The State of Western Australia v Stimpson - [2019] WASC 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- STIMPSON [2019] WASC 279
CORAM:   HALL J
HEARD:   29 JULY 2019
DELIVERED          :   29 JULY 2019
PUBLISHED           :   8 AUGUST 2019
FILE NO/S:   INS 111 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LUKE JAMES STIMPSON
Accused

Catchwords:

Criminal law - Fitness to plead - Fitness to stand trial - Criminal damage by fire - Whether accused fit or would become fit in the next six months

Legislation:

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 5, s 8, s 9, s 10, s 11, s 12, s 19

Result:

Finding that accused not presently fit to be tried
Not satisfied accused would not be fit in six months

Category: B

Representation:

Counsel:

Prosecution	:	Ms J F Boots
Accused	:	Mr R W Keeley

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Rod Keeley Legal

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

The State of Western Australia v Chokolich [2018] WASC 220
The State of Western Australia v Huggins [2017] WASC 243
The State of Western Australia v Lowick [2016] WASC 339
The State of Western Australia v Tax [2010] WASC 208
The State of Western Australia v Truong [2017] WASC 289

HALL J:

Summary

On 29 July 2019 the accused appeared at a hearing to determine whether he was fit to be tried. Reports obtained by the court concluded that he had a serious mental illness, namely schizophrenia, and that treatment with a variety of medications had proven ineffective. The only remaining treatment option was Clozapine, a last‑resort antipsychotic drug that can only be administered in a mental health hospital, but as at the date of the hearing the accused was refusing to accept this medication.
At the conclusion of the hearing I made a determination that the accused was not fit to be tried. However, because there remained at least a possibility that he would comply with treatment with Clozapine in the future and that, if so, his condition may improve, I was not satisfied that he would remain unfit for the following six month period. Accordingly, I remanded the accused in custody, set a final fitness to be tried hearing and ordered a further report for that hearing. I said that in the event that the accused's condition improved in the interim the matter could be brought on at an earlier time. I gave brief oral reasons for my decision and said that more detailed written reasons would be published in due course.

