The State of Western Australia v Shepherd - [2019] WADC 170

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SHEPHERD [2019] WADC 170
CORAM:   BOWDEN DCJ
HEARD:   29 NOVEMBER & 9 DECEMBER 2019
DELIVERED          :   19 DECEMBER 2019
FILE NO/S:   IND 278 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
HAYDEN SHEPHERD

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:

Accused medically unfit to stand trial
Custody order

Representation:

Counsel:

The State of Western Australia	:	Ms G Colborne
Accused	:	Ms F A Cain

Solicitors:

The State of Western Australia	:	The State Director of Public Prosecution
Accused	:	Cathal Smith Legal

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
The State of Western Australia v Chokolich [2018] WASC 220
The State of Western Australia v S U [No 2] [2017] WADC 20
The State of Western Australia v Tax [2010] WASC 208
The State of Western Australia v T-S [2019] WADC 40

BOWDEN DCJ:

Mr Shepherd is charged with four counts of indecently dealing with a child under the age of 13 years by touching her vagina.
The offences are alleged to have occurred between 7 June 2017 and 9 July 2017.

Issues before the court

An issue has arisen as to whether Mr Shepherd is mentally unfit to stand trial as defined in s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act).
The State agrees with the defence's submission that Mr Shepherd is unfit to stand trial and will not become fit to stand trial within the next six months.
However, even if expert psychiatrists and psychologists agree that an accused is unfit to plead, it is the court's duty to the public, the complainant of serious sexual offending and the accused to rigorously examine the evidence of the experts and reach its own conclusion.
Whilst a court should be cautious in drawing conclusions, contrary to the unanimous expert evidence, the court is entitled to reject an expert's evidence if there is other evidence of circumstances that throw doubt on the expert's report. Simply put, irrespective of the concession by the State, it is for the court to determine whether Mr Shepherd is fit to stand trial: The State of Western Australia v T-S [2019] WADC 40.

The evidence

The most recent and relevant medical reports in respect of Mr Shepherd are:
1.The report of Dr Vuletich (clinical neuropsychologist) dated 4 September 2018.
2.The report of Dr Bala (consultant psychiatrist) dated 14 January 2019.
3.The report of Dr Wojnarowska (consultant psychiatrist) dated 2 June 2019.
I have also considered the prosecution brief, the affidavit of Ms Tammy Shepherd affirmed on 29 November 2019, Mr Shepherd's written submissions of 19 November 2019 including the material referred to therein being the individual plan prepared by Community Services, the letters from Department of Communities, Sexuality Education Counselling and Consultancy Agency (SECCA), Holyoake and their further written submissions of 1 December 2019 and the State's written submissions of 18 November 2019.
Mr Shepherd's mother Ms Tammy Shepherd gave evidence at the hearing. She confirmed that her son had attended the SECCA programme every fortnight since 20 June 2019. On each occasion he sees the same counsellor. She said his social interaction has improved and his aggressive behaviour has lessened since the counselling started.
She also confirmed that he had attended a number of counselling sessions at Holyoake but ceased as he was advised that he no longer required counselling and was advised it was always available if needed.
Ms Shepherd said that her son attended Intelife counselling every Tuesday from 9.00 am to 3.00 pm and that assisted him with independent living, social interaction, cooking, budgeting and life skills.
In addition, she said that he spent considerable time with his friend of six months, Ms CF and saw her approximately three to four times per week and spent time with his friend Shane who he had known since 2010.
She confirmed that her son had moved out of the home in 2013 for the first time because he wanted to see if he was able to cope in the outside world. She agreed that he coped for a little while but then got into trouble with drugs and alcohol.
She said that he has been residing with her and her partner in the family home and would remain there for the foreseeable future which she described as 10 years or more. She acknowledged that he ultimately desired to move out of the house and live independently.
She confirmed that her sister and sister's daughter who was aged 11 resided with them in the same house as her son for a couple of months during 2018. She said she asked one of her other sons to leave the house some time ago because of his aggression and because he would not do as he was told and had assaulted her.
She said that her son should not have unsupervised access to children. She said that as a result of being assaulted, when the alleged incident was disclosed, he suffered from bleeding on the brain which did not require surgery, although surgery was required for damage occasioned to his cheek.

The law

Unfitness to stand trial is determined pursuant to the Act.
The Act provides that an accused is presumed to be mentally fit to stand trial until the contrary is found: s 10(1).
The question of whether an accused is not mentally fit to stand trial is to be decided by the balance of probabilities. A judge can inquire into that question and inform himself in any way he thinks fit: s 12(1).
Section 9 of the Act provides that a person is mentally unfit to stand trial if, because of mental impairment, he 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 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 from the reaction of a healthy mind to extraordinary stimuli: s 8.
As can be seen s 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 Mr Shepherd being unable to meet any one of the criteria in s 9(a) ‑ s 9(g). If so, Mr Shepherd would be mentally unfit to stand trial.
If Mr Shepherd is found to be mentally unfit to stand trial he may be subject to a custody order, even though he has not been convicted of any offence if the criteria in s 19(5) is satisfied: R v Robson [2001] WADC 133 or he may be released under s 19(4).
Ordinarily it is in the interest 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 Mr Shepherd suffers from a mental impairment.

