J W W

STATE OF TASMANIA v JWW 2 JULY 2020

COMMENTS ON PASSING SENTENCE PEARCE J

The defendant, JWW, was charged on 12 separate complaints with offences committed between January and September 2020. Only one of those offences, an assault on 25 September 2020, was committed when he was an adult. The rest were committed when he was a youth. All of the complaints came before a magistrate, Mrs T Jago. As a result of material put before her Honour, primarily a number of medical reports, she reserved the question of the defendant’s fitness to stand trial for investigation under Part 2 of the Criminal Justice (Mental Impairment) Act 1999. However, with the agreement of the prosecutor and defendant, her Honour acted under s 19(a) of the Act, dispensed with the investigation and recorded a finding that the defendant was unfit to stand trial. It is to be inferred from the course of the proceedings that her Honour, correctly, found that the defendant was not likely to become fit to stand trial within 12 months, because she conducted a special hearing for each charge on each complaint pursuant to s 15(2) to determine whether, despite the unfitness of the defendant to stand trial, on the limited evidence available the defendant was not guilty of the offence. A special hearing was conducted for each matter, and for the matters I will describe, her Honour determined, under s 17(d), that a finding could not be made that the defendant was not guilty of the offence charged or any offence available as an alternative. It followed, by operation of s 18(2) that the learned magistrate was required to adopt one of the following alternative courses, to:

(a) make a restriction order; or

(b) release the defendant and make a supervision order; or

(d) …

(e) release the defendant on such conditions as the court considers appropriate; or

(f) release the defendant unconditionally.

A restriction order is an order requiring the person to whom it applies to be admitted to and detained in a secure mental health unit until the order is discharged by the Supreme Court: s 24. A supervision order is an order releasing the person to whom it applies under the supervision of the Chief Forensic Psychiatrist and on such conditions as to the supervision of that person and such other conditions as the court considers appropriate: s 29A(1). By s 18(3), only the Supreme Court may make a restriction order or supervision order. In the Act, a forensic order means a restriction order or a supervision order: s 3. The learned magistrate formed the opinion that a supervision order should be made. Having formed the opinion that a forensic order should be made in respect of a defendant, her Honour exercised the power given to her by s 36A(1) to refer the matter to this Court for determination.

On that referral, I was therefore required by s 36A(2)(a) to enquire into the circumstances of the case. I have the same powers to deal with the defendant as if the defendant had been dealt with in the Supreme Court: s 36A(2)(b).

It is necessary for future clarity and ease of understanding to describe the conduct which gives rise to the proceedings. At the special hearings the magistrate was satisfied that she was unable to find the defendant not guilty of the following matters. I will expand on the circumstances of the offences later:

On 20 January 2020 possession of cannabis (complaint 31522/20);
On 7 April 2020 possession of cannabis (complaint 51626/20);
On 22 April 2020 assault a police officer (complaint 51475/20, count 4);
On 30 May 2020, failed, in breach of the Public Health Act 1997, s 16(3), to comply with a direction of the Director of Public Health under that Act to, without an essential reason to leave, remain within his primary residence. On the same day, abusing, resisting and three counts of assault police (complaint 52074/20, counts 3, 4, 5, 6, 7 and 8);
On 21 June 2020, trespass and unlawfully injuring property (complaint 52944/20, counts 1 and 2);
On 1 July 2020, two counts of burglary, two counts of stealing, one count of trespass, two counts of assault a police officer and one count of resisting a police officer (complaint 52500/20, counts 1 to 8 inclusive);
On 30 July 2020 stealing (complaint 53100/20);
On 9 August 2020, destroying property and assault (complaint 53099, counts 1 and 2);
On 13 August 2020, breach bail by failing to appear (complaint 53101/20);
Overnight between 14 and 15 September 2020, trespass (complaint 53523/20);
On 16 September 2020, wounding, three counts of common assault, one count of assaulting a police officer and one count of resisting a police officer (complaint 53524/20, counts 1-6 inclusive);
On 25 September 2020, common assault (complaint 54191/20).

The defendant is an 18 year old aboriginal youth. The following summary comes primarily from the State’s statement of facts supplemented and confirmed by me from the material supplied from the Magistrates Court.

