The State of Western Australia v Plant
[2022] WADC 47
•20 MAY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PLANT [2022] WADC 47
CORAM: LONSDALE DCJ
HEARD: 2 DECEMBER 2020, 18 FEBRUARY, 21 APRIL, 4 OCTOBER 2021, 27 JANUARY & 21 APRIL 2022
DELIVERED : 20 MAY 2022
PUBLISHED : 25 MAY 2022
FILE NO/S: IND ALB 54 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JAMES STUART PLANT
Catchwords:
Criminal law - Fitness to plead - Fitness to stand trial - Whether custody order appropriate
Legislation:
Criminal Code (WA), s 304(2)(b), s 317(1)(b), s 444(1)(b)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9, s 19
Criminal Procedure Act 2004 (WA), pt 3 div 4
Mental Health Act 2014 (WA)
Result:
Orders
The charges are dismissed
The committal is quashed
The accused is released
Representation:
Counsel:
| The State of Western Australia | : | Mr R C Clarke |
| 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 BP [2019] WADC 63
The State of Western Australia v Huggins [2017] WASCA 243
The State of Western Australia v S U [No 2] [2017] WADC 20
The State of Western Australia v Sanders [2012] WASC 409
LONSDALE DCJ:
Overview
Mr Plant is charged with one count of unlawful assault occasioning bodily harm in circumstances of aggravation contrary to s 317(1)(b) of the Criminal Code (WA), one count of wilful and unlawful damage of a motor vehicle contrary to s 444(1)(b) of the Criminal Code and one count of doing an act in which the life, safety or health of a person was likely to be endangered with intent to harm contrary to s 304(2)(b) of the Criminal Code.
The offences are alleged to have occurred on 17 April 2019 at Kojonup.
On 25 February 2020 his Honour Judge Bowden ordered a fitness to plead report.
On 30 June 2020 her Honour Judge Braddock adjourned the matter to allow further information concerning Mr Plant's fitness to plead to be presented. Her Honour adjourned the matter on several occasions.
The matter first came before me on 2 December 2020. Since that time, there have been several further adjournments in order to allow the parties to present evidence relevant to the question of whether or not a custody order should be made, if Mr Plant were to be declared unfit to stand trial.
The delays in bringing this matter to a conclusion are regrettable. However, they were necessary in order to ensure that the court had all information necessary to make a decision in the best interests of the accused and to ensure the protection of the community.
On 20 May 2022 I gave brief oral reasons and made orders dismissing the charges, quashing the committal and ordering Mr Plant's release. My detailed reasons follow.
I am not satisfied that Mr Plant is fit to stand trial or will become mentally fit to stand trial within six months.
I have decided I should release Mr Plant unconditionally pursuant to the provisions of s 19(1), s 19(4) and s 19(5) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA) and pt 3 div 4 of the Criminal Procedure Act 2004 (WA).
Summary of the facts of the alleged offending
Mr Plant is the father of the victim whose name is Rebecca Susan Jane Fryer‑Smith. Mr Plant had been living with the victim for approximately one year prior to the commission of the alleged offences.
Between 9.30 am and 10.30 am on Wednesday, 17 April 2019, Mr Plant and Ms Fryer-Smith were at home and began arguing. Mr Plant used both clenched fists to 'hammer' punch the victim to the head multiple times before striking her to the neck and upper chest region. The victim moved away from Mr Plant and, with her two grandchildren, left the house.
Ms Fryer-Smith attempted to flee in her vehicle, but Mr Plant followed her in his vehicle, ramming her vehicle multiple times and pushing it with force towards the house.
Ms Fryer-Smith then got out of the vehicle and went inside the house with her grandchildren, locking the door behind her.
Whilst Ms Fryer-Smith was inside the house, Mr Plant drove the vehicle over a ramp causing the vehicle to roll. He then got out of that vehicle and into an unregistered Toyota Hilux before driving it into a concrete tank, causing extensive damage to the front of the vehicle.
Police attended and arrested Mr Plant before taking him to the Kojonup Police Station. He participated in a police record of interview and was charged.
