THE STATE OF WESTERN AUSTRALIA -v- GARLETT [2026] WADC 45

[2026] WADC 45 [2026] WADC 45 [JM] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- GARLETT [2026] WADC 45 CORAM : ASTILL DCJ HEARD : 2 JUNE 2026 DELIVERED : 8 JUNE 2026 FILE NO/S : IND 152 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND CYRIL BENEDICT GARLETT Catchwords: Criminal law - Trial by judge alone - Aggravated assault with intent to steal whilst armed - Unlawful assault occasioning bodily harm - Criminal damage - Being armed in a manner likely to cause fear - Unlawfully doing grievous bodily harm to another - Insanity - Whether accused mentally impaired - Whether accused lacked capacity to control actions - Whether accused lacked capacity to know that he ought not do the act - Whether voluntary intoxication contributed to mental impairment Legislation: Criminal Code (WA) Criminal Law (Mental Impairment) Act 2023 (WA) -- 1 of 41 -- [2026] WADC 45 [2026] WADC 45 [JM] Page 2 Criminal Procedure Act 2004 (WA) Evidence Act 1906 (WA) Sentencing Act 1995 (WA) Result: Accused not guilty on each count on account of mental impairment Representation: Counsel: The State of Western Australia : Ms S C Casey Accused : Mr M Hager Solicitors: The State of Western Australia : State Director of Public Prosecutions Accused : Tudori Hager Grubb Case(s) referred to in decision(s): Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 Campbell v The Queen [1981] WAR 286 Evans v The State of Western Australia [2010] WASCA 34 Hawkins v The Queen (1994) 179 CLR 500 Hone v The State of Western Australia [2007] WASCA 283 Houghton v The Queen [No 2] [2004] WASCA 20 Kaminski v The Queen [1975] WAR 143 Kingdon v The State of Western Australia [2012] WASCA 74 Lange v The State of Western Australia [2021] WASCA 165 Li v The State of Western Australia [2025] WASCA 75 Pezzano v The State of Western Australia [2020] WASCA 181 R v Porter [1933] HCA 1; (1933) 55 CLR 182 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 Stefanski v The State of Western Australia [2022] WASCA 5 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Taylor v The Queen (1978) 45 FLR 343 The State of Western Australia v Chokolich [2024] WASC 346 -- 2 of 41 -- [2026] WADC 45 [2026] WADC 45 [JM] Page 3 The State of Western Australia v Herbert [2017] WASC 101 The State of Western Australia v Majok [2005] WASC 13 The State of Western Australia v Marotta [2018] WASC 329 The State of Western Australia v McCullock [No 2] [2024] WASC 400 The State of Western Australia v Quartermaine [2020] WASC 458 The State of Western Australia v Taylor [2021] WASC 470 Van Den Berg v The Queen [1984] WAR 162 Ward v The Queen [2000] WASCA 413 Zimmerman v The State of Western Australia [2009] WASCA 211 -- 3 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 4 ASTILL DCJ: Introduction 1 By indictment dated 5 May 2026, Mr Garlett has been charged with eight offences contrary to the following provisions of the Criminal Code (WA) (Code): 1. One count of aggravated assault with intent to steal whilst armed contrary to s 393 (count 1). 2. Three counts of criminal damage contrary to s 444 (counts 2, 4 and 7). 3. One count of being armed with an offensive instrument in circumstances likely to cause fear contrary to s 68 (count 3). 4. Two counts of unlawful assault occasioning bodily harm contrary to s 317 (counts 5 and 6). 5. One count of unlawfully doing grievous bodily harm to another contrary to s 297 (count 8). 2 On 23 April 2026 her Honour Chief Judge Wager ordered that Mr Garlett be tried by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA). 3 Mr Garlett's trial was conducted before me on 2 June 2026. 4 At the commencement of the trial, pursuant to s 126(1)(d) of the CPA Mr Garlett entered pleas of not guilty on the ground of mental impairment under s 27 of the Code. Formal admissions were made pursuant to s 32 of the Evidence Act 1906 (WA) (EA) (s 32 admissions)1 in relation to each of the elements underpinning counts 1 - 8 on the indictment and the facts as contained within the State's amended statement of material facts dated 16 February 2025.2 Those admitted facts are relied upon by the State in support of its case against Mr Garlett. 5 Resolution of this trial, as it relates to each count, requires determination of the following two questions: 1 Exhibit 1. 2 Exhibit 3. -- 4 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 5 1. Was Mr Garlett mentally impaired with the meaning of s 27(1) of the Code at the time that he did the act, or acts that constitute the elements of the offence with which he has been charged? 2. If Mr Garlett was mentally impaired at the time of doing the relevant act, or acts, did his impairment deprive him of one or more of the capacities specified in s 27(1)? 6 Both the State and Mr Garlett adduced expert psychiatric evidence as to Mr Garlett's state of mind at the relevant times. Both positively submitted that I could be satisfied on the balance of probabilities that Mr Garlett was deprived of the capacity to know that he ought not do the act or make the omission giving rise to criminal responsibility. 7 For the reasons that follow, I find Mr Garlett not guilty on account of mental impairment in respect to each of the eight counts with which he has been charged. Legal principles 8 Pursuant to s 119(1) of the CPA, a judge sitting alone must apply, so far as practicable, the same principles of law and procedure as would be applied in a trial before a jury. Section 120 requires the trial judge to outline in the judgment the principles of law that they have applied and the findings of fact upon which they have relied. General principles 9 An accused person is presumed to be innocent of the charge, or charges, presented against them. That presumption remains until such time as their guilt is proven to the criminal standard. If guilt is not proven the presumption of innocence remains. 10 The burden of proving an accused person's guilt is on the State. An accused person does not have to prove their innocence; indeed, they do not have to prove anything. 