The State of Western Australia v Truong - [2017] WASC 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- TRUONG [2017] WASC 289

CORAM: HALL J

HEARD: 27 SEPTEMBER 2017

DELIVERED : 27 SEPTEMBER 2017

FILE NO/S: INS 391 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
VIET KY TRUONG
Accused

Catchwords:

Criminal law - Fitness to stand trial - Attempted unlawful killing and aggravated unlawful wounding - Whether a custody order appropriate

Legislation:

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

Result:

Indictment quashed
Custody order made

Category: B

Representation:

Counsel:

Prosecution : Ms B F Stanwix
Accused: Mr I D Hope

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: I D Hope

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

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

HALL J: The accused is charged that on 30 May 2016 at Girrawheen he attempted to unlawfully kill his wife and on the same day and at the same place he unlawfully wounded his daughter. An issue was raised as to the accused's fitness to stand trial. On 27 September 2017 a hearing was conducted to decide that issue.
At the conclusion of the hearing I decided that the accused was not fit, and would not in the future be fit, to stand trial. I was also satisfied that a custody order was appropriate. I made orders quashing the indictment and making a custody order pursuant to s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). I gave brief oral reasons for my decision and said that more detailed written reasons would be published in due course.

Procedure

An accused is presumed to be mentally fit to stand trial until the contrary is found under the Act: s 10. The question of whether an accused is not 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. In the present case the accused was committed for trial to this court and an indictment has been presented which is dated 22 February 2017.
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). 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;
(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.
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).
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:
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)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 established under pt 6 of the Act. Any such detention continues until the accused is released by order of the Governor: s 24(1).
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). Section 24(3) 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 detailed the accused is to be detained either in an authorised hospital or a prison or detention centre: s 25.
A mentally impaired accused person cannot be detained in a detention centre unless the accused is under the age of 18: s 24(5).
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 residential dementia facility (such facilities not being authorised hospitals or declared places for the purpose of a custody order). 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 recent case of The State of Western Australia v Huggins [2017] WASC 243. This case is yet another which draws attention to that deficiency.
The questions to be decided in this case are as follows:
1.Is the accused fit to be tried?
2.Will he become mentally fit to stand trial within six months?
3.Is it appropriate to make a custody order?