Does Mr Shepherd suffer from a mental impairment?

Dr Vuletich believed that Mr Shepherd met the diagnostic criteria for a mild intellectual disability on the basis of his current cognitive profile, current evidence of intellectual impairment, history of development delays confirmed by his mother and documented in the medical material, together with current information ratings of impaired adaptive functioning.
Dr Vuletich said Mr Shepherd's diagnosis satisfied the definition of mental impairment within s 8 of the Act. She also noted that there appeared to be additional factors contributing to his mental impairment, namely untreated Attention Deficit Hyperactivity Disorder (ADHD) and possible head injuries suffered in mid‑2017.
Dr Vuletich noted that a current independent neuropsychological assessment revealed a pattern of fairly generalised cognitive impairment across each of the domains assessed. Specifically results indicate the following:
1.Generalised intellectual ability estimated to fall within the extremely low range, i.e at the level expected of someone with an intellectual disability.
2.Impaired basic verbal and visual attention.
3.Impaired verbal working memory capacity.
4.Generalised psychomotor slowing.
5.Impaired acquired verbal knowledge and verbal fluency.
6.Preserved basic perception, through impaired capacity to integrate more spatially complex material.
Dr Bala said Mr Shepherd suffered from a mild intellectual disability in the context of microcephaly from childhood. Dr Bala said the intellectual disability met the definition of mental impairment within the Act.
Dr Bala based his diagnosis of intellectual disability on significant limitations in adaptive functioning in at least two of the following areas: communication, self‑care, social/interpersonal skills, academic skills, work/leisure, health and safety.
Dr Bala's diagnosis was also based on deficits in general intellectual functioning as evidenced by the measurement of his intelligence quotient.
Dr Bala also concluded that Mr Shepherd has a historical diagnosis of ADHD and said that neuropsychological testing revealed impairment in a major neurocognitive domain.
In Dr Bala's opinion ADHD was a secondary effect to the underlying intellectual disability.
Dr Wojnarowska's report addressed Mr Shepherd's risk of re‑offending and therefore did not directly address the issue of his mental impairment.
I am satisfied on the balance of probabilities based on the reports of Dr Bala and Dr Vuletich that Mr Shepherd does suffer a mild intellectual disability and this is a mental impairment within the meaning of the Act.

Does Mr Shepherd meet any one of the criteria set out in s 9(a) - s 9(g) of the Act?

The mere existence of a mental impairment does not of itself prevent a person from being brought to trial: Eastman v The Queen.
Mr Shepherd is only unfit for trial if the mental impairment results in one of the s 9 criteria are met.
A person cannot escape a trial simply by showing that he is of low intelligence. It is not necessary for Mr Shepherd to have a complete understanding of the course of the trial or to understand the evidence presented by the prosecution in detail. Nor does he have to understand the law and its application to the facts of the case.
The test is not to be applied as if Mr Shepherd is unrepresented. The tests take into account that Mr Shepherd is being represented by a competent counsel.
It is the ability of an accused to properly defend the charge assisted by counsel which is the relevant question: Ngatayi v The Queen (1980) 147 CLR 1.
The test is not a demanding one however:
… [He] must … have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of facts known to the court and to his counsel, if any.

(R v Dunne [2001] WASC 263 [10]; R v Presser [1958] VR 45, 48.)

If the accused realises in general terms what it is to be put on trial and can make sense of the evidence against him, he 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 District Court is experienced in dealing with witnesses and accused persons who suffer disadvantages due to age, low intelligence or for other reasons are vulnerable and has processes in place to ensure that the inherent disadvantage suffered by intellectually impaired witnesses and accused is reduced: The State of Western Australia v T‑S.
The court processes includes guidelines to assist counsel with the questioning of such witnesses and the court can take breaks to ensure an accused does not become unacceptably overwhelmed. The trial judge ultimately controls the questions put to witnesses and the accused and is in a position to ensure that questions are simple and not confusing: The State of Western Australia v T‑S.
It is not necessary where the accused is represented by counsel that the accused alone must be able to mount a defence: Ngatayi v The Queen. It must be taken into account that the accused will be assisted by counsel.

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

Dr Bala said Mr Shepherd appeared to understand the charge at a basic level in keeping with his level of intellectual disability. He had a basic understanding of consent.
Dr Vuletich said that Mr Shepherd was able to demonstrate very cursory knowledge of the indexed charges but could not provide specific detail about each allegation as outlined within the statement of material facts.
Dr Vuletich said that given Mr Shepherd's deficits he may struggle to retain all of the details in order to fully understand the charges. There might be scope to apply some strategy to enhance his memory of the detail in each of the charges.
I am satisfied that Mr Shepherd, with legal assistance, is able to understand the nature of the charge. Dr Bala says that Mr Shepherd has an understanding at a basic level. Dr Vuletich said that while he may struggle to retain all the details, there is scope to enhance his memory of the detail of each of the charges. I am satisfied that this can be done with legal representation.

Is Mr Shepherd unable to understand the requirement to plead to the charge or the effect of a plea pursuant to s 9(b) of the Act?