11 The standard of proof required is proof beyond reasonable doubt. It is sufficient for me to say that this is the highest standard known to the law. It is a high standard, but it is not an impossible standard. 12 To discharge that burden, the State must prove beyond reasonable doubt each of the elements of the offence alleged against Mr Garlett. -- 5 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 6 13 One of the aspects of the onus of proof being on the State is that the accused has at all times, a right to silence. The right to silence does not commence in this court. A person who is arrested by the police has that right from the beginning and it continues to the trial. An accused person is not obliged to speak to the police or to give evidence at their trial, but they may do so if they wish. In this case Mr Garlett chose to exercise his right to silence. It would be wrong to draw any adverse conclusion from the exercise of that right. The silence of the accused is not evidence against him. Nor can it be used to support any inference adverse to him. The fact that an accused person chooses to remain silent is not an admission of anything. It cannot be used to fill in any gap in the prosecution case nor does it strengthen it. 14 I must decide the case based on the evidence which has been presented during the trial. I must assess the evidence dispassionately, in a rational and impartial way. My decision cannot be based on prejudice against, or sympathy towards, anyone. My task is to consider what logical conclusions can be drawn from the evidence as a whole. 15 I must not guess or speculate about matters not in evidence or look for theories that are not supported by the evidence. I am permitted to draw inferences. Inferential reasoning is not speculation. Inferential reasoning is the drawing of a logical deduction from the proven facts. 16 If it is necessary to draw inferences as to essential facts from the evidence, I am not permitted to draw an inference adverse to the accused unless that inference is the only reasonable one open on the evidence. In deciding what inferences are reasonably open from the evidence it is important not to look at the evidence in a piecemeal way but as a whole to see what inferences can be drawn. If there is an innocent explanation that is open then an inference of guilt cannot be drawn. 17 I am the judge of the law and of the facts. I must assess the honesty, accuracy and reliability of each of the witnesses. A witness may be honest, but unreliable. I should only act on evidence that I find to be honest, accurate and reliable. 18 I can choose to accept and reject a witness's evidence, either in part or in whole. In doing so, I am bound to consider all of the evidence presented at trial. It is for me to decide what weight is to be given to the evidence. -- 6 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 7 19 In the present case, the forensic psychiatrists called by the State and the defence are largely in agreement in their opinions in this case. While I am not bound to accept and act upon expert evidence, I am not entitled to disregard it capriciously.3 20 I am required to consider and decide each charge separately, on the evidence relevant to that charge. I must not reason automatically from a finding on one charge to the same finding on the other. My verdicts need not be the same on each charge. I must not draw any inference against the accused as a result of the fact that there are eight charges and I must not engage in propensity reasoning in arriving at my conclusion. Agreed facts and evidence 21 Section 93 of the CPA relevantly provides: (1) If an accused pleads not guilty to a charge on account of mental impairment and the judge is satisfied - (a) that the only fact in issue between the accused and the State is whether, under The Criminal Code section 27, the accused is not criminally responsible for an act or omission on account of mental impairment; and (b) that the prosecutor consents, and the accused does not object, to the judge doing so; and (c) that it is in the interests of justice to do so, the judge - (d) may decide the issue referred to in paragraph (a) on any evidence and in any manner the judge thinks just; and (e) for that purpose, may ascertain any fact by the verdict of a jury or otherwise; and (f) may find the accused not guilty of the charge on account of mental impairment; and (g) if such a finding is made and a jury has been sworn to give a verdict on the charge, must discharge the jury from giving its verdict on the charge. … 3 Hone v The State of Western Australia [2007] WASCA 283 (Hone). -- 7 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 8 22 The parties have consented to an agreed statement of facts, which has been admitted by Mr Garlett pursuant to s 32 of the EA, together with an agreed timeline which is relied upon.4 I am satisfied that it is in the interests of justice to receive the amended statement of facts and the agreed timeline of events as establishing the factual circumstances relevant to the determination of the issues in this case. 23 The amended statement of facts are in the following terms:5 Count 1 - AR 5770/23 1. At about 6.55 pm on Thursday 20 April 2023, the accused was driving a silver Ford Focus registration [redacted] in a south-easterly direction on Cameron Street Langford. 2. The accused stopped his vehicle in the vicinity of [an address in Langford]. The accused stopped alongside the complainant. The complainant was sitting in his red Holden Barina registration [redacted] which was parked on the side of the road. The complainant was parked as he had just dropped a friend off. 3. The complainant was unsure what was occurring, so he wound his driver's side window down. The accused did the same to his passenger's side window. The accused then said, 'Do you have your wallet or your phone on you'. As the accused said it, he held up a meat clever in his right hand. The complainant was scared and said, 'No I don't'. The accused then leaned towards the complainant and pointed the knife at him. The complainant drove off towards the end of the street, although he drove over a curb and his vehicle stopped working. 