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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA ‑v‑ STIMPSON [No 2] [2020] WASC 19
CORAM:   HALL J
HEARD:   29 JANUARY 2020
DELIVERED          :   29 JANUARY 2020
PUBLISHED           :   30 JANUARY 2020
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 and stand trial ‑ Accused found not to be fit ‑ Whether a custody order appropriate

Legislation:

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 8, s 9, s 10, s 11, s 12, s 19, s 24, s 25

Result:

Indictment quashed and a custody order made

Category: B

Representation:

Counsel:

Prosecution	:	Ms C A Cullen
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 Sanders [2012] WASC 406
The State of Western Australia v Stimpson [2019] WASC 279
The State of Western Australia v Tax [2010] WASC 208
The State of Western Australia v Truong [2017] WASC 289

HALL J:

On 29 July 2019 I decided that the accused was not fit to be tried. However because there was a possibility that he would comply with treatment and that, if so, his condition may improve, I was not satisfied that he would remain unfit within 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.[1]
[1] See the The State of Western Australia v Stimpson [2019] WASC 279.
At the final hearing on 29 January 2020 I received a report from Dr Patchett. That report made it clear that the accused remains unfit to be tried, that his mental illness has not improved and that he is unlikely to become fit in the foreseeable future. Having regard to that evidence and the considerations referred to in s 19(5) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act) I came to the conclusion that a custody order was appropriate. I said that I would publish my reasons for that conclusion at a later date. My reasons follow.

History of the proceedings

The accused stands charged on an indictment 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 history of the proceedings thereafter is set out in my earlier ruling at paragraphs 4 ‑ 13. In summary, a trial commenced in November 2018 in South Hedland but was aborted after the accused became agitated and interrupted proceedings. It then became apparent that the accused had a history of psychiatric problems. A copy of a report from the Pilbara Mental Health and Drug Service stated that the accused had been under the care of that service for some years but had become increasingly difficult to manage due to a lack of insight and increasing drug use. As a consequence of receiving this information, and also taking into account the conduct of the accused, I decided to order a fitness to plead report.
After some delays a report dated 2 April 2019 was produced in which a psychiatrist concluded that the accused was not fit to stand trial at that time but would benefit from treatment with Clozapine, which he had previously refused to take. A three month period was required to determine the effectiveness of that drug. In light of that recommendation the proceedings were adjourned to 8 July 2019. The treatment could only be delivered at the Frankland Centre; however there were delays in transferring the accused and this resulted in the matter being further adjourned to 29 July 2019.
On 29 July 2019 a hearing was conducted to determine the fitness of the accused to stand trial. A report from the Frankland Centre stated that there had been no change in the accused's mental state since his recent admission to that facility. At that time he remained unfit to stand trial and was still refusing to take Clozapine. In light of this I concluded that the accused was not fit to be tried or to plead, but I was not satisfied that he would not become fit within the following six months. I noted that the only chance that he would become fit was if he took Clozapine and that, given his past vacillating attitude to treatment, there was a question as to whether his refusal of that drug would change in the following six months. The proceedings were then adjourned to allow for that possibility, and a further report on the accused's mental fitness was ordered.

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. There was no‑one residing in the house at the time of the fire.
As the accused ran away a witness recognised him by his distinctive hairstyle. The prosecution said in opening remarks at the aborted trial that it would not be suggested that this witness clearly saw the accused light the fire. However the witness 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 witness 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. She later identified the accused from a digiboard.
The accused was arrested the following morning and participated in an electronic record of interview but made no admissions.

Relevant law

The relevant law was set out in my previous reasons. It is convenient to repeat that summary here.
An accused is presumed to be mentally fit to stand trial until the contrary is found under s 10 of 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. If not satisfied that the accused will not become mentally fit within six months the judge must adjourn the proceedings in order to see whether the accused will become fit to stand trial. Any such adjournment cannot exceed six months. If at the end of six months the accused has not become mentally fit the judge must make an order under s 19(4). That is, at that point an order quashing the indictment, without deciding guilt, and either releasing the accused or making a custody order, must be made.
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 which 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 that draws attention to that deficiency. There is a proposal to amend the law, but that has not yet occurred.
The questions to be decided in this case are as follows:
(1)is the accused fit to be tried; and
(2)if not, is it appropriate to make a custody order.