Mr Plant admitted to the conduct the subject of the three charges to police. He described himself to police as angry and frustrated as well as homicidal and suicidal.
The first issue - fitness to stand trial
Section 10 of the CLMIA Act provides:
10Presumptions as to mental fitness to stand trial
(1)An accused is presumed to be mentally fit to stand trial until the contrary is found under this Part.
(2)An accused found under this Part to be not mentally fit to stand trial is presumed to remain not mentally fit until the contrary is found under this Part.
An accused person's fitness to stand trial is to be determined in accordance with the criteria set out in s 9 of the CLMIA Act which provides:
9Mental unfitness to stand trial, definition
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
The question of whether Mr Plant is mentally fit to stand trial is for me to determine after inquiring into the question and informing myself in any way that I think fit.
The evidence relating to Mr Plant's fitness to plead
In assessing the question of fitness to plead, I have had regard to the following material:
1.the statement of material facts;
2.the prosecution brief;
3.a report of Consultant Forensic Psychiatrist Dr Mark Hall dated 12 May 2020;
4.a National HACC Functional Assessment Instrument dated 28 July 2020;
5.reports of Dr Anthony Alvaro, Consultant Neurologist dated 19 December 2018 and 19 March 2019;
6.Mr Plant's criminal record;
7.the transcript of Mr Plant's sentencing in the Queensland Magistrates Court on 3 August 2018;
8.various documents relating to Mr Plant's appearance in the Queensland Magistrates Court; and
9.Australian government aged care assessment dated 13 December 2021.
Dr Hall's opinion is that Mr Plant has frontotemporal dementia, a progressive neurodegenerative disorder resulting in cognitive impairment.
Relevantly, at par 24 of his report, Dr Hall said:
… Mr Plant's dementia first became manifest approximately five years ago through a slowly progressive impairment of speech. In early 2018 he experienced a number of significant events and psychosocial stressors. Whilst such events and stressors bring mental health consequences in their own right, his adjustment to them would have been impaired due to deterioration in personality and behaviour stemming from the dementia, noting that the dementia was at that time not formally diagnosed. It is also possible that the uncharacteristic behaviour stemming from the undiagnosed dementia contributed to the breakdown of his longstanding relationship in early 2018, around which there appears to have been emotional liability and impulsive suicidal ideation in addition to alleged family violence for which he was charged. Mr Plant, at the age of 74, subsequently found himself for the first time in prison. During his 4 months in custody he was also diagnosed with prostate cancer. Following his release from prison in September 2018 he relocated to WA from Queensland where he had lived most of his life. Any change of residence let alone an interstate move is difficult for the elderly due to diminishing adaptive capacity with age, but in the case of someone with dementia would be very destabilising. The available information suggestion suggests increasing behavioural disturbance since his relocation including labile mood, bizarre behaviour and aggressive outbursts as well as the development of odd ideas with paranoid and hypochondriacal themes, in addition to the problem of progressive deterioration of speech and the emergence of problems with written expression. Following an episode of suicidality in December 2018 he was admitted to the Albany Mental Health Unit where his disturbance of reality testing (odd ideas with paranoid and hypochondriacal themes) was noted but not specifically treated. Similarly, although his mood was depressed, he improved over the course of the admission despite not being treated with antidepressant medication. During that admission, he underwent a neurological assessment by Dr Alvaro. At a follow up review with Dr Alvaro in March 2019 the diagnosis of frontotemporal dementia was confirmed. In summary, from a psychiatric perspective, it is highly likely that the severe maladjustment, emotional and behavioural disturbances, and abnormal preoccupations exhibited by Mr Plant over the past 18 months to 2 years are due to the problematic interaction between frontotemporal dementia and his significant psychosocial stressors.
At the time of writing his report, Dr Hall's opinion was that, although Mr Plant understood the charges, the requirement to plead to the charges, the purpose of the trial, and would be able to exercise his right to challenge jurors, his ability to follow the course of the trial was likely to decline.