History of the proceedings

The accused stands charged that on 6 November 2017 at South Hedland he wilfully and unlawfully damaged a house by fire. He was first arraigned in this court at a status conference on 25 October 2018 at which time he entered a plea of not guilty to the charge.
The trial in this matter was set down for two days and commenced before me on 15 November 2018 in South Hedland. On the first day of trial the accused again pleaded not guilty to the charge and a jury was empanelled. However, during the prosecutor's opening address the accused became agitated and interrupted, stating the following in the presence of the jury:
I want to plead guilty, please. I want to change my mind. I plead guilty. I just don't want to listen to this shit. I will go back to jail. I don't give a fuck.[1]
[1] ts 24.
I directed the jury to leave the court room and as they did so the accused began to talk incoherently about murderers, paedophiles, the internet and 'the Aboriginal people', twice stating 'You are all murderers'.[2]
[2] ts 24.
There was a short adjournment to enable counsel for the accused to speak to his client. On resumption counsel said that the accused did not in fact wish to change his plea to guilty and that the problem was that the accused, who was a heavy smoker, had not been allowed a cigarette that day. However, on being asked by me as to whether the accused was altogether well, counsel said that his client had major psychiatric problems.[3] Counsel for the State then provided a copy of a report from the Pilbara Mental Health and Drug Service, which stated that the accused had been under the care of the service but had becoming increasingly difficult to manage due to a lack of insight and increasing drug use. Counsel for the accused applied to adjourn the trial and this was not opposed by the State.[4] I discharged the jury and vacated the trial. The accused was remanded in custody and a fitness to plead and stand trial report was ordered.[5] A fitness to plead hearing was later set down for 28 March 2019.
[3] ts 25.
[4] ts 27 ‑ 29.
[5] ts 31, 32.
Because of the limited availability of psychiatrists in the regions (the accused was at Roebourne prison) there was some delay in obtaining a report. This was exacerbated by the unwillingness of the accused to cooperate by being interviewed on a video link. By letter dated 18 March 2019 Dr Siva Bala, Consultant Psychiatrist, said that he was unable to complete a report because the accused did not remain at an interview.[6] Dr Bala said that although the accused had attended an interview he was 'highly agitated, guarded, defensive and uncooperative', and said that he did not want to go to Graylands, was not sick and just needed a lawyer.[7]
[6] ts 38.
[7] ts 39.
At the fitness to plead hearing on 28 March 2019 I explained to the accused that I could not progress the matter until a fitness to plead report was prepared. I asked if he would be willing to speak to Dr Bala if given another chance and, whilst he continued to behave erratically and to raise apparently tangential issues, he said that he was willing to do so and would answer Dr Bala's questions.[8] Accordingly, I ordered a further report and adjourned the hearing to 6 June 2019. Trial dates in August 2019 were held in the event that the accused was found fit to be tried.[9]
[8] ts 41.
[9] ts 45.
Dr Bala prepared a report dated 2 April 2019, to which I refer further below, in which he concluded that the accused was not fit to stand trial and would benefit from treatment with Clozapine, which he had previously declined to take, and that a three month period to determine the effectiveness of that drug was desirable. Given this, the matter was brought on early on 15 April 2019. On the basis of Dr Bala's report, I adjourned the proceedings to 8 July 2019 and granted leave for the report to be provided to a treating psychiatrist with a view to ensuring that the accused received all necessary and appropriate treatment. Additionally, a further report was ordered to address any change in that period of time and a risk assessment if he were to be released into the community, and the August trial dates were vacated.[10]
[10] ts 51, 54.
A supplementary fitness to stand trial report dated 27 May 2019 was prepared in which Dr Bala reported that the accused was less ambivalent about receiving Clozapine treatment and that arrangements had been made for his treatment at the Frankland Centre. This was necessary as the treatment had to occur under medical supervision in a mental health hospital. It appeared from this that the recommended treatment was likely to occur. However, on the morning of the hearing on 8 July 2019 Dr Bala sent an email to the court in which he said that, despite his best efforts and those of the visiting mental health team at Pilbara Mental Health, and the agreement from Frankland Centre psychiatrists to treat the accused, his transfer could not be accommodated by the prison mental health system due to disagreement within the 'system' in Perth as to the need for transport. In essence, Dr Bala said that given the waitlist for the Frankland Centre, the accused was deemed a low priority and hence his transfer had not occurred.[11] To overcome this impasse, and with the agreement of counsel for the parties, I made a hospital order and adjourned the matter for one week (as required by the relevant statutory provision) to facilitate the conveyance of the accused to the Frankland Centre for assessment and treatment.[12]
[11] ts 59.
[12] ts 61; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 5, s 14.
On the morning of the subsequent hearing on 15 July 2019 the Frankland Centre reported that the accused had been too mentally unwell to cooperate with an assessment in hospital and requested that the matter be adjourned for a period of two weeks. The Frankland Centre advised that if remanded in custody for that period the accused would remain at the hospital for assessment. Consequently, the accused was remanded in custody to appear at a fitness to plead hearing on 29 July 2019, during which period he remained at the Frankland Centre for further treatment and assessment.[13]
[13] ts 64.
A further report was provided by the Frankland Centre dated 26 July 2019 stating that there had been no change in the accused's mental state since his admission, that he remained unfit to stand trial and that he had refused Clozapine. As Clozapine is only available as an oral medication it was considered impossible to deliver it without the cooperation of the patient. In these circumstances there was said to be no point in him remaining at the Frankland Centre.
In light of this, and other reports already mentioned and to which I make further reference below, at the hearing on 29 July 2019 I gave brief oral reasons and found that the accused is presently not fit to be tried or to plead, but I was not satisfied that he would not become fit within six months.[14] I noted that the only chance that he would become fit is if he took Clozapine and that, given his past vacillating attitude to treatment, there was a question as to whether his present refusal of that drug would change in the next six months.[15] The proceedings were adjourned for six months to allow for that possibility, and a further report on his mental fitness was ordered.
[14] ts 68 - 70.
[15] ts 68.

The prosecution case

The State alleges that on the evening of 6 November 2017 the accused attended 8B Chunking Crescent, South Hedland. The residence is owned by BHP as temporary housing for employees, and the accused is not associated with the address. It is alleged that he piled a number of cardboard boxes at the door, and set them alight. The fire caused over $10,000 damage to the residence.
As the accused ran away a neighbour recognised him by his distinctive hairstyle. The prosecution said in opening remarks that the State would not lead any evidence that this witness clearly saw the accused light the fire. However, the neighbour is said to have seen the boxes and a jerry can in the vicinity of the house, and also saw the man running from nearby scrub towards the carport of the house. The neighbour saw flames at the house emanating from some of the lighted cardboard boxes and believes she saw the man fitting the description of the accused in the area where she saw the flames.[16]
[16] ts 19 - 20.
The accused was arrested the following morning and participated in an electronic record of interview but made no admissions.