Dr Bala said that Mr Shepherd understood the requirement to enter a plea but did not understand the consequences of doing so. He was not able to describe the consequences of a not guilty plea and became overwhelmed when considering the issue.
Dr Vuletich said that Mr Shepherd appeared to have some concept of the basic concepts of guilty and not guilty but did not seem to possess knowledge of the effect on proceedings of entering a plea. She was of the opinion that given his capacity to learn new material by repetition further education could assist him to acquire the knowledge.
I am satisfied that Mr Shepherd understands the requirement to enter a plea and with the benefit of legal assistance understands the effect of a plea. This is consistent with Dr Vuletich's and Dr Bala's opinions.

Is Mr Shepherd unable to understand the purpose of a trial pursuant to s 9(c) of the Act?

Dr Bala stated that Mr Shepherd was unable to understand the purpose of a trial. Dr Bala said Mr Shepherd was unable to explain how a judge or jury would determine who was right and stated that there was no evidence to incriminate him.
Dr Vuletich said that at a basic level Mr Shepherd would be able to understand the purpose of hearing evidence, weighing this up and determining guilt or innocence given simple, clear and repeated education.
Dr Bala's opinion seems to be based on his conclusion that Mr Shepherd was unable to explain how a judge or jury would determine who was right. In my view, this is not an appropriate basis to conclude that Mr Shepherd is unable to understand the purpose of trial. I prefer Dr Vuletich's evidence that at a basic level he is able to understand the purposes of a hearing given simple, clear and repeated education. I am satisfied that Mr Shepherd is able to understand the purpose of a trial.

Is Mr Shepherd able to understand or exercise the right to challenge jurors pursuant to s 9(d) of the Act?

Dr Bala's opinion was that Mr Shepherd did not understand what a jury was and would have difficulty exercising his right to challenge jurors and would be reliant on counsel to do so on his behalf.
Dr Vuletich said that Mr Shepherd did not have awareness or understanding of a jury or his right to challenge jurors although he seemed to grasp the basic premise when this was explained to him. Dr Vuletich noted that given Mr Shepherd's significant attention deficits and his poor reasoning and planning he may not spontaneously recognise the relevance of challenging a jury in the time period required without significant support or guidance.
I am satisfied that with legal assistance Mr Shepherd would be able to understand and exercise his right to challenge jurors. Dr Bala has approached the position from the viewpoint of Mr Shepherd being unaided by legal representation. Dr Bala states that Mr Shepherd would need to rely on counsel to do so on his behalf. This does not mean that the criteria is therefore fulfilled.
Dr Vuletich says that Mr Shepherd understands the basic premise of a jury and his right to challenge when it was explained to him. She was concerned that he may not understand that he has to exercise his right of challenge in effect before the juror takes the oath. Mr Shepherd could be assisted in this regard by his legal counsel and could be assisted by the court providing, for example, that Mr Shepherd could sit next to his legal counsel so that specific instructions in relation to each juror can be obtained.
I am satisfied that Mr Shepherd is able understand or exercise his right to challenge jurors.

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

Dr Bala said that Mr Shepherd would have difficulty following the course of a trial given his significant attention and cognitive impairment as described by the neuropsychologist.
Dr Bala said that Mr Shepherd was vague, indifferent, withdrawn and became overwhelmed and unable to answer simple questions and gave inconsistent information without becoming aware of the internal inconsistencies.
Dr Vuletich said that as a result of the deficits in Mr Shepherd's ability to sustaining attention and his attention span, working memory core, verbal knowledge, speed of processing and executive functioning it would be extremely difficult for Mr Shepherd to follow and understand proceedings. She said it was unclear whether there would be sufficient improvements in his general cognitive proficiency with pharmacological treatment, nor was she able to say what impact that treatment may have on his capacity to follow the course of the trial.
I accept the evidence of both Dr Bala and Dr Vuletich that Mr Shepherd would not be able to follow the course of trial because of his significant attention and cognitive impairment.

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

Dr Bala said that Mr Shepherd would not be able to understand the substantial effect of evidence presented by the prosecution given his significant cognitive problems.
Dr Vuletich said that Mr Shepherd was not able to demonstrate any knowledge of different types of evidence in general or specifically, aside from recognising that his verbal testimony and that of the alleged victim, would be weighed up against each other. She said his attention deficits and weak language skills, together with his impaired problem solving and reasoning abilities could impede his capacity to fully grasp the implications of certain evidence.
I accept the evidence of Dr Bala and Dr Vuletich that Mr Shepherd would be unable to understand the substantial effect of evidence presented by the prosecution as a result of his significant cognitive problems.

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

Dr Bala said that Mr Shepherd would not be able to properly defend the charge given his cognitive impairment. Dr Bala said that Mr Shepherd was not able to describe the defence that he would rely upon.
Dr Vuletich said Mr Shepherd had deficits in intellectual impairment, poor attention regulation, and limited attention and working memory capacity. Mr Shephard's wide spread neuropsychological impairment include deficits in processing speed and core language, unreliable memory encoding and general executive dysfunction which impact both his expressive and receptive language.
Dr Vuletich said that in combination Mr Shepherd lacked the ability to remain sufficiently focused, identify relevant information and filter out less relevant or intrusive material. She said he lacked the ability to juggle information in his mind, comprehending what is presented, consider and weigh relevant facts, effectively communicate and instruct his lawyer, reason through and appreciate the potential impact of any instruction or appreciate potential outcomes more broadly.
Dr Vuletich said that Mr Shepherd's disorganised thought and speech are likely to pose significant barriers to his capacity to provide a coherent and reliable verbal testimony as well as his ability to respond meaningfully to questions. She was of the opinion that he would be unable to properly defend the charge.
I am satisfied that on the balance of probabilities that Mr Shepherd is unable to properly defend himself even with the benefit of legal representation because of his cognitive impairment.

