The State of Western Australia v Raw - [2022] WADC 19

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RAW [2022] WADC 19
CORAM:   BOWDEN DCJ
HEARD:   25 FEBRUARY 2022
DELIVERED          :   25 FEBRUARY 2022
FILE NO/S:   IND GER 9 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

TARNI TEMAHOA RAW

Catchwords:

Criminal law - Criminal procedure - Fitness to stand trial

Legislation:

Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Evidence Act 1906 (WA)

Result:

Ms Raw found unfit to plead
Indictment quashed
Custody order made

Representation:

Counsel:

The State of Western Australia	:	Ms S Keogh
Accused	:	Ms E C Svanburg

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Eva Svanberg Barrister And Solicitor

Case(s) referred to in decision(s):

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Ngatayi v The Queen (1980) 147 CLR 1
R v Dunne [2001] WASC 263
R v Gardiner (No 2) (1999) 21 SR (WA) 316
R v Gardiner (No 3) (2000) 24 SR (WA) 136
R v Lindley [2003] WADC 41
R v Presser [1958] VR 45
R v Robson [2001] WADC 133
R v T (2000) 109 A Crim R 559, 565
The State of Western Australia v DJM [2021] WADC 2
The State of Western Australia v Sanders [2012] WASC 409
The State of Western Australia v Stimpson (2) [2020] WASC 19
The State of Western Australia v Tax [2010] WASC 208
The State of Western Australia v The SU (2) [2017] WADC 20

BOWDEN DCJ:

It is alleged that on 10 July 2020 Ms Raw unlawfully did grievous bodily harm to her mother whilst in a family relationship. The maximum penalty is 14 years' imprisonment.
Ms Raw pleaded guilty to the offence on the 28 January 2021 in the Geraldton Magistrates Court and was committed to the District Court for sentence.
A question has arisen as to whether she is mentally unfit to stand trial and this issue must be dealt with under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act).

The law

Notwithstanding that Ms Raw entered a plea of guilty to the charge the question of whether she is mentally fit to stand trial may be raised by the prosecutor, defence or presiding judge in the District Court at any time before or after an indictment is presented, s 11(1), (s 11(2)).
In this case the question of fitness to stand for trial was raised by the court upon receipt of the pre-sentence report. The pre-sentence report contained a psychiatric report prepared by Dr Palmer indicating Ms Raw was likely unfit to participate in criminal proceedings. The report noted it was likely that Ms Raw had been unfit due to symptoms of schizophrenia from the time of the offence until presently (which obviously must include the period of time that she entered a plea of guilty). In those circumstances the court raised itself the question of whether she was fit to plead.
Under the Act an accused is presumed to be mentally fit to stand trial until the contrary is proven (s 10(1)). The question of whether an accused is not mentally fit to stand trial is to be determined by the balance of probabilities. A judge can enquire into that question and inform himself in any way he thinks fit (s 12(1)).
Pursuant to s 9 of the Act a person is mentally unfit to stand trial if, because of mental impairment, she 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 of the trial; or
(g)unable to properly defend the charge.
Mental impairment is defined under the Act to mean intellectual disability, mental illness, brain damage or senility (s 8).
Mental illness is defined to mean an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary but does not include a condition that results with the reaction of a healthy mind to extraordinary stimuli (s 8).
Section 9 involves a two-fold test. Firstly, the court must determine whether there is any mental impairment.
Secondly, if there is a mental impairment does that result in Ms Raw being unable to meet one of the criteria in s 9(a) to s 9(g)? If so, Ms Raw would be mentally unfit to stand trial.
If Ms Raw is mentally unfit to stand trial she may be subject to a custodial order even though she has not been convicted of any offence if the criteria in s 19(5) is satisfied: R v Robson [2001] WADC 133 or she may be released under s 19(4).
It is in the interests of an accused person to be brought to trial rather than to risk being incarcerated without trial pursuant to a custody order under s 19 of the Act: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [24] (Gleeson CJ); R v Gardiner (No 3) (2000) 24 SR (WA) 136; R v Gardiner (No 2) (1999) 21 SR (WA) 316; R v Robson.
The first issue to address is whether Ms Raw suffers from a mental impairment.

