The State of Western Australia v Mje
[2019] WADC 83
•21 JUNE 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MJE [2019] WADC 83
CORAM: PRIOR DCJ
HEARD: 17 JUNE 2019
DELIVERED : 21 JUNE 2019
FILE NO/S: IND 1885 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MJE
Catchwords:
Criminal law - Criminal procedure - Fitness to stand trial - Whether release order or custody order should be made - Turns on own facts
Legislation:
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Result:
Accused declared unfit to stand trial
Indictment quashed
Release order made
Representation:
Counsel:
| The State of Western Australia | : | Ms K A Gregory |
| Accused | : | Ms E de Koning |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Mental Health Law Centre |
Case(s) referred to in decision(s):
The State of Western Australia v Cipriano [2015] WADC 150
The State of Western Australia v Huggins [2017] WASC 243
The State of Western Australia v Tax [2010] WASC 208
The State of Western Australia v TJH [2011] WADC 183
PRIOR DCJ:
Introduction
MJE was charged by indictment 1885 of 2018 dated 17 January 2019 with one offence of indecent dealing with a child under the age of 13 years by licking the child's penis.
The particulars of the alleged offence were that on 5 February 2018 when the accused was 23 years old he committed the alleged offence on his five-year-old nephew whilst he was at the home of his mother SAE at Port Kennedy.[1]
[1] Amended Statement of Material Facts dated 17 January 2019.
MJE has been the subject of bail which included protective conditions relating to the child complainant and supervision by his mother or a nominated carer since 9 February 2018 when he was charged with the alleged offence.
MJE has an established diagnosis of Autism Spectrum Disorder with intellectual disability. He presently lives with his mother in Port Kennedy. MJE's mother was appointed guardian of MJE by an order made by the State Administrative Tribunal on 11 August 2017.
The indictment came before me on 17 June 2019 for a hearing to be conducted to determine whether MJE was fit to stand trial. The relevant legislation that applies to this application is the Criminal Law (Mentally Impaired Accused) Act 1996 (the Act). The procedure for an application of this type is summarised by Hall J in The State of Western Australia v Huggins [2017] WASC 243 [4] – [15].
The evidence
At that hearing I received the following exhibits:
1.A psychiatric report of Dr Adam Brett, consultant psychiatrist dated 6 May 2018 – exhibit 1.
2.A psychiatric report of Dr Gosia Wojnarowska, consultant psychiatrist dated 10 January 2019 – exhibit 2.
3.MJE's National Disability Insurance Agency Plan approved on 17 October 2018 – exhibit 3.
4.MJE's present Weekly Schedule of activities – exhibit 4.
5.A letter from the Administrative Assistant of the Sexuality Education Counselling and Consultancy Agency (SECCA) dated 11 October 2018 to Barbara Dueckershoff – exhibit 5.
In addition to the documentary evidence I have referred to I also heard testimony from Mrs Dueckershoff and considered the prosecution brief relating to the indictment.
Mrs Dueckershoff has known MJE for all his life. She has acted as an advocate for MJE. She has made an urgent application to the State Administrative Tribunal to become a co-guardian of MJE because MJE's mother is now a widow.
Mrs Dueckershoff lives a short distance from MJE and his mother in the suburb of Cooloongup. Once she has been appointed co‑guardian of MJE she plans to see him on a fortnightly basis. Mrs Dueckershoff was generally aware of MJE's Weekly Schedule as set out in exhibit 4.
In the reports of psychiatrists Dr Brett and Dr Wojnarowska – exhibits 1 and 2, they both concluded that MJE suffers from a mental illness as defined in s 8 of the Act.
Mental illness is included in the definition of a mental impairment in s 8 of the Act. Pursuant to s 9 of the Act an accused is not mentally fit to stand trial for an offence if because of the mental impairment the accused is unable to meet any of the eight criteria in s 9(a) – s 9(g) of the Act.
Both psychiatrists were of the opinion in their reports that MJE was not fit to stand trial as he was unable to meet any of the criteria as set out in s 9(a) – s 9(g) of the Act.
Both psychiatrists were also of the opinion in their reports that MJE's impairment was severe and he would not become fit to stand trial in the next six months.
The parties' submissions
Counsel for MJE submitted that due to the evidence provided in the two psychiatric reports that MJE was not fit to stand trial and will not be so for the next six months.