Conclusion on s 9

To be fit to stand trial Mr Shepherd must have sufficient capacity to be able to properly follow the course of the evidence, understand the substantial effect of evidence presented by the prosecution and properly defend the charge.
I am satisfied that Mr Shepherd meets each of the s 9(e), (f) and (g) criteria. Mr Shepherd need only fulfil one of the criteria to be found unfit to stand trial. I find that he is not mentally fit to stand trial.

The consequences

As I have found that Mr Shepherd is not mentally fit to stand trial it is necessary to consider whether he may become fit within six months.

Is the court satisfied that Mr Shepherd will be become mentally fit to stand trial within six months?

This question was specifically addressed by Dr Vuletich who stated that in her opinion Mr Shepherd was unlikely to become mentally fit to stand trial within six months without appropriate treatment and was not able to reliably answer whether he would become fit with appropriate treatment.
Dr Vuletich noted that the suggested treatment related to his attention deficits and not his intellectual disability and expected that Mr Shepherd would continue to experience some limitations by virtue of his intellectual impairment.
Dr Bala stated that in his opinion Mr Shepherd would not improve in the next three to six months and he was likely to be permanently unfit to plead and stand trial.
I am satisfied that Mr Shepherd will not become mentally fit to stand trial within six months of today's date.

Custody order or release?

I am satisfied that Mr Shepherd will not become mentally fit within six months and accordingly the court must quash the indictment without deciding the guilt of Mr Shepherd and either release him or make a custody order: s 19(1) and s 19(4) of the Act.
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 against him;
(b)the nature of the alleged offence and alleged circumstances of its commission;
(c)Mr Shepherd's character, antecedents, age, health and medical condition; and
(d)the public interests.
If a custody order is made within five days the Mentally Impaired Accused Review Board (the Review Board) established under the Act must review Mr Shepherd's case and determine the place where he is to be detained. Until that decision is made Mr Shepherd is detained either in an authorised hospital, a prison or detention centre: s 25.
Once a custody order is made Mr Shepherd must be detained in an authorised hospital, a declared place, a detention centre or a prison as determined by the Review Board. Mr Shephard is detained in one of those places until released by an order of the Governor.
A release order can be made unconditionally or on conditions including conditions relating to undergoing specific treatment, residing at a specified place and complying with lawful directions from a supervising officer: s 35(3) and s 35(4).
A person detained subject to a custody order may be granted a leave of absence by the Governor following a recommendation from the Review Board to the Minister for a period not exceeding 14 days at any one time, conditionally or unconditionally, as determined by the Review Board: s 27, s 28.
Conditions imposed may include conditions relating to undergoing specific treatment, residing at a specified place and complying with lawful directions from a supervising officer: s 28(4).
In order to be detained at a 'declared place' the Minister for Disability Services must consent and a 'Disability Services' member of the Review Board must be present at the Review Board when the decision to detain him at a 'declared place' is made: s 24(5A), s 24(5B) and s 24(5C).
It is common ground between the parties that there is only one declared place in this State.
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless he has a mental illness that is capable of being treated: s 24(2). He cannot be detained in a detention centre unless he is under 18.
The other option to a custody order is to order that Mr Shepherd be unconditionally released. The court is not empowered to make an order conditionally releasing Mr Shepherd with, for example, a condition that he reside at some particular location and be subject to specific treatment or that he not have unsupervised contact with children.
This deficiency in the Act has been the subject of comments in other cases: The State of Western Australia v Chokolich [2018] WASC 220 (Hall J).
In this case each of the four alleged offences is punishable by imprisonment as the maximum penalty is 10 years imprisonment for each offence.
A custody order cannot be made without consideration of the relevant s 19(5) factors.

The strength of the evidence

The complainant

The complainant was eight years old at the time of the alleged offences.
She participated in a child witness interview and said that the accused touched her vagina lots of time.
In respect to count 1, she said that she was sitting with the accused on her bed at LC's house playing a game on his phone when he put his hand on her vagina. She tried to push his hand away but he pushed her hand away. She said he wobbled her vagina.
In relation to count 2, she said the accused then placed his hand back on her vagina again under her clothes.
In relation to count 3, she said this occurred at a house in Manjimup when she was sitting with the accused in separate chairs watching television. The accused put his hand under her tights and touched her vagina, wobbling and squishing her vagina with his hand until she pushed his hand away.
In relation to count 4, she says this happened in the lounge room. The accused picked her up, spun her around, tickled her, put his hand on her vagina and was 'mashing it'. She said it felt weird and it hurt. She asked him to stop and he put her down. She ran off, locked herself in her bedroom and pretended to be asleep.
As is often the case in allegations of sexual offending, the complainant's evidence is the only direct evidence that Mr Shephard committed the alleged offences.