Evidence

No witnesses were called at the hearing to determine whether Ms Raw was mentally unfit to stand trial.
The evidence consists of the prosecution brief and the psychiatric reports of Dr Kelly Palmer dated 8 July 2021, 12 October 2021 and 22 February 2022 and the addendum to her report dated 15 July 2021 and Dr Smith's reports dated 19 July 2021 and 13 December 2021.

Does Ms Raw suffer from a mental impairment?

Dr Kelly Palmer is a consultant psychiatrist.
Her report of 22 February 2022 states that Ms Raw has a clinical diagnosis of chronic treatment resistant schizophrenia, unspecified eating disorder and past polysubstance misuse.
Ms Raw has a long history of mental illness, namely treatment resistant, chronic schizophrenia and has had multiple relapses. It says her general level of function is poor, she demonstrates significant treatment resistant and suffers fluctuations in her mental state even within a highly controlled environment in prison and hospital and at the time of the offence was likely that Ms Raw was suffering symptoms of a relapse of schizophrenia in the context of non‑compliance with oral antipsychotic medication and inadequate treatment response and occasions of delayed dosing of depot injection antipsychotic medication.
Ms Raw's chronic treatment resistant schizophrenia was first diagnosed with psychosis when she was 17 in 2010. Ms Raw has been admitted to Geraldton Hospital in 2016, 2017, 2018, to Graylands Hospital in 2017, 2018 and 2020 and to Abbotsford Hospital in 2018 as a result of her condition.
Dr Smith's reports support the conclusion that Ms Raw is unfit to stand trial.
I am satisfied that Ms Raw suffers from ongoing symptoms of chronic treatment resistant schizophrenia based on the reports of Dr Palmer and Dr Smith and accordingly she suffers a mental impairment within the meaning of the Act.

Does Ms Raw meet any one of the criteria in s 9(a) to s 9(g) of the Act?

The mere existence of mental impairment does not in itself prevent a person from being brought to trial: Eastman v The Queen.
Ms Raw is only unfit for trial with the mental impairment results in one of the s 9 criteria being met.
It is not necessary for Ms Raw to have a complete understanding of the course of the trial or to understand the evidence presented by the prosecution in detail nor does she have to understand the law and its application to the facts of the case. The test is not to be applied as if Ms Raw was unrepresented. It is the ability of Ms Raw to properly defend the charge assisted by counsel which is the relevant question: Ngatayi v The Queen (1980) 147 CLR 1.
Accordingly the court must take into account that Ms Raw will be assisted by legal representation. If Ms Raw realises in general terms what it is to be put on trial and can make sense of the evidence against her she can take a sufficient part in proceedings for a trial to proceed: R v T (2000) 109 A Crim R 559, 565; R v Lindley [2003] WADC 41.
The test includes examining whether Ms Raw has sufficient capacity to be able to decide what defence she will rely upon and to make her defence and her version of facts known to the court and her counsel: R v Dunne [2001] WASC 263; R v Presser [1958] VR 45, 48.

Is Ms Raw unable to understand the nature of the charge pursuant to s 9(a) of the Act?

Dr Palmer's opinion is that Ms Raw is unable to understand the nature of the charges due to her impaired communication likely caused by her diagnosis of schizophrenia.

Is Ms Raw unable to understand the requirements to plead to the charge or the effect of the plea pursuant to s 9(b) of the Act?

Dr Palmer says that Ms Raw is not able to demonstrate any understanding of the requirement to plead to the charge or the effect of a plea although she may have a basic understanding of the word or concepts of guilty or not guilty. Dr Palmer says Ms Raw would likely have no meaningful understanding of the requirements to plead nor the ability to evaluate her options to decide on a plea or understand the implications of a plea on her legal circumstances.

Is Ms Raw unable to understand the purpose of the trial pursuant to s 9(c) of the Act?

Dr Palmer's opinion is that Ms Raw is currently unlikely to appreciate or understand the purpose of a trial.

Is Ms Raw unable to understand or exercise her right to challenge jurors pursuant to s 9(d) of the Act?