Dr Hall was not satisfied that Mr Plant possessed the ability to understand the substantial effect of evidence presented by the prosecution in a trial;[1] nor was he satisfied that Mr Plant would be able to properly defend the charge.[2]
[1] Report of Dr Hall dated 12 May 2020, par 24(f).
[2] Report of Dr Hall dated 12 May 2020, par 24(g).
In summary, Dr Hall was of the opinion that, from a psychiatric perspective, Mr Plant was mentally unfit to stand trial and would not be expected to become fit to stand trial in the near future.
My finding as to fitness to plead
Having regard to Dr Hall's opinion, read in conjunction with the other reports, I am satisfied on the balance of probabilities that Mr Plant is not fit to plead within the meaning of s 9 of the CLMIA.
I am further satisfied that there is no realistic prospect that Mr Plant will ever become fit to plead, let alone in the next six months.
As there is presently no indictment, I will order that the charge be dismissed and quash the committal. I do so without deciding whether Mr Plant is guilty or otherwise.
What orders should I make
Having satisfied myself that Mr Plant is not fit to plead and is unlikely to become fit to plead within the next six months, I must follow the procedure set out in s 19(4) of the CLMIA Act:
An order under this subsection is an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal, without deciding the guilt or otherwise of the accused and either -
(a)releasing the accused; or
(b)subject to subsection (5), making a custody order in respect of the accused.
Section 19(5) of the CLMIA provides:
A custody order must not be made in respect of an accused unless the statutory penalty for the alleged offence is or includes imprisonment and the judge is satisfied that a custody order is appropriate having regard to -
(a)the strength of the evidence against the accused; and
(b)the nature of the alleged offence and the alleged circumstances of its commission; and
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
I now turn to the various factors I am required to consider under s 19(5) of the CLMIA Act in deciding whether I should make a custody order or release Mr Plant unconditionally.
The strength of the evidence in relation to the charges
It is not suggested that there are any weaknesses in the case against Mr Plant. The prosecution case is strong.
The nature of the alleged offences and the alleged circumstances of the commission
The present charges are objectively very serious as counsel for Mr Plant frankly concedes.
The offending concerns serious allegations of violence. If convicted, terms of lengthy imprisonment would be inevitable.
The accused's character, age, health and mental condition
For the majority of his life Mr Plant was of no concern to the criminal justice system.
On 3 August 2018 Mr Plant was convicted in the Queensland Magistrates Court for assaulting or obstructing a public officer, contravention of a domestic violence order, dangerous operation of a vehicle, as well as a number of driving offences. Mr Plant was sentenced in the Magistrates Court to a term of imprisonment which was suspended.
Mr Plant's offending on that occasion also concerned a family member and involved the driving of a motor vehicle in a threatening and dangerous manner. The offending was not provoked and resulted in fixation upon a family member.
The magistrate who sentenced Mr Plant found the offending to be 'extremely out of [character] behaviour'. Although the magistrate had no evidence that Mr Plant had a mental impairment, Dr Hall considered that it was likely that his recent behaviour had been as a result of problematic interaction between frontotemporal dementia and significant psychosocial stressors.
Dr Hall noted that after Mr Plant moved to Western Australia from Queensland he exhibited worsening behavioural problems including violent outbursts and becoming suicidal.
Dr Hall noted that Mr Plant's frontotemporal dementia was progressive and expected to deteriorate.
Mr Plant has been in prison since his arrest.
The State has inquired with Melissa Peet, nursing manager at Albany Regional Prison. Ms Peet has advised that Mr Plant has declined physically and mentally since his remand in custody. Mr Plant has difficulty with mobility and his balance is affected. Ms Peet noted difficulties with Mr Plant's ability to listen and converse.
Ms Peet has advised that, although Mr Plant continues to have fixated ideas, they are no longer focused on individuals. She reports that there have been no outbursts in prison and he has not lashed out.
Ms Peet advised that Mr Plant does not wander within the prison but would be unable to say whether he would do so in the community. She considered he would be unlikely to be able to drive a car although she could not rule that out.