Ms MB

The complainant's mother says that she had noticed behavioural changes in the complainant.
As a result of a leading question asked by Ms MB the complainant told her she had been touched. There may be arguments as to whether this evidence is admissible as recent complaint evidence based on it being a response to a leading question and not being recent at least in relation to some of the offences. Ms MB was also aware that the accused was in emotional turmoil having been assaulted shortly before she asked the questions of the complainant.

Ms MB's second statement

In an additional statement provided Ms MB states Mr Shepherd had made several comments to her that he wished to be in a relationship with her and wished to adopt the complainant. She further states that he was constantly asking the complainant to sit next to him and asking her to accompany him alone to a local petrol station. He made remarks to her that he missed the complainant.

Mr JG

Mr JG was charged with assault occasioning bodily harm against Mr Shepherd. The circumstances being that on 9 July 2017 he allegedly assaulted Mr Shepherd. Mr JG says he had drunk 19 Carlton Dry stubbies and was drunk but not heavily intoxicated and said that Mr Shepherd appeared to be drunk.
Mr JG says he asked why Mr Shepherd had not had sex with the complainant's mother and then asked him why he had not had sex with the complainant. Mr Shepherd replied, anything could happen. When he asked the direct question as to whether he would like to have sex with the complainant, Mr Shepherd is alleged to have replied again, anything could happen.
Mr JG says Mr Shepherd said that when the complainant sat on his lap, he got hard. Mr JG then asked him if he would have sex with the complainant tonight, to which it is alleged Mr Shepherd replied yes. Mr JG repeated the question on several occasions and on each occasion, he alleges Mr Shepherd replied that he would have sex with the complainant. Mr JG says this angered him and he started punching and kicking Mr Shepherd.
Mr JG also says that he observed some inappropriate interactions between Mr Shepherd and the complainant but provides little detail of those interactions.
The State advised the court that Mr JG has been charged with two counts of indecent dealings, the alleged offences occurring on 2 June 2019 and 14 September 2019 and involved the same complainant on each occasion. That complainant is not the same complainant Mr Shepherd is alleged to have offended against.
In relation to the 2 June 2019 incident the victim was aged 12 and Mr JG was 31.
It is alleged that while the complainant was sleeping in a bed with Mr JG he touched and squeezed her breasts over her clothing and then his hand moved down towards her pelvic region and he touched her vagina on the outside of her clothing. Mr JG denied to the police that he committed this offence.
In relation to the incident on 14 September 2019 the complainant was aged 13 and her mother was in hospital. Mr JG was looking after her. The two of them were laying in the same bed when it is alleged that Mr JG pulled her up against him so that her breasts were pressing against his body, tried to undo her bra, wrapped his legs around her, squeezed her buttocks and pushed his groin into the area of her vagina. When spoken to by the police Mr JG denied the commission of these offences.
The defence rightly point out they would be entitled to cross‑examine Mr JG at any trial as to his behaviour on those two dates. They would however be bound by his answers. His behaviour on those dates coupled with his actions in savagely assaulting Mr Shepherd could affect his creditability before the jury and particularly the creditability of his evidence of the statements allegedly made by Mr Shepherd to him.

Ms PC

Ms PC is a neighbour of Mr Shepherd. She says that Mr Shepherd was always buying things for the complainant and would not leave her side. He was always sitting next to the complainant and putting his arms around her. She noticed that he did not want to sleep in his bedroom and would drag his mattress out into the lounge room. She saw the complainant lying next to him on at least one occasion.
Ms PC refers to an occasion when Mr Shepherd asked the complainant if she wanted to play a game on his phone and the complainant sat across his knee and he put his arms around her. She said Mr Shepherd asked if he could buy the complainant some bathers so he could take her swimming, notwithstanding that the weather was cold. He also asked if the complainant could sleep over at his house.
Ms PC says that Mr Shepherd tried to take the complainant to the park on one occasion.

Ms LC

Ms LC is Ms PC's daughter. She says she noticed that Mr Shepherd had picked the complainant up on many occasions and cuddled her and asked more than once if he could take her swimming.
She says that she heard Mr Shepherd say to Mr JG that when the complainant sat on him, he got hard.
Ms LC witnessed part of the fight between Mr Shepherd and Mr JG. She also says she spoke to the complainant who told her that Mr Shepherd put his hands inside her pants. She also said she assaulted Mr Shepherd when she heard the allegations.

Ms LC's second statement

Ms LC says in her second statement that she noticed a few odd things between Mr Shepherd and the complainant. She said Mr Shepherd seemed very attached to the complainant and would always cuddle her, put her on his lap or lay next to her. She says on one occasion she saw him walk out of the complainant's bedroom.
Ms LC said there were occasions where she saw the complainant and Mr Shepherd lying on the couch or the complainant sitting on his lap or on Mr Shepherd's bed with him. Ms LC says that there was an occasion where she saw the complainant playing on Mr Shepherd's mobile phone. She also thought on one occasion Mr Shepherd was lying under a rug on the bed and she was lying on top of the rug.

Mr SJ

Mr SJ describes hearing noises which on the State's submission, came from the fight between Mr JG and Mr Shepherd. Apart from that his evidence adds little.