Fitness to be tried

At the hearing I received the following documents as evidence:
1.A report of Dr Jacques Claassen, a consultant forensic psychiatrist, dated 25 November 2016 (exhibit 1).
2.A second report of Dr Claassen dated 18 September 2017 (exhibit 2);
3.A report by Dr Bradleigh Hayhow, a consultant neuropsychiatrist, dated 23 July 2017 (exhibit 3).
4.The prosecution brief (exhibit 4).
5.A report by Dr Alisa Holt, a clinical neuropsychologist, dated 31 May 2016 (exhibit 5).
6.A report by Dr Rick Stell, a consultant neurologist, dated 16 February 2016 (exhibit 6).
7.A copy of orders made by the State Administrative Tribunal on 29 June 2016 declaring that the accused is unable by reason of mental disability to make reasonable judgments in respect of his estate and in respect of matters relating to his person and is need of a guardian. The orders also appoint the Public Advocate as plenary guardian to the accused (exhibit 7).
These documents were tendered by consent. The content of the reports was not disputed. No witnesses were called to give oral evidence.
Prior to the incident that gave rise to the charges, concerns had been raised regarding the accused's mental health. He was referred by his general practitioner to Dr Stell, a consultant neurologist. In his report, Dr Stell said that the accused presented with a two to three‑year history of cognitive decline. This involved short‑term memory loss, vivid dreams, insomnia, anxiety, depression and possible visual hallucinations. Over time he was noted to be walking more slowly and to be shaking and had developed involuntary movements of the mouth which he found to be quite embarrassing. Some of these symptoms were relieved with medication. He then had an MRI scan of the brain which showed mild generalised atrophy with subtle changes of small vessels. Dr Stell concluded that the symptoms raised the possibility of dementia with lewy bodies. This is a common neurodegenerative disease of ageing. It occurs where there is an abnormal build‑up of a protein in brain cells. These abnormalities occur in specific areas of the brain, causing changes in movement, thinking and behaviour (neurology report dated 16 February 2016, pages 1 ‑ 2).
On 15 April 2016 the accused was reviewed by Dr Alisa Holt, a clinical neuropsychologist. It was hoped that a neuropsychological assessment would assist in clarifying whether the accused was experiencing a neurodegenerative condition, such as dementia with lewy bodies. The assessment was made more difficult because the accused does not speak English and an interpreter was required. Dr Holt described the accused's level of cognitive functioning as being highly concerning. She noted slowing of thinking, executive dysfunction, variable attention and memory impairment. She said that it was difficult to gain a precise sense of the accused's premorbid level of functioning, but that concern about an emerging neurodegenerative condition was warranted. It was more likely than not that the accused would be considered to meet the criteria for a diagnosis of dementia. She said that the clinical picture was most consistent with dementia with lewy bodies but a differential diagnosis of 'Parkinson's Plus' was also open (neuropsychology assessment report, pages 5 ‑ 6).
The incident that is the subject of the charges occurred on 30 May 2016. The factual circumstances of that incident are relevant to an assessment of the accused's fitness to plead. They have been taken into account by experts who have examined the accused since that time. The alleged facts will be referred to later in these reasons. Following the incident the accused was immediately arrested. He required a period in an intensive care unit in a hospital as he had consumed organophospates following the incident in an apparent suicide attempt. Subsequently he was remanded in custody. Whilst in prison he was seen by a psychiatrist from the State Forensic Health Service Prison In‑reach Team. He was assessed as presenting with psychotic symptoms secondary to lewy body dementia. He expressed delusional beliefs that his wife was having multiple affairs, including with prison officers. He attributed his suicide attempt to despair over his perception of his wife's infidelity.
Dr Jacques Claassen is a consultant forensic psychiatrist. His first report of 25 November 2016 was prepared at the request of the Stirling Gardens Magistrates Court to assess the accused's fitness to stand trial. He met the accused at Casuarina Prison on 5 November 2016. At that time he assessed the accused as suffering from a mild neurocognitive disorder with lewy bodies without behavioural disturbance. He said that this disorder falls into a group of neurocognitive disorders which substantially affect the sufferer's cognitive function in one or more of the following domains: complex attention; learning and memory; executive function; motor, perceptual and social cognition. This form of dementia is progressive and incurable. He said that the accused's condition was complicated by the presence of psychotic beliefs. These revolve around the fidelity of his wife and include delusional jealousy as well as delusional misinterpretation of his environment. Although the accused had been prescibed appropriate pharmacological treatment his beliefs persisted. Dr Claassen was of the view at that time that the accused met the criteria for unfitness to stand trial and that he was unlikely to regain fitness in the immediately foreseeable future (psychiatric report dated 25 November 2016, pages 3, 10).
