The State of Western Australia v Sanders - [2012] WASC 409

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- SANDERS [2012] WASC 409

CORAM: JENKINS J

HEARD: 26 OCTOBER 2012

DELIVERED : 26 OCTOBER 2012

FILE NO/S: INS 61 of 2012

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LUKE PATRICK THOMAS SANDERS
Defendant

Catchwords:

Criminal law - Not fit to stand trial - Whether custody order or order for release ought be made - Turns on own facts

Legislation:

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 5, s 12, s 19
Mental Health Act 1996 (WA)

Result:

Accused will not become mentally fit to stand trial within six months after the finding that he is not mentally fit
Indictment dated 17 May 2012 quashed
Accused released

Category: B

Representation:

Counsel:

Prosecution : Mr M G Hunter
Defendant: Mr D M Bodeker

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defendant: David Bodeker

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

R v Gardiner (No 3) (2000) 24 SR (WA) 136
R v Gardiner [1999] WADC 23
R v Garlett [2002] WADC 87
R v Watson [2000] WADC 235

JENKINS J: The accused was charged on an indictment dated 17 May 2012 that on 14 December 2010 at Manning he:
1.stole from [name], with threats of violence, one bottle of tequila, the property of Con's Manning Fine Wines
And that Luke Patrick Thomas Sanders was armed with a dangerous weapon, namely a knife.
2.unlawfully assaulted [name] and thereby did her bodily harm.
Mr Sanders appeared in the Perth Magistrates Court on 15 December 2010 in respect of the charges which were on the indictment. The magistrate refused him bail and made a hospital order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act), s 5.
Since that date Mr Sanders has been remanded in custody from time to time, remaining at the Frankland Centre, the secure psychiatric facility in Perth.
On 24 May 2012 I found, pursuant to the Act s 12, that Mr Sanders was not fit to stand trial. I adjourned proceedings to 20 September 2012, pursuant to the Act s 19(1)(b), to see whether he would become fit to stand trial.
On 20 September 2012 I adjourned proceedings to 26 October 2012 to receive further information and to make final orders pursuant to s 19 of the Act. On that date, I made final orders and said that I would publish my reasons. These are my reasons.

The legislation

The Act, s 19 provides that after I adjourn proceedings in order to see whether an accused will become mentally fit to stand trial (as I did) if I become satisfied that the accused will not become mentally fit within six months after the finding that he is not mentally fit, or if the accused remains unfit at the end of six months after the finding that he is not mentally fit, I must make an order under the Act, s 19(4).
An order under the Act s 19(4) is an order quashing the indictment and either releasing the accused or making a custody order, subject to s 19(5).
Six months from the making of my decision that Mr Sanders is unfit will not elapse until 24 November but the parties agree that Mr Sanders' mental condition is very unlikely to change significantly in the next four weeks. Thus I proceeded to make a final decision on 26 October 2012.
The Act s 19(5) provides that I must not make a custody order unless the statutory penalty for the alleged offence is or includes imprisonment and I am satisfied that a custody order is appropriate having regard to the strength of the evidence against the accused, the nature of the alleged offence and the alleged circumstances of its commission, the accused's character, antecedents, age, health and mental condition, and the public interest.

Issue 1

The first issue for me was whether I was satisfied that the accused would not become mentally fit within six months after the finding that he is not mentally fit; such finding having been made on 24 May 2012.
In her report dated 22 October 2012, Dr Pascu, a consultant psychiatrist, stated that there has not been any significant improvement in Mr Sanders' mental state since her previous reports and her opinion remained unchanged. That is, that Mr Sanders has chronic, treatment resistant paranoid schizophrenia. Her previous reported opinion (11 September 2012) was that Mr Sanders was unfit to stand trial, that he has not been fit to stand trial since his admission to hospital in December 2010, that he is unlikely to become fit to stand trial in the next six months and that she does not believe he will become fit to stand trial in the foreseeable future.
This opinion is supported by Dr Gosia Wojnarowska, a forensic consultant psychiatrist and, Dr Robert Stone, a medical officer, both of whom treat Mr Sanders at the Frankland Centre. In a joint report dated 19 September 2012 they say that Mr Sanders remains not fit to plead and that it is very unlikely that he will become fit to stand trial in the next six months.
On the basis of these uncontradicted opinions, I found that Mr Sanders will not become mentally fit within six months after the finding that he is not mentally fit; such finding having been made on 24 May 2012.

Issue 2

I had to then make an order quashing the indictment and either order the release of Mr Sanders or make a custody order subject to s 19(5). In deciding whether it was appropriate to make a custody order, I had to consider each of the criteria in s 19(5). The statutory penalties for armed robbery and assault occasioning bodily harm are imprisonment.

