The State of Western Australia v Ugle
[2024] WADC 69
•19 AUGUST 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- UGLE [2024] WADC 69
CORAM: LONSDALE DCJ
HEARD: 25 FEBRUARY, 22 APRIL, 30 MAY, 26 JULY 2022, 13 JANUARY, 17 APRIL, 16 MAY, 9 JUNE, 3 & 18 AUGUST, 7 SEPTEMBER, 18 OCTOBER, 8 DECEMBER 2023, 23 FEBRUARY, 26 MARCH & 6 JUNE 2024
DELIVERED : 19 AUGUST 2024
FILE NO/S: IND 1666 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
CENIC LANE UGLE
Catchwords:
Criminal law - Fitness to plead - Mentally impaired accused - Accused found not to be fit - Whether a custody order appropriate
Legislation:
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Mental Health Act 2014 (WA)
Result:
Charge dismissed
Committal quashed
Order for unconditional release
Representation:
Counsel:
| Applicant | : | Mr E A McClintock |
| Accused | : | Ms Z M Burgess |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Burgess Criminal Lawyers |
Case(s) referred to in decision(s):
Cohen v Gates [2018] WASC 247
Huggins v The State of Western Australia [2018] WASCA 61
The State of Western Australia v B P [2019] WADC 63
The State of Western Australia v S U [No 2] [2017] WADC 20
The State of Western Australia v Sanders [2012] WASC 409
The State of Western Australia v Stimpson [2019] WASC 279
LONSDALE DCJ:
History of the proceedings and overview of matters for determination
The accused is charged that on Thursday 10 December 2020 he committed the offence of armed robbery at the Woolstores Shopping Centre in Fremantle.
In August 2021 Mr Ugle was assessed by psychiatrist Professor Aleksandr Janca who concluded that Mr Ugle was unfit to plead. Mr Ugle was committed to the District Court in September 2021. The matter came before me to determine the issue of fitness to plead.
There has never been any contest that Mr Ugle is unfit to plead and unlikely ever to become fit to plead. The only real issue for me to determine is whether to make a custody order or release Mr Ugle unconditionally.
Although Mr Ugle first appeared in the District Court on 29 September 2021 and the first fitness to plead hearing was listed on 11 October 2021, it has not been possible to finally determine the matter until now. I have adjourned the matter on many occasions to permit the defence to obtain evidence of a proposal for Mr Ugle to be released safely into the community.
At a hearing in December 2023 the defence presented a plan which would enable Mr Ugle to be supported in the community. Mr Ugle was released on home detention bail in January 2024. Unfortunately, shortly thereafter, Mr Ugle breached bail and was arrested. The consequence of that was that the accommodation was no longer available. Mr Ugle was returned to custody. He was re-released in March 2024. When the matter came before before me on 6 June 2024, the defence presented another suitable plan for Mr Ugle's release. The State now joins with the defence submission that I order that Mr Ugle be released unconditionally.
For the reasons to follow I make an order that Mr Ugle is unfit to plead and that he be released unconditionally.
The accused's mental fitness to stand trial
The test of whether a person is mentally fit to stand trial is set out in s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA) which reads:
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.
A mental impairment is defined in s 8 of the CLMIA as being an 'intellectual disability, mental illness, brain damage or senility'.
By s 10 of the CLMIA, an accused person is presumed to be mentally fit to stand trial unless the contrary is found.
I must decide the question of whether the accused is mentally fit to stand trial on the balance of probabilities after I inquire into the question and inform myself in any way I think fit: s 12 CLMIA.
Medical evidence
Professor Aleksandr Janca
Professor Aleksandar Janca interviewed Mr Ugle on 6 August 2021 at Casuarina Prison and subsequently prepared a written report dated 17 August 2021.
Professor Janca administered cognitive testing the results of which indicated possible dementia. Professor Janca recommended referral to a doctor for screening to rule out other causes of cognitive impairment, some of which are reversable, or which would substantiate dementia.
In preparing his report, Professor Janca had accessed various Community Corrections' reports concerning Mr Ugle dating back to the year 2014. Those reports included a PATCHES Multi-disciplinary Foetal Alcohol Spectrum Disorder Adult Assessment Report completed by Dr James Fitzpatrick and Dr Candy Cheung dated 19 July 2018.
Professor Janca concluded that Mr Ugle had obvious impairment in cognitive function and diagnosed him with a neurodevelopment disorder (ie: neurodevelopmental disorder associated with prenatal alcohol exposure/foetal alcohol spectrum disorder and attention deficit hyperactivity disorder).