Evidence as to fitness to be tried

In previous proceedings I received the following reports:
(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.
The contents of those reports were summarised in my previous judgment at paragraphs 31 ‑ 37. It is sufficient to note that the primary diagnosis for the accused is one of chronic, treatment‑resistant schizophrenia with a secondary diagnosis of amphetamine use disorder, the latter being in remission due to the accused being in custody. At the time of the previous hearing the accused was unfit to be tried due to his severe mental illness, with thought disorder and delusional beliefs that interfered with his ability to participate in proceedings.
In the report provided by the Frankland Centre dated 26 July 2019 the accused was described as presenting 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. He had also not improved whilst at the Frankland Centre and remained delusional with thoughts continuing to jump from topic to topic and could not answer questions logically or coherently. The accused's guardian had provided consent for the administration of Clozapine but the accused had declined each time it was offered 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 expressed anger and made derogatory remarks towards his treating team. As he could not be persuaded to take Clozapine it was decided that further treatment efforts at Frankland at that time were futile and he should be returned to prison.
For the purposes of the present hearing I have been provided with a report from Dr Steve Patchett, a Consultant Forensic Psychiatrist dated 13 January 2020. Dr Patchett examined the accused at the Frankland Centre on 8 January 2020. Dr Patchett had access to the reports of Dr Bala dated 2 April 2019 and 27 May 2019.
In his report Dr Patchett states that the accused was very unwell during the interview. The accused was preoccupied with florid psychotic beliefs and it was not possible to distract him enough for a rational and logical discussion about his personal and family history, early life experiences or developmental history. Dr Patchett notes that there is a family history of schizophrenia and drug abuse and that the accused has a record which includes property damage, driving and drug related offences.
Dr Patchett summarised the mental health history of the accused. The accused suffers from a chronic treatment‑resistant schizophrenic illness which was first diagnosed in 2002 when the accused was aged 19. He has had multiple admissions to Graylands Hospital, Bentley Hospital and Broome Hospital. He has been trialled on many antipsychotic drugs and combinations of drugs but his response has been very poor. He has often been non‑compliant with treatment and has consistently abused psychoactive substances, particularly methylamphetamine, which has further exacerbated his psychosis. Discharge summaries from Graylands and Broome Hospitals have noted aggression and threatening behaviour leading up to and during inpatient care episodes.
Dr Patchett notes that the accused was at the Frankland Centre at the time of the interview on 8 January 2020, on transfer from Hakea Prison, with the aim of attempting a further trial of Clozapine, which is considered the 'gold standard' in antipsychotic treatment. The accused has consistently refused treatment with Clozapine in the past and his amphetamine abuse and failure to comply with monitoring and follow‑up has made the initiation of Clozapine therapy unsafe in the past.
Dr Patchett conducted a mental status examination. He noted that the accused was not fully cooperative and appeared suspicious during the interview. The accused spoke quickly with imprecision of diction and a tendency to slur and mispronounce words. He was difficult to interrupt and the content of his speech was bizarre and obviously delusional. He presented as being grossly thought disordered with loose associations and tangential responses to questions. He perseverated on some themes such as a desire to be transferred to Roebourne Prison and on other themes that contained so much delusional ideation that it was not possible for Dr Patchett to follow his thinking. Dr Patchett provided a number of examples of this delusional thinking in his report. The accused's mood was described as suspicious but mildly elevated in keeping with the mixture of grandiose and paranoid delusional beliefs that he holds. He appeared unconcerned with his legal predicament. His affect was flat and unchanging. In cognitive terms the accused was not fully orientated in time and place. His attention, concentration and memory were impaired but not able to be formally tested. He appeared to have little insight into the significance and gravity of his alleged offending.
Dr Patchett concluded that the accused's psychiatric diagnosis was that he suffers from chronic treatment‑resistant paranoid schizophrenia and that he has mental and behavioural disorders due to psychoactive substance use.
Having regard to the definition of mental impairment in s 8 of the Act Dr Patchett concluded that it was apparent from historical records and the current presentation that the accused has a mental illness that would satisfy the definition of mental impairment within s 8 of the Act.
In regard to whether the accused is fit to stand trial Dr Patchett considered the criteria in s 9 of the Act. As regards whether the accused is able to understand the nature of the charge he faces, Dr Patchett noted that the accused embarked upon a complicated highly delusional explanation. He concluded that the accused demonstrated in a prolonged discussion that he knew he faced a charge related to starting a fire but could not demonstrate that he understood the nature of the charge and the legality of his behaviour. Dr Patchett expressed the view that the accused was not able to demonstrate an ability to understand the nature of the charge.
As to whether the accused is able to understand the requirement to plead to the charge or the effect of a plea, Dr Patchett concluded that the accused has some rudimentary understanding of the requirement to plead to the charge but demonstrated no rational understanding of the effect of a plea.
As to whether the accused is able to understand the purpose of a trial, the accused gave Dr Patchett an irrational response and Dr Patchett was satisfied that the accused was unable to understand what the purpose of a trial is.
As to the ability of the accused to understand and exercise the right to challenge jurors, the accused made no attempt to discuss this criterion and demonstrated no understanding of the concepts underpinning it. He continued a 'delusional diatribe' without response to interjections and attempts to direct him to answer the questions. Dr Patchett concluded that the accused was unable to demonstrate an understanding of the principles behind jury selection in a trial.
As to whether the accused is able to follow the course of a trial, understand the effect of evidence and properly defend himself, Dr Patchett noted that the accused responded to scenarios in questions aimed at exploring his understanding of these criteria with delusional and tangential responses similar to those he had given earlier in the interview. Dr Patchett does not believe the accused is well enough to follow the course of a trial, understand the substantial effect of evidence presented at a trial or properly defend himself.