Dr Palmer says Ms Raw has no ability to understand or exercise her right of challenge due to her current symptoms of schizophrenia.

Is Ms Raw unable to follow the course of the trial pursuant to s 9(e) of the Act?

Dr Palmer's opinion is that Ms Raw would be unable to follow the course of a trial.

Is Ms Raw unable to understand the substantial effect of evidence presented by the prosecution in the trial pursuant to s 9(f) of the Act?

Dr Palmer's opinion is that due to the thought disorder and impaired communications Ms Raw would be unable to understand the substantial effect of evidence presented by the prosecution in the trial.

Is Ms Raw unable to properly defend the charge pursuant to s 9(g) of the Act?

In Dr Palmer's opinion Ms Raw has an inability to be able to explain her version of events relating to the charge. Dr Palmer says Ms Raw is non‑verbal and responds to hallucinations, often talking to herself or fatuously laughing without external stimuli. Dr Palmer says Ms Raw's non-verbal responses are at times vague and inconsistent and should not be relied upon. Dr Palmer says Ms Raw's ability to demonstrate understanding of her offending and the legal issues is minimal to non‑existence.
Dr Smith is of a like mind. Although unlike Dr Palmer he did not specifically address each of the s 9 criteria he described Ms Raw as having a severe disturbance of meaningful verbal communication and notes that her offending behaviour correlated with concerns raised during her admissions to Graylands Hospital in February 2020.
Dr Smith observes that Ms Raw has never been able to talk about her charges, much less her offending behaviour to anyone including her legal counsel and her inability to communicate effectively making it impossible to determine whether her offending occurred in response to auditory hallucinations, or it was a 'passivity' phenomenon in which she experienced her individual volition as being controlled externally.

Conclusions on s 9 of the Act

I accept Dr Palmer's evidence and find that Ms Raw is unfit to stand trial because she meets each of the criteria referred to in s 9 of the Act.
Having found Ms Raw not mentally fit to stand trial I must consider whether she may become mentally fit within six months.

Is the court satisfied that Ms Raw will not become mentally fit to stand trial within six months?

Dr Palmer concluded that Ms Raw is currently unfit to stand trial or plead to the charges. Ms Raw has been unfit since at least the time of the offence and Dr Palmer does not foresee her becoming fit in the next six to 12 months. Dr Palmer says she does not foresee any further psychiatric treatment making any significant improvement to Ms Raw's prospects of fitness in the next six to 12 months and she does not think that even with the support of legal representation or further discussions that Ms Raw will become fit.
Both Dr Palmer and Dr Smith refer to Ms Raw as showing little or no improvement notwithstanding being on appropriate antipsychotic treatment. Dr Palmer's latest report is consistent with her earlier report of 8 July 2021 and 12 October 2021 and the addendum dated 15 July 2021 and Dr Smith's report of 13 December 2021. The combined weight of these reports lead me to conclude on the balance of probabilities that it is unlikely that Ms Raw will become fit within the next six months to stand trial.
Accordingly, the court must quash the indictment without deciding her guilt and either release Ms Raw or make a custody order pursuant to s 19(1) and s 19(4).

Custody order or release?

A custody order must not be made unless the alleged offence is punishable by imprisonment and the judge is satisfied that such an order is appropriate having regard to:
(a)the strength of the evidence;
(b)the nature of the alleged offence and the alleged circumstances of its commission;
(c)Ms Raw's character, antecedence, age, health and medical condition; and
(d)the public interest s19(5).
In this case, the alleged offence is punishable by a maximum of 14 years' imprisonment.

Custody order

If a custody order is made within five days, the Mentally Impaired Review Board (the Review Board) established under the Act must review Ms Raw's case and determine the place where Ms Raw is to be detained. Until that decision is made Ms Raw being over the age of 18 is to be detained either in an authorised hospital or a prison (s 25). Ms Raw can only be detained in an authorised hospital if she has a mental illness that is capable of being treated (s 24(2)).
Once the Review Board have determined the place where Ms Raw is to be detained she must be detained at that place (an authorised hospital, a declared place, or a prison) until release by order of the governor.
A release order can be made unconditionally or on conditions including conditions relating to undergoing specific treatment, residing at a specific place, and complying with the lawful directions from a supervising officer (s 35(3) and s 35(4)).
A person subject to a custody order may be granted a leave of absence from their detention by the governor following the recommendation from the Review Board for a period not exceeding 14 days at any one time conditionally or unconditionally as determined by the Review Board (s 28 and s 29). Similar conditions to those imposed when a release order is made can be imposed if a leave of absence is granted.