Professor Janca considered that Mr Ugle did not meet any of the seven criteria for fitness in s 9(a) - s 9(g) of the CLMIA. In other words, he thought that Mr Ugle did not understand the nature of the charge, the requirement to plead to the charge, the purpose of his trial, the right to challenge jurors, and would be unable to follow the course of a trial or understand the substantial effect of evidence presented by the prosecution. He would not have the ability to properly defend the charge.
Professor Janca considered that Mr Ugle's diagnosed psychiatric conditions were chronic in nature and unlikely to change in the next six or more months.
Professor Janca provided a further report on 3 February 2022. He said that since the last time he had seen Mr Ugle in August 2021, there had been no significant change in his mental state and cognitive functioning. Professor Janca made the following recommendations:
19.In my opinion Mr Ugle requires prolonged psychiatric and psychological treatment and monitoring. His symptoms of ADHD might respond to adequate psychostimulant or other psychotropic medication. His lack of insight, poor judgment, impulsivity and anti-social behaviour may be modified by psychological treatment which would be focussed on anger management and other CBT strategies.
20.Should Mr Ugle be given a custodial disposition, his mental state should be monitored by prison medical services including provision of adequate psychotropic medication for his ADHD and other symptoms.
21.Should Mr Ugle be given an non-custodial disposition he should be referred to an appropriate mental health treatment program which has a multidisciplinary team including psychiatrist, psychologist, social worker, occupational therapist and a case manager.
22.Appointment of a guardian would be benefit for the improvement of Mr Ugle's overall functioning in the community and prevention of reoffending behaviour.
Dr Johnson Moyle
Dr Johnson Moyle Clinical Neuropsychologist, provided a report to the court dated 22 February 2022. He undertook testing to consider whether Mr Ugle had an intellectual disability.
Dr Moyle concluded that Mr Ugle had:
Core intellectual skills … consistent with those seen in people diagnosed with an intellectual disability, and he demonstrated similarly poor results across multiple measures demanding of attention and working memory, cognitive processing speed, language, memory and executive functioning. He was able to display age - appropriate non‑verbal skills. Whilst this is encouraging, I am concerned that he lacks the cognitive architecture to be able to reliably and consistently demonstrate similar abilities outside of the confines and structures of the cognitive assessment. Mr Ugle meets the cognitive criteria for an intellectual disability, and should be viewed as someone with an intellectual disability. His overall intellectual functioning was consistent with his previous assessment in 2016 as indicated in documentation provided to me.
Dr Moyle said 'I feel he would struggle to follow court proceedings and in the absence of scaffolding would not be able to reliably comply with orders imposed on him by the court'.
Dr Moyle made recommendations for his support. He recommended a referral to the National Disability Insurance Scheme (NDIS) to assist him in funding supports for him upon his release.
Conclusion on question of fitness to plead
Based on the foregoing medical evidence, I have no hesitation in concluding that Mr Ugle is unfit to plead and unlikely to be fit to plead within six months.
Relevant legal principles concerning whether a custody order should be made
Having satisfied myself that Mr Ugle is not fit to plead and is unlikely to become fit to plead within the next six months, I must follow the procedure set out in s 19(4) of the CLMIA which provides:
An order under this subsection is an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal, without deciding the guilt or otherwise of the accused and either -
(a)releasing the accused; or
(b)subject to subsection (5), making a custody order in respect of the accused.
Section 19(5) of the CLIMA sets out the criteria that must be satisfied before a custody order can be made. It provides:
A custody order must not be made in respect of an accused unless the statutory penalty for the alleged offence is or includes imprisonment and the judge is satisfied that a custody order is appropriate having regard to -
(a)the strength of the evidence against the accused; and
(b)the nature of the alleged offence and the alleged circumstances of its commission; and
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
As there is presently no indictment, I will order that the charge be dismissed and quash the committal. I do so without deciding whether Mr Ugle is guilty or otherwise.
Consideration of factors under s 19(5) of the Criminal Law (Mentally Impaired Accused) Act 1996
I now turn to the various factors I am required to consider under s 19(5) of the CLMIA in order to decide whether I should make a custody order or order for conditional release.