On the basis of these findings Dr Patchett expressed the opinion that the accused is currently unfit to plead and unfit to stand trial. Dr Patchett also noted that given the accused's past history it is reasonable to conclude that he is unlikely to become fit in the foreseeable future.
On the day of the hearing a short letter was received from a psychiatric registrar at the Frankland Centre. It advised that the accused had been admitted to the Frankland Centre on 11 December 2019. The purpose of the admission was to again attempt a trial of Clozapine. Though the accused was now accepting Clozapine his mental state was said to be 'unimproved' and he was continuing to display symptoms of florid psychosis. The medication continues to be titrated and it is hoped that the accused will eventually improve.

Conclusion as to fitness to be tried

The evidence is unequivocal that the accused suffers from a major mental illness. That illness is chronic treatment‑resistant schizophrenia. His illness has deprived him of a number of capacities necessary for him to be able to participate in a trial. In particular, I am satisfied that 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 fit to be tried.
On the previous occasion I was satisfied that there was a limited prospect that the accused would relent and agree to treatment with Clozapine. That has only recently occurred and his position has not yet improved. I note that treatment with Clozapine is continuing, but these proceedings must now be brought to an end. No further adjournment of the proceedings is permitted. The maximum period of six months since the initial finding has now elapsed.

Should a custody order be made

As noted earlier a custody order cannot 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) of the Act. The offence in this case is one of arson which is punishable by a maximum of life imprisonment. Accordingly it is open to make a custody order. The real question is whether it is appropriate to make such an order.
In regard to the strength of the prosecution evidence against the accused I have had regard to the prosecution brief. The brief is relatively small and I will summarise the more significant evidence against the accused. Ms Ann‑Marie Slater states that she was walking down Chunking Crescent in South Hedland on the evening of Monday 6 November 2017. She saw a man run from the scrub through the gate of the relevant house and into the carport. She saw that there were some boxes and a jerry can in the carport. She saw some flames and the man come running out towards her. She describes the flames as being really tall and up to the roof of the house. It appeared to her that the boxes were on fire. She states that the flames started while the man was standing near the house. She gives a description of the man as being tall, bald with a patch of hair at the back wearing a black jumper with shorts and as being a light‑skinned Aboriginal man with a slim build. She states that she knows this man as Luke as she has seen him around town. She identifies the house at which the man she refers to lives. She says that the man spoke to her as he left saying 'Shush don't tell anyone'. Ms Slater then went to a friend's house and asked him to contact the fire brigade.
Mr Jon Kuiper is the friend to whom Ms Slater went. He confirms that she knocked on his door on the evening of 6 November 2017 and asked him to call the fire brigade because a house was on fire. Mr Kuiper came outside and could see a fire at the front of 8B Chunking Crescent at the front of the house. Ms Slater told Mr Cooper who she believed had lit the fire and Mr Kuiper confirms that a man named Luke lives around the corner and has an appearance which is similar to that given by Ms Slater. However Mr Kuiper did not see anyone in the vicinity at the time.
Mr Shannon Brown is employed by BHP as a housing maintenance supervisor. He confirms that 8B Chunking Crescent is owned by BHP and used by that company as accommodation for employees whilst they are waiting for permanent housing or are having maintenance done at their permanent house. He confirms that he was advised on 11 November 2017 that the house at 8B Chunking Crescent had been damaged by fire; the damage was subsequently repaired and he makes an assessment of the costs.
Neil Clarke and Chloe Hofman are police officers who attended and observed the fire and made enquiries in the surrounding neighbourhood. Michael Bradbury is also a police officer who took photographs of the damage. The police later interviewed the accused but he made no admissions. They also conducted an identification procedure with Ms Slater and she identified the accused from a photo board.
In my view the evidence against the accused is reasonably strong. Whilst Ms Slater did not actually see the accused lighting the fire, her identification of him is clear and there is no reasonable inference other than that he was the person who started the fire.