Strength of the State's case against the accused

The facts alleged by the State in respect of each offence are as follows:
At about 9.40am on Tuesday the 14th of December 2010, the accused attended the Con's Manning Fine Wines store, 19 Welwyn Avenue, Manning. The accused entered the store armed with a kitchen knife and the intention of committing an armed robbery.
The accused directly approached the counter area of the store, brandishing the knife at the manager who was seated behind the counter.
The accused told the manager that he was in possession of the knife and was willing to use it. He then stated he was going to take some alcohol.
The accused then selected a bottle of Jose Cuervo tequila valued at $44.99 from a shelf and then left the store on foot.
The manager then called Police who attended and located the accused nearby. When stopped by Police, the accused was in possession of the knife used in the offence and the stolen bottle of tequila. The accused made admissions relating to the offence and was arrested.
…
The complainant in this matter is a 51 year old female not known to the accused.
At about 9.45am on Tuesday the 14th of December 2010, the accused was walking on Welwyn Avenue, Manning.
The accused approached the complainant who was walking with a male in the direction of the accused.
The accused approached the complainant and without provocation, punched her with a clenched fist to the right side of her face. The force of the punch knocked the complainant to the ground and caused facial injuries consisting of pain, swelling, bruising and a small cut to her right cheek.
The accused then continued walking and was later stopped by Police nearby.
The witness statements and the CCTV footage from the liquor store support the State's case. The only matter which may be debateable is whether the injury suffered by the victim in count 2 amounts to bodily harm.

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

The offences are serious but, thankfully, there was no actual violence involved in the armed robbery and the value of the stolen liquor was low. Therefore the armed robbery is not a particularly serious example of an offence of that type. The assault occasioning bodily harm is a more serious example of an offence of its type even though the injury sustained by the victim was minor. It is a serious matter to make an unprovoked physical attack on a member of the public who is walking along a street.

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

Mr Sanders is nearly 27 years of age. He was 25 years old when these incidents occurred. He has no record of criminal or traffic convictions.
Dr Barbara Zawadski in her report dated 25 November 2011, at pages 2 ‑ 3, describes Mr Sanders' psychotic symptoms then goes on to state:
Otherwise he is always pleasant and polite and there have been no episodes of becoming aggressive during this admission. He has been able to keep himself reasonably fit by exercising in this gym. Mr Sanders says that he will stay in hospital for as long as he can hear voices.
Dr Zawadski stated in her report dated 27 January 2012:
He is still unable to concentrate on reading or watching television as the voices make commentaries about the books he reads or the movies he is watching. However, he is always pleasant and polite and there have been no incidents of him being aggressive towards any of the patients or the staff members since his admission to the Frankland Centre.
Dr Pascu stated in her report dated 11 September 2012:
Even though Mr Sanders remains psychotic, his behaviour during his lengthy admission to the Frankland Centre has been exemplary. There have been no incidents of him becoming aggressive toward staff or other patients and he has been totally compliant with the treatment. There have been intermittent periods of him expressing thoughts of self harm in context of wanting to get rid of the voices. At the beginning of his admission he appeared very distressed by the psychotic symptoms but as I mentioned before the only significant improvement that I noted since my previous assessment was his ability to cope with the illness despite lacking insight (10).
Mr Sanders comes from a supportive family. Prior to these incidents, his parents tried to obtain appropriate psychiatric care for their son but were not supported in doing so. Dr Pascu stated in her report dated 16 May 2012:
The family was never offered the option of their son receiving inpatient treatment … Mr Sanders' family requested for more intensive psychiatric follow up by the Bentley Mental Health Service and they have also requested input from the emergency psychiatric services but unfortunately they were not provided, what I would call appropriate care (5).
Dr Pascu and Dr Zawadski both believe that Mr Sanders started to develop his mental illness at about the age of 17 or 18. While in the prodromal phase of the illness, Mr Sanders completed year 12 and obtained entrance to university. He changed courses at university and was unable to maintain focus. Despite his efforts, he did not complete any degree.
In her report dated 16 May 2012, Dr Pascu relates Mr Sanders' mother's account of his childhood:
His mother described him as 'a bright kid, social throughout primary school; a good team participant and A student all along'. Mr Sanders started primary school in Kalgoorlie and was academically above average, with many friends which he now said, 'I had to sacrifice them to the Underworld'; he was good at sports and with no major behavioural difficulties towards students and teachers (6).
Thus, I accept that Mr Sanders is a man of good character whose serious mental illness caused him to commit the acts which constituted the physical elements of the offences with which he was charged. Those who are treating him having found him to be a polite, pleasant, considerate man who, despite lacking insight into the realities of his mental illness is willing to cooperate with his own treatment and is motivated by a desire to lead a normal life.
I also accept that there is a causal connection between his mental illness and the alleged commission of the offences.
Mr Sanders suffers from chronic treatment resistant paranoid schizophrenia. Dr Pascu summarises her opinion of her report dated 11 September 2012:
My opinion remains unchanged and I still believe that he presents with a clear, well documented history of a major mental illness, namely chronic, treatment resistant paranoid schizophrenia.
In my opinion the use of alcohol and illicit drugs further accelerated the onset of the psychotic disorder and with the unfortunate lack of appropriate and persistent treatment of the psychosis Mr Sanders' illness gradually and steadily progressed. It is again unfortunate that his first admission to hospital in December 2010 occurred in context of him clearly offending secondary to his underlying, untreated major mental illness.
This current admission to the Frankland Centre is his first admission to hospital, after what appears to be at least six years of worsening psychosis. As I highlighted in my previous report, this is significant as it is a well known fact in the psychiatric literature that the longer a person's mental illness is undiagnosed and untreated, the longer they will need to improve and the worse their overall prognosis (9).
Mr Sanders' mental condition has improved to some extent while in custody at the Frankland Centre. Dr Pascu stated, in her report dated 11 September 2012:
In January 2012, Mr Sanders was given eight treatments of ECT (electroconvulsive therapy) which appears to have been beneficial as an adjunct to his current treatment which also includes a mood stabiliser (Sodium Valproate) and another oral antipsychotic (Amisulpride). With the current combination of antipsychotic and mood stabilising medications, the treating team and Mr Sanders have noted an improvement in his mental state, acknowledging though, that he remained thought disordered and psychotic.
Since my previous interview with Mr Sanders in May 2012, the dose of Clozapine was increased in small increments given the various adverse effects from the medication. He remains psychotic but his behaviour appears to be more settled and more accepting of the need for treatment despite the lack of insight. At the time of the interview Mr Sanders was on a significant combination of mood stabilising, antidepressant and three oral antipsychotic medications (5).
Mr Sanders' prognosis is poor, partly due to the long period of time during which he remained mentally ill and inadequately treated.