Relevant law

An accused is presumed to be mentally fit to stand trial until the contrary is found under s 10 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). The question of whether an accused is mentally fit to stand trial may be raised in the Supreme Court either before or after an indictment is presented or before or after a jury is sworn: s 11 of the Act. In the present case the accused was committed for trial to this court and an indictment has been presented which is dated 6 July 2018.
The question of fitness to be tried may be raised by the prosecution or the defence or the presiding judicial officer. In this case, both parties agreed that this was a question requiring the determination of the court.
The question of whether an accused is not mentally fit to stand trial is to be decided by the court on the balance of probabilities. In deciding this question the presiding judicial officer can inform himself or herself in any way he or she thinks fit: s 12(1) of the Act. The court may order reports from a psychiatrist or other appropriate expert for this purpose.
Section 9 of the Act defines the circumstances in which an accused person is not mentally fit to stand trial. That section provides as follows:
9.Mental unfitness to stand trial, definition
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is ‑
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
The term 'mental impairment' is defined in s 8 to mean intellectual disability, mental illness, brain damage or senility.
Section 19 of the Act sets out the procedure for proceedings in the Supreme Court and the District Court to determine fitness to be tried. Where a judge decides that an accused is not mentally fit to stand trial it is then necessary to consider whether the accused may become fit within six months. If satisfied that the accused will not become mentally fit within six months, the judge must make an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal without deciding the guilt of the accused and either releasing the accused or making a custody order: s 19(1) and (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 the considerations referred to in s 19(5). Those considerations are:
(1)the strength of the evidence against the accused;
(2)the nature of the alleged offence and alleged circumstances of its commission;
(3)the accused's character, antecedents, age, health and mental condition; and
(4)the public interest.
If a custody order is made, the accused person must be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board (the Board) established under Pt 6 of the Act. Any such detention continues until the accused is released by order of the Governor: s 24(1) of the Act.
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated: s 24(2) of the Act. Section 24(3) of the Act also provides that a mentally impaired accused person should only be detained in an authorised hospital if the Board is satisfied that the accused has a mental illness requiring treatment, that because of the mental illness there is a significant risk to the health or safety of the accused or another person, the accused does not have the capacity to consent to treatment and treatment can only be provided satisfactorily in an authorised hospital.
Within five working days of a custody order being made the Board must review the case of the accused and determine the place where the accused is to be detained. Until the Board determines the place where the accused is to be detained, the accused is to be detained either in an authorised hospital or a prison or detention centre: s 25 of the Act.
A mentally impaired accused person cannot be detained in a detention centre unless the accused is under the age of 18: s 24(5) of the Act.
The only options under s 19(4) are unconditional release or a custody order. The court is not empowered to make an order conditionally releasing an accused person with, for example, a condition that the person reside in a secure hospital or undertake specified treatment. This deficiency in the Act has been the subject of comment in other cases: The State of Western Australia v Tax [2010] WASC 208 and The State of Western Australia v Lowick [2016] WASC 339. I also referred to the deficiency in The State of Western Australia v Huggins [2017] WASC 243; The State of Western Australia v Truong [2017] WASC 289 and The State of Western Australia v Chokolich [2018] WASC 220. This case is yet another which draws attention to that deficiency. There is a proposal to amend the law in this regard, but that has not yet occurred.
The questions to be decided in this case are as follows:
(1)is the accused presently fit to be tried;
(2)will he become mentally fit to stand to trial within six months; and
(3)if not, is it appropriate to make a custody order.