Section 19(5)(a) and s 19(5)(b) - The strength and nature of the prosecution case
The State alleges that on Thursday 10 December 2020 the accused went to the Woolstores Shopping Centre located at 17 Cantonment Street in Fremantle. He entered the Liquorland store, which is situated in the middle of the shopping centre, and walked directly to a wine shelf, retrieved a bottle of Jacob's Creek branded wine and approached the service counter. He then brandished the bottle and said to the attendant words to the effect of 'open the till and give me $200 or I will bash you over the head'. He continued to direct the attendant to open the till. The attendant who had his hands in the air, followed the accused's instructions, opened the till and handed him four $50 notes. The accused then placed the bottle on the counter and exited the store with the $200. He was captured on CCTV footage and later identified by police. The accused was arrested and conveyed to the Perth Watch House at 11.20 pm that evening. He was unfit to be interviewed as he was impaired by alcohol and drugs.
It is not suggested that there are any weaknesses in the present case against Mr Ugle. The nature of the present charge is objectively very serious as it concerns an allegation of violence. It is fortunate that nobody was seriously injured. No doubt the victim was very frightened. The public is entitled to be protected from conduct involving serious violence and the protection of vulnerable victims is a factor which I consider to be important.
These factors militate in favour of making a custody order.
Section 19(5)(c) - The accused's character, age, health and mental condition
Mr Ugle was born on 27 March 1995 and is now 29 years of age.
Mr Ugle has an extensive criminal record which includes offences for violence.
In particular, I note that on 19 November 2016 Mr Ugle was sentenced to a number of offences, including aggravated assault occasioning bodily harm and grievous bodily harm which resulted in a sentence of 2 years 9 months' imprisonment. Following his release from prison, he was convicted of a further 29 convictions, occurring on 18 separate dates, for which he received fines.
Mr Ugle has been in custody since his arrest. There are no issues with Mr Ugle's physical health. Mr Ugle's mental condition has been detailed by Professor Janca and Dr Moyle.
Mr Ugle's criminal record militates in favour of making a custody order.
Section 19(5)(d) - The public interest
In considering public interest factors, the time Mr Ugle has spent in custody is relevant. I should have regard to the amount of time spent in custody and the likely term of any period of imprisonment that would have been imposed had Mr Ugle been convicted of the offence: The State of Western Australia v Sanders [2012] WASC 409 [31].
Mr Ugle has been in custody for approximately three years in total. It is arguable that Mr Ugle would not be required to serve further time were he to be sentenced for the present offences. This factor militates against the making of a custody order.
I must also balance the competing considerations of community protection and the rights to liberty of an alleged offender. Relevantly, in Cohen v Gates [2018] WASC 247 [98], Hall J said:
In order to consider the question of whether a custody order is appropriate, the decision‑maker necessarily needs to balance the competing considerations of community protection and the right to liberty of an alleged offender not convicted of any offence. This exercise necessitates consideration of the risk posed to the community if a custody order were not made. What would occur if the alleged offender was not made subject to a custody order, is integral to the question of risk.
The purpose of the custody order is protective rather than punitive: The State of Western Australia v Stimpson [2019] WASC 279 [40].
Although, having regard to the risk of reoffending, the public interest favours Mr Ugle being kept in custody, there is also a public interest in ensuring that Mr Ugle is housed humanely and receives appropriate medication and support for his condition.
Mr Ugle does not qualify to be treated at an appropriate mental health facility or receive treatment under the Mental Health Act 2014 (WA). That is because he suffers from a neurocognitive disorder rather than a mental illness which can be treated. Although in theory Mr Ugle could be held in a 'declared place' under the Mental Health Act, it is unlikely to be deemed suitable given his significant impairment. See Huggins v The State of Western Australia [2018] WASCA 61.
Evidence of plan for Mr Ugle's accommodation and care
On the application of the defence, with the consent of the State, I have granted several adjournments to permit the defence to consult with the NDIS, relevant service providers and Mr Ugle's guardian in order that they can present evidence of a plan for Mr Ugle to be managed in the community.
At the hearing before me on 6 June 2024, counsel for Mr Ugle was able to inform the court that since Mr Ugle's release in March 2024 there had been no cause for concern. The State then conceded that it was appropriate that I allow Mr Ugle to remain on bail before making a final decision as to whether I should make an order to release him.
It is important that I mention that the many delays have not been occasioned by any lack of diligence on the part of Mr Ugle's lawyers. On the contrary, the care and attention that Ms Burgess has given to Mr Ugle's case has been exceptional. Rather, I would observe that the process of applying for NDIS funding and the identification of appropriate accommodation and support services for Mr Ugle has been complex and difficult. The court is aware of numerous applications, meetings, reports and correspondence involving counsel for Mr Ugle, Mr Ugle's guardian, Mr Ugle's support worker, NDIS and Centrelink personnel. I do not intend to detail all of those communications; but I have had regard to those communications. In particular I have had regard to various reports from Dot Humanity, a specialist support coordination service licenced by the NDIS to provide services in accordance with the NDIS funding agreement. I have also received regular oral updates from specialist support coordinators in the employ of Dot Humanity.