Police evidence

Various police officers say they spoke to Mr JG about his assault on Mr Shepherd and Mr JG made certain allegations against Mr Shepherd. Other police officers provide statements that are largely hearsay.

Mr Shepherd's interview with police

During his interview with the police, Mr Shepherd denied the offending and denied that he was sexually attracted to the complainant. He told the police he was friends with the complainant and they would hang out. Occasionally he would take her to school and sometimes carry her on his back.
Mr Shepherd told the police the complainant would sometimes stay in his bedroom and she would play on his phone and sit on his lap. He said that he could not recall saying to Mr JG that he got an erection when the complainant sat on his lap or he would like to have sex with her but maintained that he would not have said those things in any event. He gave no reason as to why Mr JG bashed him and stated that previously they had been friends.
The defence argue that there are issues with the caution given by the police and say that Mr Shepherd was not given the right to 'a reasonable opportunity to communicate or attempt to communicate with a lawyer' as required by s 138(2)(c) Criminal Investigation Act 2006 (WA).
Even if Mr Shepherd's interview with the police was ruled inadmissible it would not affect the strength of the State's case because in my view Mr Shepherd's interview is favourable to him. He denies the offending and the interview is exculpatory.
The State's case consists of direct evidence from the complainant that the offences occurred, 'relationship type' evidence from Ms MB, Mr JG, Ms PC and Ms LC, that is evidence that shows that the accused had a sexual interest in the complainant but which by itself would not be sufficient to justify a conviction. Included in this is the evidence from Mr JG that Mr Shepherd said he was sexually aroused by the complainant.
The State's case is strong but not overwhelming. The relationship evidence is given by witnesses whom the defence could clearly argue were biased against Mr Shepherd and their evidence on some of the instances that they have referred to is somewhat vague and consists more of their impression then their observations. This would provide fertile ground for cross-examination.
Mr JG's credibility in the circumstances that he allegedly abused a young girl on 2 June 2019 and 14 September 2019, and his actions in allegedly savagely beating Mr Shepherd may be, at least in the minds of some jurors, doubted.
The courts experience in sexual cases is that on occasions juries acquit in cases where the State consider they have a strong case and, on other occasions where there is literally one person's oath against the other they convict.
There is sufficient evidence that, if accepted by the jury, could lead to Mr Shepherd being convicted, however, the case against him is strong but not overwhelming.
Mr Shepherd concedes in his written submissions that the State's case is strong.

The alleged offence and alleged circumstances of its commission

The nature of the offending is sexual offending alleged against a complainant who was eight years of age by Mr Shepherd, who was then aged 24.
It is alleged that the offending occurred on three separate occasions and involved an element of grooming. The actual offences involved touching the complainant's vagina under her clothing. The circumstances generally surrounding the offending are that Mr Shepherd was staying at the same residence as the complainant or was visiting the complainant's mother with friends.
It is not disputed that the offences are serious and if Mr Shepherd was convicted, immediate imprisonment is likely to be the only appropriate disposition.

Mr Shepherd's character, antecedence, age, health and medical condition

Mr Shepherd is currently 26. He was 24 at the time of the alleged offences. He has a criminal record consisting of two offences of possessing cannabis, one of using cannabis and four offences of possessing drug paraphernalia. His mother's evidence was that when he lived independently he had some issue with drugs and alcohol. He has no convictions for sexual offences.
Dr Vuletich and Dr Bala's report clearly establish that Mr Shepherd has an intellectual disability by way of a generalised cognitive mental impairment, a history of microcephaly, well documented delays in language and fine motor skills, ADHD with conduct and behavioural issues from an early age.
It is noted that Mr Shepherd's mental fitness is not likely to improve because a primary issue is a cognitive malfunction of the brain, which has resulted in an intellectual disability and cognitive difficulties. In addition, he has ADHD.
The evidence established that at the time of the offence Mr Shepherd was living independently but is now living with his mother, who manages his finances. Mr Shepherd is engaged in ongoing counselling with SECCA and Intelife aimed at developing his social interactions. He is supported by the Department of Communities.
He has participated in counselling from Holyoake in the past. Mr Shepherd has strong and consistent support from his mother.
Dr Wojnarowska diagnosed Mr Shepherd with paedophilia, attracted exclusively to females.
Dr Wojnarowska says that Mr Shepherd's paedophilic interest in children and his impaired ability to form age appropriate relationships are the main risk factors in terms of him committing further sexual offences.
Dr Wojnarowska says that Mr Shepherd has high treatment needs in this area, including a sexual offender treatment programme for people with disabilities, individual counselling with focus on sexual education, community skills and development of mature coping strategies and his devout sexual interest in children requires further exploration and treatment.
Dr Bala says that Mr Shepherd needs supervision and monitoring, social support, social training and education regarding social relationships and boundaries from a qualified psychologist, specialising in the field of intellectual disability.