Dr Bradleigh Hayhow, a consultant neuropsychiatrist, reviewed the accused at the request of the accused's solicitor. Dr Hayhow met with the accused on 17 May 2017. He noted that during the accused's time in prison his behaviour had fluctuated. While he had often been settled and cooperative he had also demonstrated inattention, poor memory, poor sleep, delusional ideation and aggression, and he had often been disoriented. These symptoms are typical of dementia. His behaviour had become more stable as a result of the use of medications (neuropsychiatric report dated 23 July 2017, page 4).
Dr Hayhow administered a Vietnamese language version of a cognitive test. The result of this test showed that the accused was in the severely impaired range. The accused had limited insight into his memory problems and was not alarmed by his poor performance. Dr Hayhow concluded that the accused met the criteria for a diagnosis of a major neurocognitive disorder, more commonly referred to as dementia. There had been a significant and progressive decline in cognitive performance sufficient to interfere with the accused's independence (neuropsychiatric report dated 23 July 2017, page 5).
Dr Hayhow said that it was difficult to determine whether the disorder was dementia with lewy bodies or Alzheimer's disease as it was often difficult to differentiate the two and they may occur together. He noted that the accused's diagnosis was supported by the presence of aggressive behaviour and systematised delusions. His current medication regime was deemed to be appropriate, although there was unlikely to be any improvement in his mental state. The prognosis was a progressive decline in physical, cognitive and mental functioning leading to death (neuropsychiatric report dated 23 July 2017, page 6).
Having regard to the criteria in s 9 of the Act, Dr Hayhow said that the accused was unable to demonstrate a sound understanding of the charges against him, was unable to demonstrate a sound understanding of the requirement to plead or the effect of a plea, was unable to demonstrate an understanding of the right to challenge jurors and was unable to demonstrate an understanding of the role of evidence in determining the outcome of his trial. He did not believe that the accused had the capacity to follow a trial or properly defend the charges, primarily due to the accused's severe impairment of memory and executive functioning and his persistent systematised delusions. He concluded that the accused was not mentally fit to stand trial (neuropsychiatric report dated 23 July 2017, page 7).
The second report of Dr Claassen is dated 18 September 2017. For the purpose of this report Dr Claassen met with the accused at Casuarina Prison on 19 August 2017. Dr Claassen noted that in the period that had elapsed since his first report there had been a deterioration in the accused's cognition and behaviour. He said that such deterioration was expected and would gradually continue over time as the dementia progresses. He noted that the accused had been prescribed an antipsychotic medication which could alleviate some symptoms but would not arrest or reverse a cognitive decline. He stated that he understood that the accused's physical and mental health was being monitored by both a prison general practitioner and the mental health team at Casuarina prison. He said that, 'In time, and as the neurocognitive disorder progresses he will require treatment from specialist services who routinely manage individuals with neurocognitive conditions' (psychiatric report dated 18 September 2017, pages 4, 11).
Dr Claassen was also of the view that the accused was not fit to stand trial and would not be fit in the future. The accused had no real understanding of the purpose and function of a court. He did not understand what a jury was and was unable to explain what witnesses or evidence were. His ability to follow or understand complex or abstract material was very limited and in Dr Claassen's opinion the accused would not be able to follow the course of a trial. Given the accused's deterioration, Dr Claassen was certain that he would not regain fitness to stand trial at any time in the future (psychiatric report dated 18 September 2017, pages 11 ‑ 12).
Dr Claassen said that it was his understanding that the accused's case had been referred to the Dementia Behaviour Management Advisory Service for their specialist consideration and guidance. He said that the accused suffers from a progressive and devastating brain condition which impacts his physical and mental health to such an extent that independent living and decision‑making regarding his affairs will become impossible for him in the 'not‑too‑distant future'. However, he said that it was difficult to accurately predict when this point will be reached (psychiatric report dated 18 September 2017, page 13).
On the basis of this evidence I am satisfied on the balance of probabilities that the accused suffers from a mental impairment and does not have any of the abilities referred to in s 9 of the Act. It is unequivocally clear that the accused is not mentally fit to stand trial and will not become mentally fit to stand trial within six months. Indeed, it is plain on the evidence that there is no prospect of the accused's condition improving, rather it is inevitable that it will decline further in the future.