The public interest

The public interest involves a consideration of all factors: R v Gardiner [1999] WADC 23; R v Watson [2000] WADC 235. The public interest includes the interest in bringing suspects to trial, the interest in seeing convicted persons punished, the interest in victims observing the redress inherent in the criminal process, the interest in the disclosure of the perpetrator, the interest in protecting the public from the risk of further offending, the interest in seeing the mentally ill receive proper treatment and the public interest in seeing the disadvantaged and disabled receive humane treatment in our community: R v Gardiner (No 3) (2000) 24 SR (WA) 136. Consideration of the public interest has also been taken to mean consideration that the effect of a custody order will mean the placement of a mentally impaired unconvicted accused in a prison: R v Garlett [2002] WADC 87.
The exercise of the discretion to make a custody order must also include taking into account the period of time an accused has spent in custody against the period of time a mentally fit offender might have served under a term of imprisonment for a comparable offence.
Mr Sanders has served a little more than 22 months in custody, albeit in a secure psychiatric facility rather than a prison. An offender of good character who pleaded guilty to these offences would be unlikely to serve more than such a period in custody.
Mr Sanders' risk assessment hinges largely upon compliance with his treatment regime. His attitude to treatment has been positive and his compliance has been exemplary since admission to the Frankland Centre.
In her latest report, Dr Pascu forecasts that Mr Sanders will remain in an authorised hospital. Her report then proceeds to outline the manner in which Mr Sanders is likely to be treated under the Mental Health Act 1996 (WA) for the foreseeable future. That manner includes Mr Sanders remaining as an involuntary patient until it is established that his mental condition has improved to such an extent that he may be released into the community under a community treated order. Once in the community he will continue to be psychiatrically treated and monitored. Mr Sanders' status as an involuntary patient under the Mental Health Act 1996 was confirmed in evidence by Ms Hicks, a social worker who has been involved with Mr Sanders and his family since December 2010.
Mr Sanders' parents have provided a letter stating that they are equipped to assist their son. In preparation for his eventual release, they are renovating their family home to accommodate their son in a granny flat, they have made allowance to work shorter hours from home to be available to him, they have educated themselves in issues relating to the care of mentally ill family members and appear prepared to manage the issues which will arise for them in caring for Mr Sanders once he is discharged from hospital.

Conclusion

I was and remain satisfied that a custody order is not appropriate having regard to the criteria in s 19(5). Determinative of this matter is the length of time which Mr Sanders has already spent in effectively custody, and the treatment plans that are in place to protect him and the community in the future.
I ordered that the indictment dated 17 May 2012 be quashed and ordered the release of Mr Sanders in the expectation that he will remain in an authorised hospital until the treating psychiatrists are of the view that he is well enough to be released under a community treatment order.