As to the nature of the alleged offence and the alleged circumstances of its commission, the offence is a serious one. Although there was no one living at the house in question, it was in a residential area. Fires of this type pose a risk to the safety of residents in neighbouring properties and also to officers of the fire and emergency service who attend. The fire in this case caused relatively limited damage to the house but that is largely due to the good fortune that Ms Slater was nearby and reported it to the authorities. Nevertheless, this is not an arson offence of the most serious type. Had the accused been convicted he may have received a sentence of imprisonment, however I acknowledge that any such sentence would likely be less than the time he has now spent remanded in custody. That is a factor that I take into account; however the purpose of a custody order is not to punish an accused found unfit to be tried for an offence of which they have not been convicted. Rather it serves a protective purpose. In this regard whilst the seriousness of the offence and the circumstances of it are relevant other considerations must also be taken into account.
As to the accused's character, antecedents, age, health and mental condition, the accused is 38 years of age and was 36 years of age at the time of the alleged offence. He is an Aboriginal man who is estranged from his family. He has been previously employed, though he has been unemployed for a long time and is dependent on a disability support pension. He has a criminal record which is mostly of a minor nature but does include a prior conviction for criminal damage. The dominant feature of the accused's history is his chronic and longstanding mental illness. Efforts to treat the accused in the community have failed due to his non‑compliance and his repeated use of illicit substances which exacerbate his condition. In these circumstances there is a high risk that if released into the community the accused would remain extremely unwell, would be unlikely to comply with any treatment order, would relapse into drug use and would be at risk of serious offending of the same or a similar type.
The public interest requires consideration of all factors, including the protection of the public from the risk of offending and the importance of mentally ill persons receiving proper treatment. The public interest has also been taken to include consideration of the effect that a custody order will have on the individual, in particular the possibility of being detained in a prison: The State of Western Australia v Sanders [2012] WASC 406 at [30].
The exercise of discretion should also take into account the period of time the accused has spent in custody having regard to the likely term of any period of imprisonment that would have been imposed had the accused been convicted of the offence: Sanders [31]. A custody order may be unjust if it exceeds any likely punishment that would have been imposed and there are alternative treatment options.
The factors that weigh against a custody order are that the accused has a limited criminal record, the offence is at the lower end of seriousness for offences of this type, that he has spent approximately 24 months in custody and would likely not serve more time in custody if convicted and that a custody order would deprive him of his liberty for an indeterminate future period of time. The factors that weigh in favour of a custody order are that the accused is acutely unwell, he is a high risk to himself and others if not kept in custody, he has no insight into his illness, his prospects with treatment are hopeful but not uncertain, if released at this time his prognosis is bleak, there is an apparent causal connection between his illness and the risk of offending, the alleged offending was of a type that if repeated could pose danger to the accused and others and that he is presently being treated in a secure environment.
On balance I have come to the conclusion that the factors referred to weigh in favour of a custody order.

Conclusion

For the reasons I have stated I have concluded that:
(1)the accused is not fit to be tried; and
(2)a custody order is the only appropriate option.
In coming to these conclusions it is important to emphasise that Mr Stimpson has not been convicted of this offence, indeed the indictment will be quashed as required by the Act, without making any finding as to guilt. The custody order is not a punishment and it would be inappropriate to treat Mr Stimpson as a serving prisoner. He will be detained on a custody order because he is unfit to be tried. This should not mean that the efforts to treat him should cease. Though proceedings in this Court will be brought to an end by the making of the custody order and Mr Stimpson's continued care will be the responsibility of others, I express hope that he will not be forgotten and that efforts to improve his health, alleviate his symptoms and bring him to a state where he is able to be released into the community will continue.
I make the following orders:
(1)the indictment is quashed; and
(2)a custody order under s 19(4) of the Act is made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall
30 JANUARY 2020