4. The accused drove after the complainant and stopped behind the complainant. The accused came up to the complainant's driver's side window. The accused hit the window with the knife causing it to shatter. The accused shouted, 'Open your door right now'. The complainant was scared and told the accused he needed to open it from the outside. The complainant gave the accused the key. At the time the complainant's locks were faulty and had to be opened from the outside. 5. The accused opened the door and learnt into the car whilst holding the knife. The accused shouted, 'I know you have your wallet or phone' and 'don't play around, don't fuck with me'. The complainant gave the accused his phone, and the accused told him to unlock it. As the complainant unlocked his phone 4 Exhibit 2. 5 Exhibit 3. -- 8 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 9 the accused put the knife against the complainant's skin and cut down his face. This caused a laceration and bleeding to the complainant's face. The complainant felt intense pain in his face. 6. The accused then put the knife on the complainant's leg and said, 'Do you want me to cut your fucking leg off'. The accused then put the knife on the complainant's wrist and said, 'Do you want me to cut your fucking arm off'. The accused then said, 'Go into your banking app right now'. The complainant said, 'Okay, I'll do whatever you want' and opened his banking app. The complainant's bag then dropped out of the car and the accused said, 'what the fuck are you doing, I've been dying to kill someone all night'. 7. The complainant then accessed his banking app, and the accused told him to send him $2,000 through pay ID. The accused saw the complainant had about $6,000 in his account. The accused then demanded the complainant transfer him $5,000. The complainant transferred $5,000 through pay ID to [mobile number redacted]. The accused then walked back to his car and drove off. The complainant immediately called police who attended and took photographs of his facial injury and the broken window of his car. 8. The accused's intention during the incident was to steal money from the complainant. The accused used violence, and threatened violence, in order to obtain the money (count 1). 9. The complainant was able to have the $5,000 transfer reversed. Banking records reveal the money was transferred into an account registered in the accused's name. The complainant subsequently participated in a photoboard identification procedure and identified the accused. Count 2 - AR 5774/23 10. This incident occurred shortly after the commission of Count 1. 11. At about 7.10 pm on Thursday 20 April 2023 the second complainant was delivering food for Door Dash in a rental vehicle. The rental vehicle was a black Hyundai Getz bearing registration [redacted]. 12. The complainant was delivering an order to [an address in Queens Park]. Whilst driving along Roe Highway Welshpool, the complainant was in front of the accused who was still driving the silver Ford Focus registration [redacted]. The complainant was driving at approximately 100 km's/h. The accused started flashing the complainant with his high beams for one to two minutes. The accused then started honking his horn at the complainant. -- 9 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 10 13. The accused overtook the complainant and started breaking in front of the complainant which required the complainant to slow down. The accused then stopped in the middle of the road blocking the complainant's lane. The accused exited his vehicle and approached the complainant's vehicle. The complainant was scared and started to reverse. The accused managed to reach the complainant's passenger side window where he smashed the window (count 2). 14. The complainant then drove off and continued to [an address in Queens Park]. When the complainant arrived, he was getting out of his vehicle when the accused appeared and started punching him. The complainant didn't realise the accused had followed him and he asked, 'Why are you hitting me'. The accused was swearing and referred to the complainant having done something wrong whilst driving. The accused then leant against the complainant's vehicle leaving a visible handprint on his window. The accused then drove off. 15. The incident was witnessed by [named person] who lived at [an address in Queens Park]. [Named person] recorded the accused's registration plate and provided it to police. The visible handprint on the complainant's window was examined and a fingerprint matching the accused was identified. The complainant also participated in a photoboard identification procedure and identified the accused. Counts 3, 4 & 5 - AR 5772/23, 5772/23 & AR 5771/23 respectively 16. This incident occurred shortly after the commission of Count 2. 17. At about 7.40 pm on Thursday 20 April 2023, the third complainant was driving his white Hyundai Accent registration [redacted] along Wharf Street Queens Park. The accused was driving behind him. The accused was still driving the silver Ford Focus registration [redacted]. 18. The accused started beeping his horn at the third complainant. The accused was driving very close to the third complainant such that the third complainant couldn't see the accused's registration plate. The accused continued beeping his horn, so the third complainant pulled over to the left and waved for the accused to overtake him. The accused stopped behind the third complainant and continued to beep his horn, so the third complainant continued driving. 19. The third complainant approached the intersection at Wharf Street and Welshpool Road where he indicated to turn right. The accused did the same. Having seen that, the third complainant decided to turn left to get away from the accused. -- 10 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 11 When the third complainant turned left the accused followed. The third complainant was scared and believed the accused was following him. 20. The third complainant pulled into a 7-Eleven carpark. The accused parked next to him. The accused got out of the vehicle and approached the third complainant's driver's side window. The accused shouted, 'I'll punch you', 'come out', and 'I'll kill you'. The third complainant said, 'It's okay, you go'. The accused then raised his fists and adopted a fighting stance. The third complainant was scared and refused to open his door or window. 