Is a custody order appropriate?

The charges against the accused are that he attempted to unlawfully kill his wife contrary to s 283(1) of the Criminal Code (WA) and that he unlawfully wounded his daughter in circumstances of aggravation, namely that he was in a family or domestic relationship with her, contrary to s 301(1) of the Criminal Code. The maximum penalty for the first charge is life imprisonment. The maximum penalty for the second charge is 7 years' imprisonment. Accordingly it is open to make a custody order, but whether it is appropriate to do so depends upon a consideration of the factors referred to in s 19(5).

a) Strength of the evidence

The prosecution brief contains a statement from Thi Thuc Trinh, the wife of the accused. Ms Trinh is 60 years of age, was born in Vietnam and moved to Australia in 1990. She met the accused in about 1992 or 1993 and they were married shortly after. She said that about three years ago the accused lost his job as a fruit picker. Since that time he had become very depressed and unsatisfied with his life. She said he had been advised that he might have the beginnings of dementia and was no longer allowed to drive a car because of his slow reactions. He began to have false beliefs that Ms Trinh was having an affair. He was prescribed antidepressants, but they did not seem to help so he stopped taking them. Ms Trinh said that her relationship with the accused was normal and she described him as a loving and good man. They have two children, a son aged 22 and a daughter aged 17, who were both living with them at the time of the incident (prosecution brief, pages 3 ‑ 5).

Ms Trinh states that on the morning of Monday 30 May 2016 she woke up in bed with the accused at around 5.00 or 6.00 am. She got out of bed and stepped towards the door. As she opened the door the accused jumped out of bed, grabbed her and threw her back onto the bed. He then got on top of her and started to choke her. He used one hand to squeeze her throat and the other hand to pinch her nose. She could not breathe. This lasted for about two or three minutes. The accused then placed a blanket over her face. She tried screaming out for help but could not make a loud noise because of the blanket (prosecution brief, pages 6 ‑ 7).
Ms Trinh said that her daughter Kylie came to the bedroom and began shouting at the accused to stop what he was doing. This distracted him and Ms Trinh was able to get away. As she was fleeing the bedroom the accused picked up a dumbbell and struck her to the left side of her head (Ms Trinh was not aware of what was used to hit her, but this is confirmed by her daughter). This caused a fractured skull and breathing and loss of sight in the left eye. Ms Trinh ran to the living area of the house and sat down on a sofa. The accused followed her and went to the kitchen where he took a small axe from a drawer. He then ran towards Ms Trinh and hit her on the head with the blade of the axe. There were at least three blows which caused deep lacerations to her head. By this time Ms Trinh was bleeding profusely. She defended herself by putting up her hands. She managed to take hold of the axe and to throw it away across the room. She said it appeared that the accused did not 'have any way to control himself' (prosecution brief, pages 8 ‑ 9).
Ms Trinh states that the accused then went to the kitchen and took a wooden‑handled chef's knife. He then came back to her and held the knife up against her face. He pressed hard against the knife which caused the blade to cut through her lower lip and into her gum. She pushed the knife away from her and said that if she died he would be satisfied. She said that 'all of a sudden he seemed to just change'. His aggression stopped and he walked away from Ms Trinh (prosecution brief, pages 9 ‑ 10).
Ms Trinh managed to call the police, who arrived shortly thereafter and arrested the accused. Ms Trinh was taken to hospital. She states that as a result of the incident she suffered a fractured vertebrae and fractured cheekbone and eye socket. She also suffered multiple large cuts to her scalp which were stapled closed. These injuries are confirmed by photographs on the prosecution brief (prosecution brief, pages 11, 185 ‑ 187)
The accused's daughter, Kylie Truong, also provided a witness statement. She states that early on the morning of 30 May 2016 she had got up early to get ready for school. She heard her mother calling for help. It sounded as if her mother's voice was muffled. She went to her parents' bedroom and opened the door. She saw her mother lying on her back on the bed and the accused on top of her. Her mother was struggling. She saw the accused with his hands around her mother's neck trying to choke her. Kylie tried to stop her father by pushing him on the back and telling him to leave her mother alone. Her efforts were not successful. Her mother was then cowering on the floor. The accused walked over to her mother, picked up a 3 kg dumbbell and hit her mother on the right side of her head. There was a cracking noise and Kylie could see that her mother's face was covered in blood. The accused hit her mother a second time with the dumbbell. He then turned around and hit Kylie on the right side of her head with the dumbbell. She said that the impact hurt a lot and she was bleeding. Her mother then ran from the room. A short time later Kylie saw the accused get a knife from the kitchen. Kylie then ran to the back door and out of the house. She was shouting for someone to help (prosecution brief, pages 13 ‑ 16).
Roman Truong is the accused and Ms Trinh's 22‑year‑old son. He was at home that morning and awoke to the sounds of his mother and sister screaming. He went to his parents' bedroom and saw the accused on top of his mother. He saw the accused pick up a dumbbell and hit his mother on the head with it at least twice. After his mother fled the room Roman followed a short time afterwards and saw his father get a knife from the kitchen and try to stab his mother with it. At this time his mother was on the couch and raised up both her hands and her feet in an attempt to fend off the accused. Roman yelled at his father to stop and then ran from the house and rang the police. Roman said he had never seen his father behave like this before. He said it was like the accused was possessed and he was not acting like himself (prosecution brief, pages 27 ‑ 39).
Police who attended at the scene found the accused in a shed at the back of the house. He was conscious but unresponsive. He had blood on his hands and clothing. Ambulance officers who attended at the scene noted that the accused smelt strongly of chemicals. He was arrested and later taken to hospital where he was treated for organophosphate poisoning.
Police officers seized a dumbbell, a small axe and two knives from the premises. These items were submitted for forensic testing. Red‑brown stains on the dumbbell tested positive for blood. DNA analysis indicated the presence of DNA of the accused and Ms Trinh to a high degree of probability. The axe was also stained and tested positive for blood. DNA testing of the axe indicated that Ms Trinh was the donor of the DNA to a very high degree of probability. Neither of the knives tested positive for blood but one of them produced a DNA sample that matched that of Ms Trinh to a high degree of probability (prosecution brief, pages 192 ‑206).
In my view, the available evidence establishes a strong case that the accused was responsible for assaulting both his wife and daughter. The persistence of the attack upon his wife and the nature of the injuries inflicted strongly support an inference that the accused intended to kill her. The reasons for this violent behaviour are unknown. There is nothing to suggest that he had behaved in such a way previously. I do note, however, that Ms Trinh states that the accused had begun to have delusional beliefs regarding her fidelity prior to this incident.