Based on the evidence counsel for the State advised that it was not in dispute that MJE was not fit to stand trial nor will he be in the next six months.
Is the accused mentally fit to stand trial?
Having heard and read the submissions from both counsel and in consideration of the evidence contained in the reports of the psychiatrists Dr Brett and Dr Wojnarowska I was satisfied on the balance of probabilities that MJE is not mentally fit to stand trial nor will he be within six months of this finding.[2]
[2] The Act s 12 and s 16.
As a result of my finding made on 17 June 2019 I made an order that MJE is not mentally fit to stand trial in relation to the charge the subject of indictment 1885 of 2018 within the next six months.
Should the accused be released or subject to a custody order?
After hearing the evidence of Mrs Dueckershoff and further submissions from counsel as to the question to be addressed pursuant to s 19(4) of the Act I reserved my decision to today as to whether MJE should be released or be subject to a custody order.
A custody order could be made in respect of MJE because the statutory penalty for the alleged offence the subject of the count on the indictment includes imprisonment.[3]
[3] The Act s 19(5) and Criminal Code s 321(8).
Section 19(5) of the Act requires a judge not to make a custody order in respect of an accused person unless they are satisfied it is appropriate having regard to the criteria set out in s 19(5)(a) ‑ s 19(5)(d) 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).
At the hearing of the application on 17 June 2019 counsel for the State conceded that a custody order should not be made because on the evidence that had been provided to the court, the risk which MJE could create in the community if he was released could be managed. I take this concession into account when considering what order I shall make pursuant to s 19(4) of the Act.
Counsel for MJE submitted that on all the evidence I should make an order that MJE be released.
Upon consideration of all the evidence I am satisfied it is appropriate to now make an order that MJE be released pursuant to s 19(4)(a) of the Act. I have come to this conclusion for the following reasons:
(a)Although the prosecution case was reasonably strong due to recent complaint evidence and an implied admission by MJE, the only eye witness for the prosecution is the child complainant now aged six.
To convict MJE a jury would need to accept the evidence of the child complainant.
(b)The prosecution case as identified in the prosecution brief indicates the alleged offence was a one off unpremeditated act.
(c)MJE is 24 years old with no previous record.
(d)Other than the alleged facts the subject of the charge on the indictment, there is no evidence that MJE's mental illness would cause him to behave in a sexually deviant way.
(e)I am satisfied on all the evidence that the alleged behaviour of MJE the subject of the charge reflects inappropriate behaviour on his behalf but not a sexual intent or sexual interest in children.
(f)By attending counselling at SECCA any inappropriate behaviour by MJE may be addressed. I note this service was recommended by Dr Brett due to his experience with other patients who suffer from a similar mental illness. I am also satisfied on the evidence of Mrs Dueckershoff that both she and MJE's mother intend that MJE utilise this service. I accept I cannot make a condition of MJE's release that he attend this service.[6]
(g)Dr Wojnarowska in her report on MJE states she has seen no evidence of psychosis or any psychiatric disorder or anti‑social problems.
(h)There is no evidence that MJE has a substance abuse history.
(i)Dr Brett is of the opinion that MJE cannot live independently and requires supervision 24 hours 7 days a week.
(j)The evidence of Mrs Dueckershoff is that MJE is always supervised by an adult when he leaves his residence.
(k)MJE's Weekly Schedule indicates that he is occupied in his employment at Activ Foundation Monday, Tuesday, Thursday and Friday from 7 am to 4.30 pm. When he is engaged in social or sporting activities he is supervised by an adult. The Weekly Schedule indicates MJE's free time is primarily limited to nights and Saturday and Sunday mornings when he is at home where he resides with his mother.
(l)MJE's risk to the community of committing offences is substantially minimised by his level of supervision both at home and in public.
(m)In all probability if a custody order is made, MJE will be placed in prison.[7] Given MJE's autism spectrum disorder and intellectual disability which is a significant mental impairment, I consider in a prison environment MJE would be distressed, and highly vulnerable to harm and exploitation by others.
[6] The State of Western Australia v Tax [2010] WASC 208 [18] (Martin CJ).
[7] The Act s 24.
Conclusion
For these reasons, I make the following orders:
1.Indictment 1885 of 2018 is quashed.
2.The accused is released.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior21 JUNE 2019
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