Release

The alternative option to a custody order is to order that Ms Raw be unconditionally released.
The court is not empowered to make an order of conditional release with, for example, conditions that Ms Raw the subject of specific treatment. This deficiency has been the subject of comment in a number of Supreme Court decisions referred to in my earlier decision of The State of Western Australia v DJM [2021] WADC 2.
I shall now consider the s 19(5) factors.

The strength of the evidence

Ms Neumann

Ms Neumann was 55 years of age at the time of the commission of the alleged offence. She is the mother of Ms Raw.
Ms Neumann says that after she returned home from working, a brief discussion occurred between her and her daughter and when she was putting her shopping into the fridge, she felt a solid blow to the middle of her back which made her fall forward onto the ground.
Ms Neumann looked over her right shoulder and saw her daughter leaning over and pulling a knife out of her back. Her daughter did not say anything but had a 'crazy look on her face'.
Ms Neumann later identified the knife as one of her kitchen knives.

Mr Reaker

Mr Reaker is a neighbour who was watching television when he heard a scream from outside. He went outside and he saw Ms Neumann coming out of the front door of her house screaming that she had been stabbed. Mr Reaker immediately assisted Ms Neumann. He observed Ms Raw standing there in a daze saying nothing.

Mr Barton

Mr Barton was a neighbour who was pulling into his house in his motor vehicle when he heard someone screaming loudly. He ran over to Ms Neumann who was hunched over in the middle of the road. Ms Neumann told him that Tarni stabbed her and when Tarni was asked what had happened she said, 'I didn't mean to. I'm sorry'. Mr Barton drove Ms Raw to the Kalbarri Hospital.

Mrs Barton

Mrs Barton assisted the injured Ms Neumann. When she asked Ms Raw what happened, Ms Raw replied, 'I stabbed mum. I didn't mean too. I'm sorry'.

Dr Kemmer

Dr Kemmer observed the following injuries on Ms Neumann.
1.Right haemopneumothorax.
2.Right ninth rib fracture.
3.Stab wound to upper right back (3 cm transverse laceration).
In the doctor's opinion, the injuries were of such a nature as to interfere with health and comfort of Ms Neumann, and of such a nature as to endanger or be likely to endanger life, but were not of such a nature as to cause or be likely to cause permanent injury to health.

Police evidence

Evidence is given from various police officers that upon receipt of information about the alleged offence they attended the Kalbarri Health Centre where they spoke to Ms Neumann. A police officer says that when he spoke to Ms Raw she stared blankly back at him and would not answer, her eyes blinked continuously, and he was unsure whether Ms Raw understood what was being said.
Ms Raw was taken into police custody and continued to stare blankly at the police officers and did not speak.
The police officers were of the opinion that Ms Raw did not fully understand her rights. The police officers also took various photographs and seized various items when they searched the residence where the alleged offence occurred.
Ms Raw was later taken to the hospital where she was given oral sedatives and went to sleep. When she woke, she ran through the curtain towards the hospital exit, but was apprehended by the police. In my view, this evidence would be inadmissible at any trial of Ms Raw.

