the mental illness, there is ‑
(i)a significant risk to the health or safety of the accused or to the safety of another person; or
(ii)a significant risk of serious harm to the accused or to another person;
and
(c)the accused does not have the capacity to consent to treatment; and
(d)the treatment can only be provided satisfactorily in an authorised hospital.
Section 25(1) of the Act provides that, within five working days, after a custody order is made, the Board is to review the accused's case and, subject to s 24, determine the place where the accused is to be detained. The Board can subsequently determine that the accused is to be detained in a different place, again subject to s 24.
I note that s 25(2)(a) provides that, until the Board determines the place where the accused is to be detained, then, if when the custody order is made the accused is in an authorised hospital having been admitted, whether as an involuntary inpatient or otherwise, the accused is to be detained in an authorised hospital. In any other case, the accused is to be detained in a prison or detention centre.[36] In the present case, the accused came within s 25(2)(a).
[36]Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 25(2)(b).
It is the Court's expectation, in light of all of the information presented in the hearing, that the accused will be held in an authorised hospital if that is at all practically possible. The evidence supports the conclusion that to hold the accused in either a prison or Frankland Centre (notwithstanding it is an authorised hospital) is likely to cause her distress of a kind that may exacerbate her condition. In those circumstances, while the custody order serves the purpose of protecting the community and the accused, humanitarian considerations should inform the determination of the place of custody, so that the accused is detained in the least restrictive facility that circumstances will allow. However, it is, of course, a matter for the Board on advice from those who are responsible for the administration of Graylands Hospital, and the treatment of the accused, to make the appropriate determination in light of all relevant considerations.

An issue concerning the status of a mentally unfit accused under pt 5 of the Act

Finally, I make the following observations in light of comments made by Dr Pascu in her email to the accused's counsel, which suggested that there may be a view at Graylands Hospital that an accused who is found to be mentally unfit to stand trial and is ordered to be detained under pt 5 of the Act is to be regarded as someone who remains subject to criminal charges and whose status requires that they be detained either in a prison or in a secure facility, such as the Frankland Centre. There is no basis for that view in the Act. Once an accused is found to be unfit to stand trial, the consequence is that the charges are dismissed, if the accused has not yet been indicted for the alleged offences, or, where the accused is before the court on an indictment, the indictment is quashed. Either way, the accused does not remain charged with offences.
Further, and self-evidently, she is not to be regarded as a convicted offender. The fact that the accused was charged and the nature and circumstances of the alleged offences are relevant considerations in determining whether to release the accused or make a custody order, but it is clear that a mentally impaired accused who is found to be unfit to stand trial is to be dealt with in accordance with pt 5 of the Act, and may be held in an authorised hospital.

Orders

The indictment is quashed.
I make a custody order in respect of the accused.