When, in January and April 2020, the defendant was found with cannabis, the circumstances suggest he was living an itinerant life. The first occasion was just after 5.00 am when he was found in a car park in Launceston. On the second occasion he was wandering in Upper Burnie at about 2.00 am.

The assault of a police officer on 22 April 2020 occurred after he had been arrested in the early hours of the morning in Burnie. He was behaving erratically and aggressively. The police arranged for him to be treated by paramedics for an injury to his hand which had been bleeding, and then took him to the police station. He was presented by Constable Joel Crates to the custody sergeant. His erratic and aggressive behaviour had continued throughout and, after abusing the custody sergeant, the defendant turned and attempted to bite Constable Crates on the arm.

On 30 May 2020 the police were called to a home in Cooee where the defendant had been causing a disturbance. It was at a time when the director of Public Health’s direction requiring persons to remain in their primary residence unless for specified purposes was in force so as to manage the health risks posed by the COVID-19 pandemic. The defendant was found slumped on a couch in the shed of another nearby home. He had been bailed to a different address. He was arrested and taken to the police station. As he was presented to the custody sergeant he became abusive and violently resisted. When the attending police officers attempted to restrain him he became violent and repeatedly spat at them. He assaulted one female police officer, Constable Chelsea Becker, by attempting to punch her. He assaulted another female police officer, Constable Samantha de Jong, by attempting to bite her hand. After taking a swing at Constable Jonty Lanham, he assaulted him by spitting directly onto his face and into his mouth.

The trespass and damage to property charges on 21 June 2020 arose as a result of the defendant breaking into a home in Burnie and squatting in it.

On 1 July 2020 the defendant entered the police compound in Burnie. He broke into two police vehicles and stole items from inside worth a total of about $90. He was arrested by two police officers, Acting Sergeant Matthew de Bomford and Constable Joel Crates. He was taken to the Burnie police station. In the course of being presented to the custody sergeant, he assaulted Acting Sergeant de Bomford by spitting onto his face and lips. He was restrained but continued to spit and struggle violently. After he was taken to a cell, he assaulted another police officer, Acting Sergeant Cameron Little, by spitting at his face, although the spittle did not strike him.

On 30 July 2020 the defendant stole a snack worth $5 from Woolworths in Burnie.

On 9 August 2020 the defendant was in a supermarket in Burnie from which he was barred, and destroyed grocery items worth about $10 when he was asked to leave. As he left he assaulted a female, Kristina Parker, by raising his fists near her face and threatening to strike her. On 13 August 2020 he breached his bail conditions on a number of complaints by failing to appear in the Magistrates Court. Overnight between 14 and 15 September 2020 the defendant trespassed in the Burnie Inn.

Some detail is required about the events of 16 September 2020. On that day the defendant committed a series of violent crimes, the evidence of which was in the form of a number of statutory declarations tendered to the court, the admission and contents of which was not disputed. At the time the defendant was living with Mr Clinton Walker, aged 49, in Mr Walker’s unit in Burnie. Mr Walker was looking after him. At around 11.30 am, the defendant’s child safety worker, Keith Seager, then aged almost 62, arrived as arranged, intending to give the defendant a birthday present and take him to lunch. The defendant became abusive when he did not want to get out of bed. He physically confronted both Mr Walker and Mr Seager. He picked up a 20 centimetre metal tube from the hallway floor and used it to strike Mr Walker three forceful blows to the head. While ranting incoherent abuse and while still holding the bar he turned his attention to Mr Seager. He spat at him twice, striking him once on his face. The defendant put the metal tube down, but as he did so he punched Mr Seager with a closed fist so hard to his jaw as to cause him to fall back against the wall and slump to the floor. The defendant then walked away. Shortly afterwards, while both Mr Walker and Mr Seager were outside the house, the defendant approached again. He spat on both men, and once again, having retrieved the metal tube from the house, struck Mr Walker to the head with it. Mr Walker lost consciousness and slumped to the footpath. Police officers, including Acting Sergeant John Cunliffe, were called to the disturbance. They found the defendant in the house and attempted to arrest and restrain him. The defendant violently resisted. In the course of doing so, he bit Acting Sergeant Cunliffe on the hand. Both Mr Walker and Mr Seager were treated for injuries sustained in the incident. Mr Walker suffered two superficial lacerations, amounting to wounds, to his scalp and tenderness to his neck. He was taken to the North West Regional Hospital where he was treated. Mr Seager sustained bruising and swelling to the left side of his jaw. He was treated by his general practitioner. Acting Sergeant Cunliffe was wearing gloves at the time of the arrest but suffered swelling and soreness to his knuckle. The incident resulted in serious ongoing psychological effects to each man.