On the basis of the foregoing, I concluded there is a solid plan for Mr Ugle to live in the community. I am satisfied that the plan balances the requirement to consider the need for Mr Ugle to be housed humanely against the public interest in ensuring the safety of the community. The plan presented to the court militates in favour of me making an order for Mr Ugle's release.
I am fortified in my view that I should release Mr Ugle unconditionally because Mr Ugle has been on bail for nearly five months. In that time there have been no other breaches nor concerns expressed about the risk he poses to the community.
I have reason to believe that the present regime for Mr Ugle's care will be subject to ongoing funding by the NDIS. Were there to be no plan for Mr Ugle's accommodation and supervision on an ongoing basis, I would be unlikely to have exercised my discretion to release him unconditionally, given he is unlikely to be able to live independently and his risk of reoffending would be unacceptably high.
Observations on the adequacy of the current legislation
In a number of cases in this court, it has been observed that there is a deficiency in the legislation which means that the court has limited options to deal with a person who is unfit to plead. That is, the court may either make a custody order or an unconditional release order. See The State of Western Australia v B P [2019] WADC 63 and the observations of his Honour Chief Judge Sleight in the case of The State of Western Australia v S U [No 2] [2017] WADC 20 [45] - [47].
In this case, I do not consider that prison is an appropriate place to detain Mr Ugle long-term. I have no power to order where Mr Ugle should be detained. However, a guardian has been appointed to take care of Mr Ugle's affairs and the guardian can manage Mr Ugle's affairs into the future.
As his Honour the Chief Judge observed in The State of Western Australia v S U [No 2], the risk of reoffending is not the only consideration. His Honour said at [54] - [56]:
54However, the degree of risk of re-offending is not the only consideration. It is also in the public interest that people with mental illnesses are provided with the best possible treatment and care; and with the least restriction of their freedom and the least interference with their rights and dignity. Under s 5(2) of the Declared Places (Mentally Impaired Accused) Act 2015, one of the fundamental requirements is that:
Residents are to be provided the best possible training, including development programs that promote their physical, mental, social and vocational abilities.
55Also, pursuant to s 6 of the Declared Places (Mentally Impaired Accused) Act 2015, programmes and services for persons placed in the declared place must be designed and administered so as to provide a balance between protecting the community and also providing proper care and support for a person in a declared place. This balance under the section is achieved by requiring the programmes and services to be designed and administered so as to:
•Respect the rights of residents to be treated with dignity, courtesy and compassion; without discrimination or stigma; and with equality of opportunity [s 6(1)];
•Be sensitive and responsive to the diverse and individual circumstances and needs of residents taking into account their age, gender, spiritual beliefs, culture or linguistic background, family and lifestyle choices [s 6(2)];
•Reduce the risk of persons placed in the declared place offending or re-offending [s 6(4)(a)];
•Assist residents to live, work and participate in the community and be as independent as possible [s 6(4)(b)];
•Maximise quality of life for residents [s 6(4)(c)]; and
•Assist residents to be trained, developed and cared for in a manner that is the least restrictive option in the circumstances taking into account the need for protection and safety of residents and the community [s 6(6)].
56From these provisions I conclude that when considering the public interest, it is important to take into account that it is in the interests of the community that the accused be provided with skills and training and other forms of support to enable him to better cope with his mental impairment. In broad terms this could be described as rehabilitation, although of course, nothing can be done to improve his mental impairment. In Hogan v Hinch, French CJ at [32] stated in relation to provisions which provided for post custodial supervision and rehabilitation of sex offenders as follows:
Rehabilitation, if it can be achieved, is likely to bethe most durable guarantor of community protection and is clearly in the public interest.
(footnote omitted)
I note that Parliament has enacted the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI). The CLMI does not suffer from the same deficiencies as the CLMIA. However, the relevant provisions of the CLMI are not yet operative so the provisions of the CLMIA continue to operate.
Should I make a custody order or unconditional release order?
In all of the circumstances, it is now appropriate that I declare Mr Ugle unfit to plead and that he be released unconditionally.
Orders
The orders will be that:
1.Mr Ugle be declared unfit to plead; and
2.Mr Ugle be released unconditionally.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LB
Associate to Judge Lonsdale
19 AUGUST 2024
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