21. The accused then walked back to his car. The third complainant started driving away. The third complainant looked in his rearview mirror and saw the accused had moved his car so that he was now blocking the third complainant. The accused started walking back towards the third complainant's vehicle. The third complainant saw the accused had a meat clever in his hand which caused him and other persons present to be fearful (count 3). The accused was yelling 'get out of the car, I'll kill you'. 22. The accused started hitting the third complainant's window with the knife whilst yelling. The third complainant moved over to the passenger side as he thought the window was going to break as the accused hit it forcefully several times. This caused multiple scratches to the third complainant's driver's side window and door (count 4). 23. Whilst this was occurring [the fourth complainant] was parked at the 7-Eleven. The fourth complainant was watching the accused strike the third complainant's car with the meat clever. The fourth complainant could also hear the accused yelling. The accused then walked back to his vehicle and put the knife away. The accused then got into the driver's seat. The fourth complainant thought the incident was over, so he got out of his car and started walking towards the 7-Eleven entry. 24. The accused then said to the fourth complainant, 'What's up with you, cunt'. The accused then quickly walked over to the fourth complainant. The fourth complainant was fearful of the accused. The accused then punched the fourth complainant five times to the head with a closed fist. The fourth complainant immediately felt pain and the taste of blood in his mouth. The fourth complainant suffered bodily harm due to the assault (count 5). The accused then walked back to his car and drove off. -- 11 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 12 25. Parts of the incident were caught on CCTV. It was also witnessed by several people, some of whom recorded the accused's registration plate. The fourth complainant subsequently participated in a photoboard identification procedure and identified the accused. Arrest for count 1 - 5 26. At about 8.50 pm on Thursday 20 April 2023 police officers were pursuing the accused in the silver Ford Focus registration [redacted] due to reports arising from the previous incidents. Following pursuit police were able to stop the accused and arrest him. 27. During the arrest police identified the accused was wearing clothing that matched what he was wearing during the incident subject to counts 3, 4 and 5. Police then search his vehicle and found a meat clever sitting between the driver's seat and centre console. The accused was charged with several offences and his bail was refused. Count 6 - PE 29671/24 28. The accused was released to bail on 19 December 2023 after having served 244 days in custody. 29. At about 5:30pm on Saturday 25 May 2024, the accused was walking in the vicinity of [an address in Langford]. This is the address of the fifth complainant. The accused lived nearby at [an address in Langford]. The fifth complainant started reversing his vehicle out of his driveway and onto the road. The fifth complainant's wife was also in the vehicle. 30. As the fifth complainant was reversing, he saw the accused walking towards him. The fifth complainant stopped and wound his driver's side window down. The accused immediately punched the fifth complainant once to his right cheekbone (start of continuing assault subject to count 6). The fifth complainant felt immediate pain and was confused as to what was happening. 31. The fifth complainant moved across towards the centre console to try and get away from the accused. The fifth complainant then closed the window. The accused kicked the side of the fifth complainant's vehicle. The accused said, 'Are you Travis'. The fifth complainant opened his door and said, 'My name is not Travis. Mine is [name redacted] and I'm from the UK. What's your problem'. -- 12 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 13 32. The accused then punched the fifth complainant again to the same cheekbone (end of continuing assault subject to count 6). The fifth complainant again felt immediate pain in his cheek bone [sic]. The fifth complainant's wife told the fifth complainant to drive away. The fifth complainant drove away from the area and his wife called police. As a result of the assault the fifth complainant suffered bodily harm. 33. The fifth complainant subsequently participated in a photo board identification procedure and identified the accused. Count 7 - PE 29672/24 34. This incident occurred shortly after the commission of Count 6. 35. At about 6.45 pm on Saturday 25 May 2024, the accused was at the BP service station on Nicholson Road Langford. The sixth complainant arrived at the service station in his Toyota Landcruiser registration [redacted]. The sixth complainant parked in front of the night counter and exited his vehicle. 36. As the sixth complainant got out of his vehicle, he heard the accused call him a 'faggot' in an aggressive voice. The accused said, 'You think you're better than me because you're dressed better than me. You think you're top shit'. The sixth complainant was dressed up as he was on his way to a 21st birthday party. The sixth complainant then shook his head and the accused said, 'Don't shake your head at me cunt. I'll bash you'. 37. The sixth complainant went inside and purchased some chewing gum. The accused followed him inside. As the sixth complainant was leaving the accused said, 'Wait outside for me cunt. I'll drag your head along the floor'. The sixth complainant walked outside and got in his vehicle. The sixth complainant locked the doors, as he was fearful the accused might do something. 