The State of Western Australia v Stimpson

[2024] WASC 363

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- STIMPSON [2024] WASC 363

CORAM:   QUINLAN CJ

HEARD:   7 OCTOBER 2024

DELIVERED          :   7 OCTOBER 2024

PUBLISHED           :   7 OCTOBER 2024

FILE NO:   INS 111 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

LUKE JAMES STIMPSON

Respondent

Catchwords:

Criminal law – Accused unfit to stand trial for arson subject to custody order – Application to set limiting term of custody order – Custody order made under repealed legislation – Transitional provisions – Turns on own facts

Legislation:

Criminal Law (Mental Impairment) Act 2023 (WA), s 50, s 254, s 264, s 265
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 19(4)
Sentencing Act 1995 (WA), s 6, s 9AA

Result:

Limiting term set as 2 years
Proceedings adjourned pursuant to s 265(7)

Category:    B

Representation:

Counsel:

Applicant	:	A J Finn
Respondent	:	K J Farley SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

Cases referred to in decision:

The State of Western Australia v Chokolich [2024] WASC 346

The State of Western Australia v Smith [2024] WASC 361

The State of Western Australia v Stimpson [No 2] [2020] WASC 19

QUINLAN CJ:

(This judgment was delivered extemporaneously and has been edited to correct grammar and to include full references to relevant authorities.)

Introduction and overview

1. On 6 November 2017, a fire was started at the front of a vacant residence in South Hedland. The fire caused approximately $12,000 of damage to the external wall, window frame and electrical cabling of the house.

2. The following day, 7 November 2017, the respondent, Luke James Stimpson, was arrested. He was later charged with criminal damage by fire (arson) in relation to the fire the previous day. Mr Stimpson pleaded not guilty and was committed for trial to this Court.

3. It later became apparent, however, that Mr Stimpson was suffering from a serious mental illness, namely schizophrenia.

4. On 29 January 2020, Hall J found that, due to Mr Stimpson's mental illness, he was not fit to stand trial. His Honour quashed the indictment and made a custody order with respect to Mr Stimpson, pursuant to s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (repealed Act).[1]

   [1] The State of Western Australia v Stimpson [No 2] [2020] WASC 19.

5. The repealed Act was repealed by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). Pursuant to the transitional provisions of the CLMI Act, Mr Stimpson's custody order under the repealed Act (existing custody order) has effect as if it were a custody order made under pt 5 of the CLMI Act.[2]

   [2] CLMI Act, s 254.

6. Mr Stimpson has therefore been in custody, either on remand, under the repealed Act or under the CLMI Act, for 6 years and 8 months (including 4 years, 8 months and 8 days since Hall J made the existing custody order).

7. I am now required by the CLMI Act to set a limiting term for Mr Stimpson's existing custody order, being the best estimate of the term of imprisonment that the court would, in all of the circumstances, have imposed if the court were sentencing Mr Stimpson and he had pleaded guilty to the charge at the earliest opportunity and his mental impairment was not taken into account.

8. For the reasons that follow, I will set the limiting term for the custody order as 2 years. Having regard to the time spent by Mr Stimpson in custody on remand, I will also order, pursuant to s 264(3) of the CLMI Act, that the limiting term be taken to have commenced on 6 February 2018.

9. As the limiting term expired before today, in accordance with s 265(7), I will adjourn the proceedings until the Minister either applies to the court for an extended custody order under pt 7 div 5 of the CLMI Act or informs the court that such an application will not be made.

Relevant legal principles

1. The requirement to set a limiting term for a custody order is found in s 50 of the CLMI Act. I have previously set out a number of general principles in relation to both s 50 and the transitional provisions in The State of Western Australia v Chokolich[3] and The State of Western Australia v Smith.[4] I will not repeat what I said in those cases.

   [3] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich)

   [4] The State of Western Australia v Smith [2024] WASC 361 (Smith).

2. Section 50(2) of the CLMI Act requires the court to determine the 'best estimate' of the term of imprisonment that the court 'would, in all the circumstances, have imposed', based on certain assumptions. The task is necessarily a hypothetical exercise, given the assumptions that the court is required to make by both s 50(2) and s 50(3) of the CLMI Act, including that Mr Stimpson pleaded guilty to the charge of arson at the earliest opportunity and his mental impairment was not taken into account. The term of imprisonment that the hypothetical sentencing court 'would have' imposed is the sentence the court would in fact have imposed by applying the Sentencing Act 1995 (WA), and in particular s 6 of that Act, in light of ordinary sentencing principles.[5]

   [5] Chokolich [62].

3. I turn then to the best estimate of the sentence that the court would have imposed if it were sentencing Mr Stimpson for the offence of arson.

Circumstances of the charged offence

1. The State read a Statement of Material Facts for the purposes of the application and tendered a brief of evidence prepared for the purposes of the hearing. Mr Stimpson's counsel accepted those facts for the purposes of the application.

2. The Statement of Material Facts was to the following effect.

3. Sometime between 9.30 pm and 9.45 pm on 6 November 2017, Mr Stimpson attended at a vacant residence in South Hedland. The residence was owned by BHP Billiton and was used as temporary accommodation for its employees. Mr Stimpson was not associated with either BHP Billiton or the address itself.