b) The nature and circumstances of the alleged offence

As I have noted, the offences with which the accused is charged are attempted unlawful killing and unlawful wounding. The circumstances of the commission of the alleged offences have been described above. Clearly they are both very serious offences. The attack upon Ms Trinh was sudden, unprovoked and persistent. She received multiple very serious injuries. If not for her own resistance and the efforts of her children, particularly Kylie, the attack upon her may very well have proven to be fatal.

c) Personal circumstances

The accused is now aged 57 years old. He was born in Hue, Vietnam. He was one of eight children born from his parents' union. He has described his life as happy and normal. He commenced schooling at aged 5 in Vietnam. He told Dr Claassen that he was a good student and after completing school attended university for approximately three years. He did not finish university as he was required to enlist in the army. It should be noted that the veracity of the accused's personal history is open to doubt because Dr Claassen said that he provided conflicting answers to questions asked of him and that it was difficult to obtain a comprehensive and logical account of his educational and employment history (psychiatric report dated 25 November 2016, page 5).
The accused moved to Australia in 1987 after being sponsored by one of his brothers. He stated that he worked consistently from 1987 to 2012 when he was laid off after there was a change in management in the company that he worked for.
The accused met his wife in Australia and they have been married for nearly 30 years. He described his marriage as happy and denied any prior history of violence within the home. He reported to Dr Claassen a belief that his wife had engaged in multiple extramarital affairs over many years, including with prison staff (psychiatric report dated 25 November 2016, page 6).
Despite the unanimous view of all of the medical practitioners who have examined the accused, he did not believe there was anything amiss with his mental health. Whilst prepared to accept treatment as prescribed by prison doctors, he was unable to explain why this was necessary. Dr Claassen concluded that the accused had no insight into his conditions and lacked the capacity to make fully‑informed decisions regarding treatment (psychiatric report dated 25 November 2016, page 8).
Since being discharged from hospital the accused has been remanded in prison. It is the understanding of Dr Claassen that the accused has received ongoing monitoring and tracking from both the prison general practitioner and the mental health team at Casuarina Prison. Whilst it would appear he has been adequately managed in this environment, Dr Claassen notes that the steadily deteriorating course of the accused's dementia means that he will in the future become incapable of living outside a specialised care facility (such as a secure dementia unit). When that point is reached a prison would not be adequately equipped to manage a person with such complex physical, behavioural, cognitive and emotional needs (psychiatric report dated 18 September 2017, page 4).
Dr Claassen notes that continuing input from the State Forensic Mental Health Service Prison In‑reach Team to track and monitor the accused's neurocognitive disorder and psychotic symptoms is both appropriate and necessary. Ongoing assessment, support and treatment of his cognitive problems and psychosis is required. Active collaboration with specialist service providers will become increasingly necessary as his condition deteriorates over time (psychiatric report dated 18 September 2017, page 11).