Ms Raw's character, antecedence, age, health and medical condition

Ms Raw is currently 29 years of age. The State Administrative Tribunal made guardianship and administration orders on 8 September 2021. Ms Raw's uncle is her nominated guardian and her father is the administrator of her finances.
Significantly, she has no prior criminal convictions and has worked at a variety of positions, including as a waitress and other short‑term employment.
Ms Raw was first diagnosed with chronic schizophrenia when she was 17 in 2010 and has been admitted to hospital on approximately eight occasions between 2016 to 2020 as a result of her mental health issues. It is thought that her illicit substance use has contributed to the various relapses. Ongoing symptoms of mental health impair her insight, communication and thought process to such an extent that she often just nods either yes or no.
Dr Palmer's report of 22 February 2022 states that Ms Raw uttered approximately 50 words during the interview lasting 1 hour and 15 minutes. Ms Raw mainly spoke in one-word answers or very short sentences and communicated by shrugs, winces, nods, shakes of her head, blank stares and long periods of silence. She laughed and giggled in a fatuous manner and was not responsive to questions asked or topics of discussions. Non-verbal responses were inconsistent and in Dr Palmer's opinion could therefore be considered unreliable.
While Ms Raw has been observed to engage more freely with inmates and prison staff and her family, her conversations are limited to superficialities and in relation to having her basic needs met.