Ms Peet said it could not be assumed that Mr Plant's behaviour in the community (without restrictions) would be the same as in the highly controlled environment of a prison.
Mr Plant was born 24 July 1944 and is therefore 77 years of age. There is no evidence that he has a reduced life expectancy. However, I do need to consider that Mr Plant is unlikely to live many more years and he is likely to continue to decline physically and cognitively. The evidence presently suggests that, if not properly managed, there could still be a significant risk he will present a danger to others.
The public interest
Public interest considerations are paramount. I need to balance the public interest of protecting the community from the risk of re‑offending, against the public interest in ensuring that Mr Plant is housed humanely and receives appropriate medication and support for his condition: The State of Western Australia v Sanders [2012] WASC 409 [30].
I should have regard to the amount of time spent in custody and the likely term of any period of imprisonment that would have been imposed had the accused been convicted of the offence: The State of Western Australia v Sanders [2012] WASC 409 [31].
Mr Plant has been in custody since the date of his arrest, namely 17 April 2019. He has therefore been in prison for more than 3 years (the equivalent of the custodial portion of a 5‑year sentence where there is eligibility for parole).
Mr Plant does not qualify to be treated at an appropriate mental health facility or receive treatment under the Mental Health Act 2014 (WA) because he does not suffer from a mental illness which requires treatment; he has a neurocognitive disorder.
Although in theory Mr Plant could be held in a 'declared place' under the Mental Health Act, it is unlikely to be deemed to be suitable given his significant impairment. See The State of Western Australia v Huggins [2017] WASCA 243 [47].
As has been observed in a number of other cases in this court, the court is unable to make a conditional release order providing for supervision in the community. The court only has the option of making an unconditional release order or a custody order. In The State of Western Australia v BP [2019] WADC 63, I adopted the observations of his Honour, Chief Judge Sleight in the case of The State of Western Australia v S U [No 2] [2017] WADC 20 [45] - [47]. His Honour's comments are also apt to the present case.
As in The State of Western Australia v BP, I have concerns about whether prison is an appropriate facility to house Mr Plant. However, I have no power to order where he should be detained.
As his Honour observed in The State of Western Australia v S U [No 2], the risk of re‑offending is not the only consideration. As his Honour said at [54] ‑ [56]:
54However, the degree of risk of re-offending is not the only consideration. 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.14 Under s 5(2) of the Declared Places (Mentally Impaired Accused) Act 2015, one of the fundamental requirements is that:
Residents are to be provided the best possible training, including development programs that promote their physical, mental, social and vocational abilities.
55Also, pursuant to s 6 of the Declared Places (Mentally Impaired Accused) Act 2015, programmes and services for persons placed in the declared place must be designed and administered so as to provide a balance between protecting the community and also providing proper care and support for a person in a declared place. This balance under the section is achieved by requiring the programmes and services to be designed and administered so as to:
•Respect the rights of residents to be treated with dignity, courtesy and compassion; without discrimination or stigma; and with equality of opportunity [s 6(1)];
•Be sensitive and responsive to the diverse and individual circumstances and needs of residents taking into account their age, gender, spiritual beliefs, culture or linguistic background, family and lifestyle choices [s 6(2)];
•Reduce the risk of persons placed in the declared place offending or re-offending [s 6(4)(a)];
•Assist residents to live, work and participate in the community and be as independent as possible [s 6(4)(b)];
•Maximise quality of life for residents [s 6(4)(c)]; and
•Assist residents to be trained, developed and cared for in a manner that is the least restrictive option in the circumstances taking into account the need for protection and safety of residents and the community [s 6(6)].
56From these provisions I conclude that when considering the public interest, it is important to take into account that it is in the interests of the community that the accused be provided with skills and training and other forms of support to enable him to better cope with his mental impairment. In broad terms this could be described as rehabilitation, although of course, nothing can be done to improve his mental impairment. In Hogan v Hinch, French CJ at [32] stated in relation to provisions which provided for post custodial supervision and rehabilitation of sex offenders as follows:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
(FN14: See for example s 10 of the Mental Health Act 2014 which sets out the objects of the legislation in caring for mentally ill persons)
If there was no plan for where Mr Plant would reside and under what conditions, this would raise a significant concern in my mind, about the safety of the public. Mr Plant is unable to live independently. Given his previous behaviours and the fact that he is in irreversible cognitive decline, he remains a risk of re‑offending in potentially dangerous ways.