38. The accused came out and approached the sixth complainant's driver's door. The accused yelled, 'Get out of the car. I'll bash you'. The accused tried to open the door but was unable too [sic] as it was locked. The accused then completely ripped the driver's side door handle off and threw it at the vehicle (count 7). The accused then walked off. The cost to repair the door handle was $285. 39. The incident was caught on CCTV. Count 8 - PE 29670/24 40. This incident occurred shortly after the commission of Count 7. -- 13 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 14 41. At about 10 pm on Saturday 25 May 2024, the accused re-attended the BP station on Nicholson Road Langford. The accused was wearing the same clothing as he was wearing in the CCTV that captured Count 7. 42. The seventh complainant arrived at the service station with his wife. The seventh complainant was driving his Toyota Camry registration [redacted]. The seventh complainant exited his car and attended the night window to buy some tobacco. The accused approached the same night window. 43. The accused said to the seventh complainant, 'What did you say mate'. The seventh complainant replied, 'I said nothing'. The accused grabbed the seventh complainant by the neck and pushed him backwards. The seventh complainant did not want to fight and immediately began retreating into the forecourt to get away from the accused. The accused pursued the seventh complainant and pushed him to the chest area. 44. The accused then unlawfully punched the seventh complainant to the jaw (count 8). The punch was forceful and the seventh complainant immediately lost consciousness and fell backwards onto the concrete floor. The accused walked away but then walked back to the seventh complainant and lifted his arm. The seventh complainant's arm was limp as he was still unconscious. 45. The seventh complainant's wife then ran over, and the accused walked back towards the night window. The accused purchased some orange juice and walked away from the area. The entire incident was caught on CCTV. A witness also captured a short video of the accused standing over the seventh complainant. 46. [A named person] witnessed the incident, and he followed the accused when he left the service station after the assault. [The named person] followed the accused to the vicinity of [an address in Langford]. At around 10.10 pm police were patrolling the area looking for the accused. [The named person] directed them to that area. Police arrested the accused at his home address in Langford. 47. The seventh complainant was taken to hospital in an ambulance. Investigations revealed the seventh complainant had: 47.1. A left subdural hematoma; 47.2. Left subarachnoid haemorrhage; 47.3. Contracoup bifrontal subdural hematoma with an associated subarachnoid haemorrhage; -- 14 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 15 47.4. Fracture through the left temporal bone with extension posteriorly involving the parieto-occipital suture; and 47.5. Pneumocephalus. 48. The seventh complainant was intubated and required intracranial monitoring. Intubation was necessary as the seventh complainant's breathing was compromised by his head injury. The seventh complainant developed excessive brain swelling and had to have surgery to remove bone from his skill [sic] to reduce the swelling. 49. If the seventh complainant did not have surgery, the pressure inside his brain would've likely risen to such a degree that his brain would've forced its way down the foramen magnum. This would have compromised the ability of the breathing centre of the brain to work. This would have resulted in death. Following the injury the seventh complainant had to learn to walk again. Since the incident the seventh complainant's memory has also been poor. … (original emphasis) Elements of each offence 24 I cannot find Mr Garlett guilty of a count that is alleged against him unless the State has proved each element of that offence beyond reasonable doubt. 25 Where the State alleges a circumstance of aggravation, that matter does not constitute an element of the offence, but must nevertheless be proved beyond reasonable doubt if it is to be established. Consideration of whether such a circumstance has been proved to that standard arises only if I am first satisfied beyond reasonable doubt of Mr Garlett's guilt in respect of the charged offence. 26 Before I could find Mr Garlett guilty of any of the counts alleged against him, I must first be satisfied that he is the person who committed the act or omission constituting the offence. This is the element of identity, which is common to all counts. Pursuant to the s 32 admissions, Mr Garlett has admitted his involvement in each of the offences the subject of the counts. Accordingly, identity is not in issue and, on the basis of that admission, I am satisfied beyond reasonable doubt that this element is established in respect of each count. -- 15 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 16 Aggravated assault with intent to steal whilst armed 27 To establish the offence of contravening s 393 of the Code, the prosecution must prove each of the following elements beyond reasonable doubt: 1. That the accused had the intention to steal. Under s 371 of the Code, a person steals if they take something capable of being stolen, or convert property, with the intention of permanently depriving the owner of it. For the purposes of this provision, 'intention' means to bring about a specific result.6 A person will therefore have the intention to steal if their purpose was to take such an item, or to convert property, in order to permanently deprive the owner of it. 2. That the accused either used violence or threatened to use violence. 'Violence' refers to the application of physical force intended to cause injury to another person. To 'threaten violence' means expressing an intention to cause such injury, though it is not necessary to prove that the person genuinely intended to carry out the threat. 3. That the violence was used, or threatened, for the purpose of obtaining the property in question, or for preventing or overcoming any resistance to its taking. The relevant intention must have been held for the purposes of achieving that specific result. 