Dr Palmer said that Ms Raw's impaired communication is likely best explained as part of her schizophrenic illness.
Dr Palmer specifically dealt with the question of whether or not Ms Raw was malingering and concluded Ms Raw does not fulfil any aspects of malingering but demonstrates longstanding symptoms consistent with schizophrenia which have pre‑dated her offending and likely significantly contributed to her offending behaviour.
Dr Palmer points out that Ms Raw has been observed for 1½ years at both the hospital and prison by multiple staff members and has not demonstrated an understanding of her predicament or communicated meaningfully.
Dr Palmer points out that Dr Smith's opinion is that Ms Raw remains mentally unwell due to treatment resistant schizophrenia and remains unfit to stand trial or plead guilty or plead due to psychotic symptoms impairing her thinking behaviour and communications.
Dr Palmer was also in receipt of information from Ms Raw's lawyer that indicated that Ms Raw was communicating in sentences with her. Dr Palmer notes that Ms Raw's communication often fluctuated but said Ms Raw has generally retained an ability to express herself in short sentences in order to have her basic needs met, discuss day to day matters or exchange pleasantries.
Dr Palmer said that whilst Ms Raw has knowledge of particular lyrical terms such as guilty, not guilty or adjournment when she is asked to explain these concepts in detail and in the context of what will happen next she is unable to provide any explanation.
Dr Palmer said that when Ms Raw is asked what her instructions were to her lawyer she simply laughed and shrugged, and in Dr Palmer's opinion it is likely that individuals may conclude Ms Raw is understanding what is told to her when she responds with a smile or nod but when Ms Raw is asked to explain her understanding of the importance and complex issues she is unable to demonstrate meaningful understanding.
Ms Svanberg said that Ms Raw's family had noticed improvements in Ms Raw's communications over the last couple of months and since she had been transferred to Bandyup she seemed to be improving and have been doing work in the garden. Accepting as I do those submissions it does not cause me to doubt the accuracy of the medical evidence that I have referred to.
Whilst I accept those statements they cannot stand against the overwhelming medical evidence that I have referred to.
Dr Smith's report reveals that Ms Raw was taken into custody on 11 July 2020 and immediately transferred to the Frankland Centre because of her acute psychotic mental state. She remained there until October 2020 and for approximately 27 days in November 2020. She was later transferred to Melaleuca Women's Prison where Dr Smith became her treating psychiatrist and was transferred to the Bindi Mental Health Unit at Bandyup Women's Prison on 19 August 2021.
He saw Ms Raw on regular occasions and noted her communication difficulties. He observed that she answered most questions with shrugs, grins, frowns or nods and it was not possible to have a sustained dialogue. Dr Smith reported that Ms Raw appeared quite preoccupied and it was difficult to gauge what she was thinking.
Dr Smith says Ms Raw's case is complex. In effect there have been no improvement in her level of functioning despite treatment. Dr Smith remains concerned about Ms Raw's severe disturbance of meaningful verbal communication which he describes as limited and restricted to basic topics that concern her directly. Dr Smith says that the many bizarre residual features in Ms Raw's behaviour are due to her incomplete response to Clozapine but without that medication her mental state deteriorates even further and when on one occasion Clozapine had to be ceased she became more preoccupied, hostile, agitated and withdrawn.
Dr Smith says Ms Raw spends her time at Bindi Bindi wandering or lying on a beanbag, is preoccupied, often looking troubled but also laughing at times in response to auditory hallucinations, she has lost weight and purges the food that she is given.
Ms Raw has been on a community treatment order since 2016. It is noted that she has poor compliance with medication.
Dr Palmer notes that in June 2020 Mr Raw's mother contacted the Geraldton Mental Health because Ms Raw was laughing to herself, withdrawn and solitary with low motivation and apathy. When taken to the hospital on the day of the offence, Ms Raw attempted to escape from the hospital, and appeared confused.
From the time of the alleged offence Dr Palmer reports that Ms Raw has demonstrated ongoing symptoms of mental illness, impaired insight, communication and thought processes. She was moved to a cell with camera monitoring on 23 September 2021 due to her unsettled behaviour. She was deliberately vomiting, had poor oral intake, was spitting out medication and according to Dr Palmer was likely experiencing hallucinations. Camera monitoring revealed obsessive compulsive and ritualistic behaviour about her toilet habits.
Dr Palmer notes that although Dr Smith was of the opinion that Ms Raw needed to be in hospital there were no beds available at the Frankland Centre. Dr Smith says that safety and risk of impulsive violence was an important consideration in Ms Raw's unsettled mental state. The prison medical notes of October 2021 refer to Ms Raw responding to unseen stimuli, and said it was very difficult to assess her mental state as she was non-verbal, shrugs her shoulders or giggles when asked questions and remains isolated on the unit.
Ms Raw is currently prescribed Clozapine and required to have blood collected monthly to monitor her blood cell counts. She is on antidepressants and the depot antipsychotic medication Aripiprazole.
Dr Palmer reports issues in her family relationship with her mother who was the victim of the alleged offence. Ms Raw has a history of running away from home, unstable accommodation and all of these Dr Palmer says have contributed to a relapse of her illness.
Ms Raw's current diagnosed is that she suffers from an eating disorder, polysubstance misuse (cannabis, MDMA and amphetamine) and chronic treatment resistance schizophrenia. Her risk behaviours have included motor vehicle accidents, stealing motor vehicles, self‑harm, homicidal thoughts, aggressive behaviour, impulsivity, sexual disinhibition and stalking behaviour and these problems have resulted in estrangement from friends, family or relationship strains, accommodation stability, employment difficulties and financial risks.
Her general level of functioning is poor. She demonstrates significant treatment resistance and there is a deterioration in her mental state even within a highly controlled environment of prison and hospital.
Dr Palmer's opinion is that at the time of the offence it was likely that Ms Raw was suffering symptoms of a relapse of schizophrenia in the context of non-compliance with oral antipsychotic medication, inadequate treatment response and occasions of delay in taking her medication and there is no clear evidence that substance abuse was involved in precipitating her relapse.
Dr Palmer's opinion is that Ms Raw is best suited within a psychiatric hospital such as the Frankland Centre where she may receive more intense psychiatric care.
Dr Palmer's opinion is that Ms Raw's risk of harm to others particularly her mother is unable to be clearly evaluated and thus remains significant given the potential lethality of her offence and her mental health prior to the offence and the fact that her mental health is currently not significantly different.
Dr Tate who saw Ms Raw at the Frankland Centre and is a psychiatrist, expressed her support for a custody order noting that 'we know she is too unwell to be fit but not unwell enough to get here under the Mental Health Act so a custody order seems to be the only option … and a custody order at least ensures she gets the treatment and support she needs'.
Dr Palmer says that if Ms Raw is released into the community she will be offered minimal protection by the Mental Health Act2014 but as Ms Raw's risk of harm to others is unable to be clearly evaluated it remains significant given the potential lethality of her offence.
Dr Palmer says Ms Raw's mental health prior to the offence and at present is not significantly different and a custody order is appropriate.
A pre-sentence report prepared indicates that there is a potential risk and difficulty if the prison will not declare her an involuntary patient because there is a risk that she will be violent if she was in the Frankland Centre.

Public interest.