d) The public interest

There is a public interest in ensuring that the accused will not be a risk to the safety of others. This includes, in particular, members of his family. He is a relatively young man in good physical health. He continues to harbour delusional beliefs regarding his wife's fidelity. His dementia has not reached a point where it could be reliably said that he does not pose a risk to the safety of others. There is no evidence to the effect that if released from custody the accused would be placed in a secure dementia unit. Nor was there any evidence to the effect that he would be made an involuntary patient in a mental health hospital.
There is also a public interest in ensuring that a person who is not mentally competent is humanely treated. If a custody order is made, the likelihood is that the accused will continue to be kept in a prison. Given that dementia is not treatable he may not be eligible to be placed in a mental health hospital. Clearly prison is not the most appropriate form of accommodation for a person with the accused's level of cognitive impairment. It is unlikely that he will receive the best possible care and management in such an environment. As his condition deteriorates, as it inevitably will, he will become increasingly vulnerable to harm from others and increasingly unable to care for himself. However, that point has not yet been reached.

Conclusion

At the hearing of this matter counsel for the accused submitted that it was open to me in the circumstances of this case to release the accused rather than making a custody order. He noted the similarities between this case and that of Huggins. He submitted that the violence manifested in this incident was out of character and it could not be concluded that the accused would be a risk to the safety of others. I am unable to accept these submissions.
As I have noted, the violence exhibited by the accused was severe and unprovoked. If, as is likely, it was caused by his dementia coupled with his delusional beliefs then both of those factors continue to be present.
The case of Huggins differs from that of the accused in a number of significant respects. Firstly, Mr Huggins was aged 88 and had advanced dementia which had reached the point where he required constant care and assistance to deal with even the most basic activities. He required a high level of care that could only be provided in a high dependency secure dementia facility. Secondly, Mr Huggins' health had deteriorated to such an extent that he was considered to be at low risk of causing serious harm to others. His ability to interact with his environment and people in it was markedly impaired. Thirdly, at the time of the hearing Mr Huggins was being kept in a secure mental health unit at a public hospital. All the evidence indicated that he could not be adequately cared for in a prison environment. Fourthly, there was evidence from Mr Huggins' treating psychiatrist and his son, who had been appointed his legal guardian, that their intentions were to place him in a secure high‑dependency dementia unit as soon as a position became available. There was evidence that in no circumstances would Mr Huggins be released again to live in the community.
As I have noted, the Act presents two stark options, release or a custody order. In this case release is not a viable option. The nature of the alleged offending and the risk of harm to others make that option inappropriate. If a conditional release order had been available it might have been open to consider that option. However, significant additional evidence would have been required.
I accept that prison is not an optimal environment for the accused. It is also likely that at some point his condition will deteriorate to such a point that he could not be adequately or humanely cared for in a prison. If he continues to be kept in a prison then it is of importance that his condition and safety is continually monitored. The Mentally Impaired Accused Review Board will be responsible for determining where the accused is kept and ensuring that he receives the appropriate level of care and management. I commend to the board the recommendations made by Dr Claassen.
For these reasons, on 27 September 2017, I made the following orders:
1.The indictment is quashed.
2.A custody order in respect of the accused is made pursuant to s 19(4) of the Act.