As a result of the events of 16 September 2020, the defendant was remanded in custody at the Ashley Youth Detention Centre although, by then, he was an adult. Daniel Evans was a worker at the centre. Nine days later, on 25 September 2020, the defendant assaulted Mr Evans by grabbing him around the neck and punching him to the left side of his head once. The assault was unprovoked, and occurred when Mr Evans entered the unit at Ashley in which the defendant was then housed. He was not physically injured but he was understandably anxious and upset as a result of what occurred and his work and home life were affected.

As I am required to do, I sought a report from the Chief Forensic Psychiatrist. I have a report dated 8 June 2021 from his delegate, Dr Steve Patchett. Dr Patchett had access to the many assessments and reports which have been prepared in respect to the defendant over the years and the defendant’s medical records. He consulted with the multiple services and co-ordinators who have been involved. Dr Patchett reports that the defendant has a number of psychiatric and developmental comorbidities: schizophrenia, attention deficit hyperactivity disorder, foetal alcohol syndrome disorder, mild intellectual disability and substance abuse disorder. His parents have mental illness and were prone to substance abuse and violence. He was not adequately supervised or controlled as a child. He has a full scale IQ of 63, little education and has chronically abused substances. He has multiple and challenging treatment and management needs with limited insight into his mental illness and disabilities. He exhibits extreme emotional dysregulation and impulsive and aggressive behaviour. So much is apparent from the behaviour I have outlined in these comments. He has been a patient of the Wilfred Lopes Centre since being transferred from Ashley Youth Detention Centre on 30 September 2020. He continues to endanger other patients and staff at Wilfred Lopes and according to Dr Patchett, his impulsive and aggressive behaviour would almost certainly recur if he is released into the community. All of the matters I have described are a very obvious cause for concern with regard to the safety of the community. For that reason I sought specific advice from the Chief Forensic Psychiatrist about whether a restriction order, rather than a supervision order, should be made. In conformity with the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, Dr Patchett does not recommend a restriction order. He indicates however that, if a supervision order is made, the defendant will not be released until adequate community resources as described in the recommended care plan referred to in Dr Patchett’s report are identified and commissioned. The plan will be funded through the joint initiatives of the Board of Exceptional Needs and the NDIS. The defendant’s schizophrenia and ADHD are currently managed by medication. However very close and careful management of his substance abuse disorder and other problematic behaviours will be required. In Dr Patchett’s opinion the defendant is likely to comply with a supervision order, if one is made, but only with assertive case management by Community Forensic Mental Health Services, behavioural management and continued antipsychotic LAI injections and abstinence from alcohol and drugs.

I have regard to the contents the report by the defendant’s next of kin, his mother, and the victim reports prepared by and for Constable de Bomford, Keith Seager, Clinton Walker, Senior Constable Cunliffe and Daniel Evans.

For those reasons I make a supervision order releasing the defendant under the supervision of the Chief Forensic Psychiatrist. There will be conditions of the order that the defendant:

(a) comply with the reasonable directions of the Chief Forensic Psychiatrist or his delegate as to supervision;

(b) take medication or submit to the administration of medical, psychological or psychiatric treatment as determined by the Chief Forensic Psychiatrist or his delegate;

(c) reside in accommodation approved by the Chief Forensic Psychiatrist or his delegate and not vary that accommodation without approval by the Chief Forensic Psychiatrist or his delegate;

(d) submit to the taking of blood or urine samples as required by the Chief Forensic Psychiatrist or his delegate for analysis for medication levels or for any other reason deemed necessary; and,

(e) that he does not leave the State of Tasmania without the consent of the Chief Forensic Psychiatrist or his delegate.