The public interest

When considering the public interest, it is relevant to consider the effect of the custody order, the risk posed by the accused committing an offence if released, the danger posed to the community by the risk, the dignity and rights of the accused and his rehabilitation: The State of Western Australia v S U [No 2] [2017] WADC 20 (Chief Judge Sleight).
There is no doubt Mr Shepherd suffers an intellectual disability. In addition he has been diagnosed with paedophilia with a sexual interest in young girls and has high treatment needs.
In Dr Wojnarowska's opinion, people with intellectual disabilities are more likely to engage in non-consensual sex due to their inability to form age appropriate relationships.
The result of the court making a custody order is that that order remains in place until discharged by the Governor. The Review Board is required to report to the Minister once per year and recommend whether an accused should be released. The Governor may make a release order at any time order with or without conditions.
It is accepted by the State that the Act only provides the court with two choices being either unconditional release or a custody order. There is no conditional release order which could provide for supervision in the community: The State of Western Australia v Tax [2010] WASC 208 (Martin CJ.)
The State accepts that a second deficiency in the legislation is the limited options as to where an accused can be detained if the custody order is made. Section 24 of the Act provides that a person is to be detained in an authorised hospital, a declared place, a detention centre or a prison as determined by the Review Board until released by order of the Governor.
Under s 24(3) an accused cannot be detained in an authorised hospital unless he has a mental illness which requires treatment. An involuntary treatment order under the Mental Health Act 2014 (WA) can only be made in respect of a person who suffers a mental illness. Mr Shephard does not have a mental illness, he suffers from a mental impairment. Mr Shepherd could not be detained at a detention centre because he is over 18. If a custody order is made he will be detained in a prison or declared place.
It appears that the minister for Disability Services will not approve the placement in a declared place of a person charged with a crime committed against a child. This in effect means that if a custody order is made Mr Shepherd will be detained in a prison.
On the other hand if a release order is made conditions cannot be imposed.
Dr Wojnarowska says that a community disposition allows for a broader range of interventions. Dr Wojnarowska says that with funding from Disability Services and the support from his mother, the risk that the accused poses could be managed in the community.
Dr Wojnarowska also says that Mr Shepherd's disability places him at risk of exploitation and manipulation by other sexual offenders if placed in custody and that if he was placed in custody he would not have access to important risk reduction and resocialisation programmes.
Dr Wojnarowska says Mr Shepherd could be managed in the community and he posed a low risk of committing similar offences if he engaged in a recommended treatment programme.
Dr Wojnarowska says that Mr Shepherd is unlikely to approach a stranger child in the street but, is more likely to engage in grooming behaviour over time. She says he should not have unsupervised access to children under 16 and ought not to be placed in custody, prison, or a mental health hospital.
Dr Bala said that being put into a custody environment would weigh heavily on Mr Shepherd and he would be vulnerable to exploitation and harm in such a setting.
In relation to the public interest protecting young girls from harm is a paramount consideration, particularly where Mr Shepherd has been charged with four sexual offences against an eight year old child involving touching that child and has been diagnosed with paedophilia.
The State say the risk that Mr Shepherd poses to young girls is too great and is a risk which should not be borne by the community. The State say that any detrimental effects Mr Shephard may incur because of a custody order is outweighed by the public interest in protecting females.
The State say orders relating to supervising and monitoring Mr Shepherd in the community and enforcing his treatment programmes are required.
The defence says that to make a custody order is draconian, unjust and will be counter-productive. They point out that Dr Wojnarowska and Dr Bala say imprisoning Mr Shepherd is likely to have a deleterious effect on him and would lessen any prospects of rehabilitation and therefore increase the risk of offending once he is released in the community. The defence say that to make a custody order would be contrary to the rights and dignity of Mr Shepherd and would deprive him of the best possible treatment and care.
The defence say that Mr Shepherd has made significant changes to his behaviour. He is now supervised by his mother and has no contact with children. He is engaging in counselling and educational services are available to him and he plans to continue with these services in the future. Therefore, they say Dr Wojnarowska's opinion that he is at a low risk of offending ought to be accepted.
The defence say the public interest is that people with mental illnesses should be provided with the best possible treatment and care and with the least restriction of their freedom and their rights and dignity. The defence say that Mr Shepherd's continued rehabilitation is best achieved in the community.