Evidence as to fitness to be tried

In the course of this matter I received the following:
(1)a report by Dr Siva Bala, Consultant Psychiatrist, dated 2 April 2019;
(2)a supplementary report by Dr Bala dated 27 May 2019; and
(3)a report by Dr Aditya Bhargava, Psychiatric Registrar, and Dr Rachel Griffiths, Consultant Psychiatrist, of the Frankland Centre dated 26 July 2019.
In his 2 April 2019 report Dr Bala states that Mr Stimpson has a longstanding history of severe schizophrenia with a high level of chronic psychotic symptoms. His symptoms remained despite a year in custody and treatment with various antipsychotic medications. This showed that abstaining from illicit drug use had not been effective in itself.
Dr Bala reported that the accused has had several past admissions to a mental health unit in Broome and has had trials of a number of antipsychotic medications, but continues to be unwell and reject treatment recommendations. He said that the accused was unlikely to recover in the short term. He said that the accused would benefit from a trial of Clozapine, which is reserved for treatment‑resistant schizophrenia, in an authorised facility.
Dr Bala assessed Mr Stimpson's mental fitness to plead or stand trial against the criteria set out at s 9 of the Act. He said that while the accused was able to understand the nature of the charge, the requirement to plead and the effect of a plea,[17] he did not meet the criteria set out at s 9(c) to (g) of the Act.
[17] s 9(a), (b) of the Act.
A supplementary fitness to stand trial report dated 27 May 2019 was prepared in which Dr Bala reported the following:
Mr Stimpson remains mentally unwell with grandiosity, thought disorder and remains unfit to plead and stand trial. However, he is less ambivalent about accepting treatment with Clozapine and arrangements have been made for Mr Stimpson to be transferred to the Frankland Centre for a review of antipsychotic treatment and commencing Clozapine, if he could be persuaded to accept this. I recommend that his fitness is reassessed in another three to six months after any treatment changes.
Dr Bala stated a primary diagnosis of chronic, treatment‑resistant schizophrenia with a secondary diagnosis of amphetamine use disorder, in remission in a controlled environment. While fitness to plead was not formally assessed in the supplementary report, Dr Bala remained of the opinion that the accused was unable to demonstrate his fitness to plead at present and would have significant difficulty managing his behaviour in court, working with counsel, following the course of the trial and properly defending the charge. The lack of fitness arises from the severe mental illness with thought disorder and delusional beliefs that interfere with his ability to participate in proceedings.
Dr Bala recommended that it would be beneficial for the accused to be transferred to the Frankland Centre for further review. He reiterated his view that the accused would benefit from a trial of Clozapine, which due to the nature of the drug must be commenced in a psychiatric hospital.

The report provided by the Frankland Centre dated 26 July 2019 states that the accused 'continues to present with disorganised thoughts, disordered behaviour, persecutory and grandiose delusions and auditory hallucinations, even when on antipsychotic treatment'. His mental health had not improved when he abstained from illicit drugs. As to his progress at the Frankland Centre, his condition did not change and he remained delusional, his thoughts continued to jump from topic to topic and he could not answer questions logically or coherently. While his guardian provided consent for the administration of Clozapine, he declined each time it was offered to him despite the attempts of his treating mental health team to explain to him that it was his only chance of becoming fit to stand trial. He voiced a wish to return to Roebourne prison. He expressed anger and made derogatory remarks towards the treating team. As he could not be persuaded to take Clozapine it was decided that further treatment efforts at Frankland were futile and he should be returned to prison.

Conclusion

The evidence is clear that the accused suffers from a major mental illness. That illness has been resistant to treatment to date. It has deprived him of a number of the capacities necessary for him to be able to participate in a trial. In particular, he would not be able to follow the course of a trial, would not be able to properly instruct his lawyer and would not be able to defend himself. I am, therefore, satisfied to the requisite standard that he is not presently fit to be tried.
The next question is whether I am satisfied that he will not become fit to be tried in the next six months. Whilst all attempts at treatment to date have failed, there remains the option of Clozapine. Whether that medication would be successful in improving his condition is unknown, but it remains a viable option. The accused has varied in his attitude to whether he will cooperate with alternative treatments. Most recently he has refused to accept Clozapine and his cooperation is required because of the way this medication is administered. Nevertheless, there remains a real possibility that he will agree to this treatment and will become fit. In these circumstances I came to the conclusion that the proceedings had to be adjourned to allow for that possibility. Of course, if at the end of that period he remains unfit it will then be necessary to proceed to the next stage.
In coming to these conclusions I am acutely aware that the accused has been in custody for a considerable time. There is, however, no realistic option other than the course I have taken. If the matter was to be finally determined now the likely outcome would be a custody order. That would mean that the accused would be held in custody for an indeterminate period pending review by the Board. The seriousness of the charge, the strength of the prosecution evidence, the fact that he remains seriously unwell, that community treatment options have been unsuccessful and that he likely to be a risk to the safety of members of the community, when taken together mean that a release order is not a likely outcome.
For these reasons I made the orders referred to in paragraph 2, namely that:
(1)the accused is not presently fit to be tried;
(2)the matter is adjourned for six months as it is possible that in that period he may become fit to be tried;
(3)the accused is remanded in custody; and
(4)a further fitness to be tried report is to be prepared for the next hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall
8 AUGUST 2019