The public interest requires consideration of all factors, including the protection of the public from the risk of offending and the importance of a mentally ill person receiving proper treatment.
It is relevant to consider the effect of a custody order, the risk opposed by the accused in committing further offences if released, the danger posed to the community by that risk and the dignity and rights of the accused and her rehabilitation: The State of Western Australia v The SU (2) [2017] WADC 20 (Sleight CJDC).
Clearly, there is a public interest in protecting victims, such as Ms Neumann, from the alleged offending.
Public interest includes consideration of the effect that a custody order will have on an individual, particularly the possibility of being detained in a prison: The State of Western Australia v Sanders [2012] WASC 409 [30].
The Act only permits the court to make a release order or a custody order. If a release order is made, conditions cannot be imposed. A conditional release order which provides for supervision in the community is not able to be made: The State of Western Australia v Tax [2010] WASC 208.
The purpose of a custody order is not to punish an accused found unfit to be tried for an offence they have not been convicted it is to protect the public; a custody order serves as a protective purpose: The State of Western Australia v Stimpson (2) [2020] WASC 19.

Conclusion

The State's case against Ms Raw is overwhelming.
Ms Raw has no prior criminal convictions but has suffered from a significant mental illness for a considerable period of time.
Both Dr Palmer and Dr Smith have observed that there has been no improvement in Ms Raw's level of functioning. They both refer to her inability to communicate effectively and Dr Smith says that means it is impossible to determine whether her behaviour occurred in response to auditory hallucinations or whether she experienced individual volition as being controlled externally.
There are still residual features of her behaviour which have been described by Dr Smith as bizarre as a result of her incomplete response to Clozapine but without taking that medication her mental state deteriorates even further.
On an occasion when Clozapine was ceased, she became more preoccupied, hostile, agitated and withdrawn and when questioned as to whether she is willing to continue her treatment with Clozapine, she simply shrugs.
To reinstitute Clozapine further frequent blood tests were required and Ms Raw refused to cooperate with those tests and her condition deteriorated with the result that she was transferred to the Frankland Centre where she resumed taking Clozapine.
Dr Smith also observed that Ms Raw had gone into her cell and purged after being given medication which led to the deterioration in her mental state. This leads him to express concerns about her compliance with Clozapine.
Dr Smith refers to Ms Raw's ongoing lack of capacity to accept that she has a mental illness requiring treatment and this coupled with her communication deficits poses a serious management problem if she is in the community. Even depot injections brought about no further improvement. Those injections were ceased recently because of the lack of improvement and it was causing Ms Raw to lose weight and her low muscle weight made it difficult to inject without causing her discomfort.
Dr Smith says that Ms Raw's placement in the community will be a difficult anxious process which cannot in his opinion proceed at this stage while there is a serious lack of communication and her compliance with medication is uncertain and the results of treatment incomplete.
He says that even if she was to find well supported accommodation in Perth or Geraldton there would need to be 24-hour surveillance and in his opinion Ms Raw needs to be in a secure hospital facility as she is very unwell, lacks capacity and poses a potential serious risk to herself or others. Dr Smith says Ms Raw has not shown any aggressive behaviour in custody and not tried to access a weapon, but she is watchful, guarded, unable to communicate and agitated at times.
In Dr Smith's opinion Ms Raw possesses ongoing risks to herself and others due to her incompletely resolved mental illness and she is of the opinion that a custodial order should be made. Dr Smith says Ms Raw should be required to stay at the Frankland Centre and receive hospital treatment, a carefully management programme of eventual release, involving very well supervised community care with her progress being monitored and her management regulated by the Review Board.
Clearly Ms Raw requires assistance to overcome mental health issues that confront her. She has demonstrated in the past a reluctance to take prescribed medication. That medication is required to assist in her condition. She has been described by the psychiatrist as a potential risk to others.
She is charged with an extremely serious criminal offence and the State's case is overwhelming. Whilst she has no criminal convictions she has suffered from significant mental illness for a considerable period of time.
She would pose an unacceptable risk to the safety of others if released to the community without conditions. It is not appropriate that she be released.
A custody order is required to ensure that when released she is supervised in the community and her progress and management regulated by the Review Board.
I order
1.The indictment be quashed.
2.Ms Raw be subject to a custody order pursuant to s 19(1) and 19(4) of the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
25 FEBRUARY 2022