28 The prosecution alleges that Mr Garlett intended to steal 'money' from the named complainant by compelling him to make an electronic transfer of $5,000 into an account from which Mr Garlett could withdraw the funds. Mr Garlett accepts that he, at a minimum, held that intention. In light of that admission, it is not necessary for me to determine whether an electronic transfer constitutes 'money' or property capable of being stolen for the purposes of s 370 or s 371(7) of the Code.7 6 Kaminski v The Queen [1975] WAR 143. 7 Kingdon v The State of Western Australia [2012] WASCA 74. -- 16 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 17 29 Further, as Mr Garlett accepts that he held that intention, any issue as to his capacity to form that intention by reason of any mental impairment operating at the relevant time, does not arise. However, I note that the issue of insanity would ordinarily fall to be determined before the question of intent.8 30 Mr Garlett admits he used violence to the named complainant to obtain the money he intended to steal from him. On the basis of that admission, I am satisfied beyond reasonable doubt of the elements that constitute count 1. Circumstances of aggravation 31 Count 1 also alleges two circumstances of aggravation: 1. That Mr Garlett was armed with an offensive instrument, namely a knife; and 2. That Mr Garlett did bodily harm to the named complainant. 32 Pursuant to the s 32 admissions made by Mr Garlett, he admits both circumstances of aggravation. Ordinarily, this would provide a sufficient evidentiary basis for me to be satisfied beyond reasonable doubt that both circumstances have been established. 33 By definition, a circumstance of aggravation that properly falls within the meaning of s 7(3) of the Sentencing Act 1995 (WA) is not an element of an offence.9 A circumstance of aggravation is only ever relevant to determining the applicable maximum penalty, rather than to establishing an accused's criminal responsibility for the act or omission. 34 Where an accused's criminal responsibility depends upon proof of a purported circumstance of aggravation, that circumstance is, in truth, an element of the offence. In the present case, the alleged circumstances of aggravation are properly characterised as true circumstances of aggravation, rather than elements. 8 Hawkins v The Queen (1994) 179 CLR 500; Ward v The Queen [2000] WASCA 413; The State of Western Australia v McCullock [No 2] [2024] WASC 400 (McCullock). 9 Zimmerman v The State of Western Australia [2009] WASCA 211, McLure P [12], Pullin JA [62] - [63]. -- 17 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 18 35 As noted above at [29], once I am satisfied that Mr Garlett committed the act or omission that would ordinarily attract criminal responsibility, I must first determine whether he is relieved of that responsibility before proceeding to consider the final element of intention. Ordinarily, that question of guilt is resolved prior to addressing the maximum penalty that may apply if he is found criminally responsible. 36 Further, an accused who is relieved of criminal responsibility for the relevant act or omission is no longer liable to punishment. In such circumstances, the question of the applicable maximum statutory penalty becomes immaterial. 37 Although the question of whether a circumstance of aggravation has been established may bear upon the fixing of any limiting term under s 50 of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMIA), that issue appears to have been substantively addressed in The State of Western Australia v Chokolich10 and then developed further in McCullock.11 Adopting the Chief Justice's reasoning and applying it to the present case, it suggests the question of whether the circumstances of aggravation are proven will have no material effect at all. 38 In any event, it is clear that the issue of whether Mr Garlett is relieved of criminal responsibility pursuant to s 27 of the Code must be determined first before considering whether the alleged circumstances of aggravation have been established. If it is found that s 27 applies, the question of whether those circumstances of aggravation have been proven need not be considered further. 39 As noted at [7] above, and for the reasons elaborated below, I am satisfied that Mr Garlett ought to be acquitted of all counts, including count 1, because of mental impairment. It follows that in light of that finding, notwithstanding the admissions he has made, resolution of the question of whether the alleged circumstances of aggravation have been proven does not fall to be determined. 10 The State of Western Australia v Chokolich [2024] WASC 346 [51] (Quinlan CJ). 11 McCullock [95] - [99]. -- 18 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 19 Criminal damage 40 Counts 2, 4, and 7 each allege that Mr Garlett committed the offence of criminal damage to a vehicle, contrary to s 444 of the Code. The difference in each count is each count simply relates to damage caused to a separate vehicle. 41 To establish the offence of contravening s 444 of the Code, the prosecution must prove each of the following elements beyond reasonable doubt: 1. That the accused destroyed or damaged property. 'Property' is defined by s 1(1) of the Code. There is no dispute that a motor vehicle is capable of amounting to 'property' as defined. 2. The accused did so wilfully. Section 443 of the Code provides that a person will 'wilfully destroy or damage property' if they do an act, or omit to do an act, with the intention of destroying or damaging property, or knowing or believing that the act or omission is likely to result in the destruction or damage to the property. 3. That the accused acted unlawfully. Section 441 of the Code provides that damage to another person's property, done without that person's consent, is unlawful unless it is authorised, justified, or otherwise excused by law. 42 Mr Garlett admits in relation to counts 2, 4 and 7 that he wilfully and unlawfully caused damage to each of the motor vehicles the subject of those counts. On the basis of those admissions, I am satisfied beyond reasonable doubt of the elements that constitute each of those counts. Being armed in a manner likely to cause fear 43 To establish an offence against s 68 of the Code the prosecution must prove each of the following elements beyond reasonable doubt: 1. The accused was armed. 