The proposals for the supervision of Mr Plant following his release
On 17 November 2020, the State Administrative Tribunal made a guardianship order for Mr Plant. The Public Trustee was appointed as plenary administrator. Mr Dean Tingey of the Office of the Public Advocate was appointed as Mr Plant's limited guardian.
Mr Tingey arranged for Mr Plant to undergo an ACAT assessment. He has recently arranged for Mr Plant to be placed in the care of St Bartholomew's at the facility known as the James Watson Centre (JWC) if I make an order for his release.
The JWC is situated in Lime Street, East Perth. The facility is a nursing home for aged care residents with approximately 20 ‑ 30 beds. It has a focus on housing people at risk of homelessness or who are leaving the criminal justice system. The facility has previously housed people who have been released from prison as well as people with dementia. It is a semi‑secure facility which means that residents cannot leave without permission. Residents' access to the JWC is restricted by a staff swipe card. Outside the door to the JWC is a gated courtyard which the residents can access with permission. There is an outdoor smoking area around the perimeter of the building which residents can use but it is surrounded by a secure fence. The JWC is monitored by CCTV footage. Within the JWC there is a refectory which is sometimes used by residents for social activities but this is under the supervision of staff.
On 28 February 2022 the State Administrative Tribunal amended the guardianship order to allow the Public Advocate to give or withhold consent to the use of any restrictive practice to be employed in compliance with pt 4A of the Quality of Care Principles 2014 (Cth) pursuant to the Aged Care Act 1997 (Cth).[3]
[3] The orders made by the State Administrative Tribunal permit the Public Advocate to consent on behalf of Mr Plant to the use of restrictive measures. Ordinarily, consent would be obtained after a report from an approved health practitioner is obtained but the power to authorise restrictive measures can also be exercised in an emergency: s 15FC of the Quality of Care Principles.
Since Mr Plant's matter was last before me on 21 April 2022, the Public Advocate has been paying a daily fee to secure a bed at the JWC.
In order to ensure Mr Plant's safe transition from prison to the JWC, I ordered a bring up order for Mr Plant to appear in the Perth District Court in person. At the hearing on 20 May 2022, staff from the JWC attended to escort him to the facility.
The State submitted that the court should make the following recommendations:
•The JWC swipe card issued to the accused is not to activate the exterior courtyard gate.
•JWC staff be instructed that if the accused were to ask to leave the JWC, Mr Tingey or the Office of the Public Advocate must be contacted to seek instructions.
•JWC and St Bartholomew's reception staff be instructed that the accused must not be given access to a motor vehicle.
•JWC staff be instructed that if the accused were to attempt to exit St Bartholomew's that they should contact the police and Rebecca Fryer‑Smith and her husband, Ross.
•As soon as practicable after a release order is made, Mr Tingey give consideration to whether or not to a report for the purposes of s 15FC is required.
Plainly, the State's suggestions for Mr Plant's future management are appropriate.
Other public interest considerations
I would have concerns about Mr Plant's risk of re‑offending if he were to be released into the community unsupervised and without restrictions on his movements. However, a prison is not an appropriate facility for a person of advanced years with significant cognitive impairment. I am satisfied that the risk to the community will be sufficiently mitigated by the plans put in place by the Public Advocate for Mr Plant to be housed and cared for at the JWC.
Had there been no plan for Mr Plant's release, I would not have made an order to release him. However, in the circumstances it was appropriate that I order his release.
Orders
The orders made on 20 May 2022 were that:
1.Mr Plant is declared unfit to plead;
2.The charges are dismissed and the committals are quashed; and
3.Mr Plant is released unconditionally.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JS
Associate to the Judge
25 MAY 2022
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