4. Mr Stimpson placed a number of cardboard boxes in a pile at the front of the house near the carport and set them alight. The resultant fire caused $11,893.65 damage to the house's external tin wall, as well as the window frame, window seals and electrical cabling.

5. Mr Stimpson ran from the address. As he was running away a neighbour recognised him by his distinctive hairstyle as 'Luke', a man she had seen often around the local area.

6. Mr Stimpson was arrested the following morning. He participated in an electronic record of interview and made no admissions.

Mr Stimpson's personal circumstances

1. Mr Stimpson was 36 years of age at the time of the alleged offence. He is now 43 years of age.

2. Mr Stimpson has a prior criminal record, although it was a relatively minor one, and at the time of the alleged offence he had not offended for many years. While a court sentencing Mr Stimpson would not increase his sentence because of his prior offending, he would not have been sentenced as a person of prior good character.

3. Mr Stimpson also has a history of substance abuse but there was nothing to suggest that he was intoxicated at the time of the alleged offence.

4. As I must arrive at the best estimate of the term of imprisonment without taking into account Mr Stimpson's mental impairment, I will eschew any particular finding as to his state of mind in committing the offence. In the circumstances, Mr Stimpson would have been entitled to the maximum discount of 25% off the head sentence for his plea of guilty at the earliest opportunity pursuant to s 9AA of the Sentencing Act 1995 (WA).

Best estimate of the sentence that would have been imposed

1. The maximum penalty for arson is a sentence of life imprisonment. It is clearly a serious offence. Nevertheless, arson is an offence that can be committed in a very wide variety of circumstances and there is no tariff for the offence.

2. The offence in the present case was not the most, or even approaching the most, serious of its type. The damage done to the house was relatively limited and the fire appeared to have been contained quickly and safely. Nevertheless, there were some serious features to the offence. Most importantly, the offence was committed at a residence in a residential area. While no one was living at the house at the time, it is nevertheless inherently dangerous to the safety of others to light an uncontrolled fire in those circumstances. The reality of the offence of arson is that often its consequences in the particular circumstances owe more to chance than design; and those consequences can be devastating. That is why general deterrence is always a relevant sentencing consideration in cases of arson.

3. The sentence that a court would have imposed on Mr Stimpson would have taken into account both general and specific deterrence. Nevertheless, given the limitations created by the requirement not to have regard to his mental impairment I would, as I did in Smith,[6] apply what might be described as 'run of the mill' weight to specific deterrence: that is, to neither give less weight on account of a commitment to pro-social behaviour, nor additional weight to an unrepentant attitude to future offending.

   [6] Smith [100].

4. In my assessment, having regard to the above matters and all relevant sentencing principles (including a discount for the plea of guilty of 25%), and customary standards of sentencing, in my view, the appropriate sentence in this case would have been a term of 2 years imprisonment.

5. I will therefore set the limiting term for Mr Stimpson's existing custody order pursuant to s 264 of the CLMI Act as 2 years.

6. Mr Stimpson spent almost 2 years in custody prior to the making of the custody order. In the ordinary course, had he been sentenced, he would have been entitled to have that period in custody taken into account. In those circumstances, I will order, pursuant to s 264(3) of the CLMI Act, that the limiting term be taken to have commenced on 6 February 2018, being the commencement of Mr Stimpson's time in custody.

Quo vadis?

1. As will be apparent, Mr Stimpson's limiting term expired a number of years ago.

2. Pursuant to s 265(6) of the CLMI Act, the court must either make an order discharging Mr Stimpson from the existing custody order or make an extended custody order under pt 7 div 5 of the CLMI Act.

3. Before determining that issue, however, the court must adjourn the proceedings until the Minister applies for an extended custody order or informs the court that such an application will not be made.[7] In the meantime, Mr Stimpson's existing custody order will continue by operation of s 265(2) of the CLMI Act.

   [7] CLMI Act, s 265(7).

4. I will therefore adjourn the proceedings to a date to be fixed to enable the Minister's intention to be known.

5. In that context, the parties informed me that Mr Stimpson is subject to another existing custody order made by the Magistrates Court on 19 February 2020, in relation to which the Magistrates Court will be required to set a limiting term. The parties anticipate that that limiting term will also have expired.

6. While it is entirely a matter for the Magistrates Court as to what orders it would consider appropriate in those circumstances, I would observe that, if the limiting term for Mr Stimpson's other existing custody order has expired, there would appear to be no reason why that custody order should not simply be discharged pursuant to s 265(4)(a) of the CLMI Act (subject to compliance with the procedural requirements of s 265(5)). In the event that the Minister wishes to apply for an extended custody order under pt 7 div 5 of the CLMI Act, this Court will already be seized of the matter as a consequence of today's application. There could be no utility in a second, concurrent, application for an extended custody order (if such an application is even possible under the CLMI Act).

Orders

1. For these reasons, I will make orders that:

   1.Pursuant to s 50 and s 264(1) of the CLMI Act, the limiting term for the custody order made in respect of Luke James Stimpson on 29 January 2020 is set as 2 years.

   2.Pursuant to s 264(3) of the CLMI Act, the limiting term be taken to have commenced on 6 February 2018.

   3.The proceedings be adjourned pursuant to s 265(7) of the CLMI Act until 13 November 2024, with liberty to apply to relist the matter.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

KT

Principal Associate to the Hon Chief Justice Quinlan

7 OCTOBER 2024