'Armed' means to bear arms. To bear something is to carry or equip. To be armed a person merely needs to have a weapon sufficiently close enough to be made available should the person choose to use it. -- 19 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 20 2. That the object with which the accused was armed was an offensive instrument. An object that ordinarily has a lawful or innocent purpose may nonetheless constitute an 'offensive instrument' if it is carried or used with the intention that it be readily available for use to attack and inflict injury should the occasion arise.12 3. The accused did so in circumstances likely to cause fear to any person. 'Likely' means probable and mere possibility or chance is insufficient. 44 Mr Garlett admits he was armed with a knife and in circumstances where it would be capable of constituting an offensive instrument. 45 Although the indictment specifies the offensive instrument as a 'knife', the facts admitted by Mr Garlett show that the item he was armed with was a meat cleaver. I am satisfied that a meat cleaver, particularly in the circumstances in which Mr Garlett admits he was holding it, is capable of constituting an 'offensive instrument'. 46 Further, Mr Garlett admits that he was armed with the meat cleaver in circumstances likely to cause fear. Those circumstances are outlined above at [23(21)] - [23(25)]. I am satisfied that the way he was armed with the meat cleaver was such that, viewed objectively, it was likely to cause fear to another or others. 47 I am satisfied beyond reasonable doubt of each of the elements constituting this count have been established. Assault occasioning bodily harm 48 Counts 5 and 6 allege Mr Garlett unlawfully assaulted another and thereby caused bodily harm contrary to s 317 of the Code. The only difference in relation to each count is that each count relates to bodily harm caused to a separate person. 49 To establish the offence of contravening s 317 of the Code, the prosecution must prove each of the following elements beyond reasonable doubt: 12 Van Den Berg v The Queen [1984] WAR 162, 165 (Burt CJ), 69 (Smith J), 172 - 173 (Pidgeon J); The State of Western Australia v Majok [2005] WASC 13 [39], [43] - [44]. -- 20 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 21 1. The accused assaulted the named person. The term 'assault' is defined by s 222 of the Code and includes, amongst other things, the striking, touching, moving or application of force of any kind to the person of another, either directly or indirectly, without that person's consent. 2. The named person suffered bodily harm. 'Bodily harm' is defined in s 1(1) of the Code as any bodily injury that interferes with health or comfort. To satisfy this element, the prosecution must prove both injury and pain and/or discomfort.13 3. The bodily harm was caused by the accused's assault. 4. The assault was unlawful in that it was not authorised, justified or excused by law. The accused bears no onus to prove there was a lawful justification. 50 In relation to count 5, the prosecution alleges that the bodily harm was caused to the named person when Mr Garlett struck him multiple times to the face. It is an admitted fact that, as a result, the named person immediately experienced pain and could taste blood in his mouth. I infer from this that an injury was caused to the named person's mouth. I am satisfied that the combination of injury to his mouth and the resulting pain is capable of constituting bodily harm. 51 Similarly, in relation to count 6, the prosecution alleges that the bodily harm was caused to the named person when Mr Garlett struck him twice to the cheek. It is accepted that these blows caused him immediate pain. Although the precise nature of the injury has not been identified, Mr Garlett admits that the named person sustained an injury amounting to bodily harm. In light of that admission, and despite the absence of a clearly identified injury, I am satisfied that named person suffered a bodily injury capable of constituting bodily harm. 52 Mr Garlett admits that there was no lawful basis for him to assault each of the individuals named in counts 5 and 6 in the circumstances in which those incidents occurred. The relevant circumstances are set out above at [23(23)] - [23(25)] and [23(30)] - [23(32)] respectively. Having regard to those circumstances, I am satisfied that there was no authorisation, justification, or excuse that would render either assault lawful and, accordingly, each was unlawful. 13 Pezzano v The State of Western Australia [2020] WASCA 181. -- 21 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 22 53 I am satisfied beyond reasonable doubt of the elements that constitute each of these two counts. Grievous bodily harm 54 Count 8 alleges Mr Garlett unlawfully caused grievous bodily harm to named person contrary to s 297 of the Code. To establish this offence, the prosecution must prove each of the following elements beyond reasonable doubt: 1. The named person suffered grievous bodily harm. An injury will amount to a 'grievous bodily harm' if it is a bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health. In this context, 'likely' means a substantial, that is, a real and not remote, chance that, if left untreated, the injury would cause permanent injury to health.14 2. That the accused caused the grievous bodily harm. The issue of causation is to be determined by applying common sense to the facts as found, bearing in mind that it involves attributing legal responsibility in a criminal context.15 3. Thae accused caused the grievous bodily harm unlawfully. For the purposes of s 297, the word 'unlawful' means prohibited by law or contrary to law and not excused.16 55 Mr Garlett admits that he unlawfully inflicted an injury amounting to grievous bodily harm on the named person. The circumstances in which that injury was caused are set out above at [23(40)] - [23(44)] and the injuries sustained by the named person, together with the treatment required, are detailed at [23(47)] - [23(49)]. Independently of those admissions, based on the circumstances in which the assault occurred, I am satisfied that there was no lawful basis for the infliction of that harm. I am also satisfied that, in the absence of medical treatment, the injuries were of such a nature as to be likely to endanger life and therefore constitute grievous bodily harm. 56 I am satisfied beyond reasonable doubt of each of the elements constituting this count. 