Conclusion

Mr Shepherd was diagnosed with microcephaly at the age of 13 and with ADHD as a child and he clearly has an intellectual disability. He is registered with the National Disability Insurance Scheme and is case managed by that service. His finances are managed by The Public Trustee and his mother is his legal guardian. He is unemployed and supports himself on disability pension.
He attends counselling at SECCA and is involved with the disability support group Intelife.
Dr Wojnarowska says Mr Shepherd has major cognitive distortion such as denial, justification and minimisation of his inappropriate behaviour and distorted views about children and the issues around their sexuality. Mr Shepherd denies that he has any 'problem'.
Mr Shepherd has been diagnosed with paedophilia, attracted exclusively to females and the presence of that sexual interest in children is the most important risk factor in this case. He has high treatment needs which are described by Dr Wojnarowska as extensive and requires resocialisation and specific offence targeted treatment
Mr Shepherd's intellectual disability is a complicated factor. In Dr Wojnarowska's opinion individuals with intellectual disabilities are more likely to engage in non‑consensual sex due to their limited ability for age appropriate sexual interactions and communications.
Mr Shepherd has limited insight into the factors associated with his offending but there is no evidence of persisting offending over a period of time. He does not present with strong antisocial or anti-authoritarian attributes or psychopathic traits. His mother understands that any contact with children may place her son at risk of being accused of inappropriate sexual behaviour, and other protective factors are present including his desire to do well and live an offence free life.
Dr Wojnarowska says an area of major concern is his problem with intimate and non‑intimate relationships and he has no peer group or social outlets living life somewhat as a loner.
Mr Shephard receives support from Disability Services and there are plans for him to engage a mentor who would provide support to develop his interactive and social skills. Disability Services have set aside a funding package to support Mr Shepherd in these areas.
Dr Wojnarowska says that Mr Shepherd's risk of sexual offending is related to the presence of his paedophilic interest in children and his impaired ability to form age appropriate relationships.
Dr Wojnarowska says that from a treatment outcome perspective community disposition allows for a broader range of interventions. Those interventions should include sex offender treatment programmes for people with disabilities, individual counselling with a focus on sexual education, communication skills and development of mature coping strategies. Dr Wojnarowska says that Mr Shepherd needs a resocialisation programme with specific offence targeted treatment.
Mr Shepherd is agreeable to participate in any treatment as directed by the court, he has a supportive mother prepared to offer accommodation, supervision and guidance with his management in the community and this will assist should he receive a non‑custodial disposition.
Dr Wojnarowska says that with the funding from Disability Services and the support of his mother the risk of re‑offending could be managed in the community and if the recommended treatment plan is enacted the risk of similar offending is in the low range.
Dr Wojnarowska notes that if subject to a custody order the Review Board can mandate treatment. The Review Board could impose conditions relating to restriction zones such as schools, parks, swimming pools and other places where children are likely to congregate and could also impose conditions relating to unsupervised contact with children.
With all of these interventions there is no doubt that the risk that Mr Shepherd presents can be managed in the community.
However due to deficiencies in the legislation a court cannot make a release order conditional upon Mr Shepherd attending and continuing these programmes nor can the court make orders to supervise and monitor him during these programmes.
There is no doubt that Mr Shepherd's dignity, rights and rehabilitation are best served by an unconditional release order. I accept that Mr Shephard's risk of similar offending and therefore his risk to the community is in the low range if he follows his treatment plan.
The risk that Mr Shephard poses to the community can only be removed by having conditions imposed upon him relating to undergoing programmes and treatment and restrict his contact with children.
An unconditional release order does not enable conditions to be imposed. A custody order enables the Review Board to impose restrictions relating to attending areas where children are likely to congregate and conditions relating to unsupervised contact with children, undergoing and completing resocialisation programmes, sex offender treatment programmes for people with disabilities, individual counselling, communication skills and coping strategies. Conditions could also be imposed as to where and with whom he resides.
Mr Shepherd is now residing with his mother who is clearly a responsible person, loves her son dearly and is providing great assistance and support to him. She is aware of the charges. Mr Shepherd is involved in Intelife. However he was involved in that programme between 2010 - 2013, before the alleged offences, and re‑engaged with them in 2017.
Mr Shepherd is I find currently well motivated and well supported by his counsellors and mother. He has not re-offended in the past two and a half years. He attends counselling with SECCA, which provides counselling, education and consultancy with issues relating to relationship, psychosexual education and the rights and needs of people with disabilities. SECCA address issues such as increasing skills and protective behaviours, social skills and interpersonal relationships, relationship boundaries, social - sexual concepts of personal space, social distance, cyber safety and sexuality.
Mr Shepherd has also attended individual counselling sessions at Holyoake on at least two occasions and has had a plan developed by the Department of Communities Disability Services which involves liaison on a monthly basis to ensure that he engages with the services and to understand appropriate sexual behaviours and address issues such as drug usage.
I find that with the benefit of these programmes and counselling his risk of re-offending is in the low range.
In my view, the public interest requires that there be orders to mandate that he continues with the support services and treatment programmes that I have referred to.
Mr Shepherd is alleged to have committed serious sexual offences against an eight year old girl, the State's case is strong but not overwhelming, he suffers from a mild intellectual disability which is a complicating factor and he has been diagnosed as suffering from paedophilia, his treatment needs are extensive, his deviant sexual interest in children requires further exploration and treatment and he lacks insight.
Mr Shephard's low risk of re-offending is clearly tied to the continuation of his treatment. The risk can only be managed if his rehabilitation continues in its current direction and the public interest requires that his treatment and rehabilitation be mandated by conditions imposed rather than simply relying on the goodwill of Mr Shepherd and his mother. The Review Board are best placed to determine what are the appropriate conditions relating to his access to children, his accommodation and counselling.
I accept that the dignity and rights of Mr Shepherd favour an unconditional release order and that a custody order will mean he will be detained in a declared place or a prison until determined otherwise by the Review Board.
Notwithstanding his mental impairment I conclude that a custody order is appropriate having regard to the strength of the State's case, the nature of the alleged offences, the alleged circumstances of their commission, Mr Shepherd's character, antecedents, age, health, medical condition and the public interest.
As always it is a question of balancing those considerations without giving undue prominence to any one factor. Primarily because of the nature of the offences and the circumstances of their commission, Mr Shephard's paedophilia and treatment needs and the public interest in having those treatment needs mandated and monitored I conclude that it is appropriate to make a custody order.
I quash indictment 278 of 2019 and make a custody order in respect of Mr Shepherd.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
18 DECEMBER 2019