14 Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10; Li v The State of Western Australia [2025] WASCA 75. 15 Campbell v The Queen [1981] WAR 286, 290. 16 Houghton v The Queen [No 2] [2004] WASCA 20 [121]. -- 22 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 23 57 Having concluded that the elements have been established in respect of each of the eight counts with which Mr Garlett is charged, I must now determine whether he should be relieved of criminal responsibility for any of those counts by operation of s 27 of the Code. Mental impairment 58 Section 27 of the Code provides: (1) A person is not criminally responsible for an act or omission on account of mental impairment if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. (2) A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist. 59 Section 26 of the Code provides that every person is presumed to be of sound mind until the contrary is proved. Mr Garlett bears the onus of proving, on the balance of probabilities, that he is not criminally responsible pursuant to s 27.17 60 Section 1(1) of the Code defines 'mental impairment' as including 'mental illness'. 'Mental illness' is defined as meaning: [a]n underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli. 61 What constitutes an 'infirmity of the mind' and the meaning of 'mental illness' more broadly was considered in The State of Western Australia v Herbert18 which, for the purposes of these reasons, I adopt: 47 An 'infirmity of the mind' is a weakness of the mind. The Shorter Oxford Dictionary defines 'pathological' to mean pertaining to or dealing with pathology. In turn, it defines 'pathology' to mean either the science or study of disease; that department of medical science, or of physiology, 17 R v Porter [1933] HCA 1; (1933) 55 CLR 182 (Porter). 18 The State of Western Australia v Herbert [2017] WASC 101 [47] - [51]. -- 23 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 24 which treats of the causes and nature of diseases, or abnormal bodily affections or conditions. Thus, an underlying pathological infirmity of the mind is an underlying infirmity of the mind which is related to disease or an abnormal bodily condition. 48 The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. The then Chief Justice of the Supreme Court of South Australia said: (1) 'disease of the mind' is synonymous with 'mental illness'; (2) a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind; (3) major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties; (4) disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness'; and (5) in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'. 49 In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, the High Court generally approved of King CJ's comments even in the context of the then Criminal Code provisions. 50 When Falconer was decided, the Code s 27 was differently worded. Section 27 was amended and the definition of mental impairment was inserted after Falconer was delivered. The subsequent amendments to the Code are consistent with King CJ's statement of principles in Radford, although the Code definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ. Nevertheless, -- 24 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 25 acute intoxication with alcohol and/or drugs is not a 'mental impairment'. 51 What is a mental illness is a question of law for the judge. Whether or not the facts disclose a state of mental illness is a question for the decider of fact. Psychiatric expert evidence 62 To discharge his evidentiary onus, Mr Garlett was examined and assessed by Dr Victoria Pascu who prepared reports dated 24 November 202319 and 25 March 2026.20 Mr Garlett also agreed to an examination by Dr Adam Brett, who was engaged by the State to provide an opinion as to Mr Garlett's capacity, as set out in his report dated 23 December 2025.21 Both psychiatrists gave evidence at trial, supplementing their respective reports. 63 In forming their respective assessments, both doctors interviewed Mr Garlett. Mr Garlett elected not to give evidence at trial and, accordingly, the statements he made to the examining doctors were not confirmed on oath. In some instances, the doctors also obtained collateral information from individuals closely associated with Mr Garlett or previously involved in his treatment. Necessarily, in reaching their opinions, each doctor relied to some extent on statements that might otherwise be characterised as hearsay. 64 The way hearsay statements by an accused to a medical practitioner may be received and used was usefully summarised by Hall J (as his Honour then was) in The State of Western Australia v Quartermaine.22 I adopt his Honour's analysis for the present matter. 65 For the most part, it appears the reliance placed upon what Mr Garlett said during his examinations by both Dr Pascu and Dr Brett was directed to the fact that the statements were made, rather than to their truth. In relation to the majority of the history he provided, this appears to have been corroborated by the extensive medical records, themselves admissible pursuant to s 79C of the EA, and tendered as part of the prosecution brief.23 19 Exhibit 7.1. 20 Exhibit 7.2. 21 Exhibit 5. 22 The State of Western Australia v Quartermaine [2020] WASC 458 [148] - [159]. 23 Exhibit 6. -- 25 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 26 66 However, to the extent that the doctors relied on statements made by Mr Garlett that were not confirmed on oath and were therefore strictly hearsay, no objection was taken to those statements being received as evidence of their truth.24 On that basis, the statements are admissible and may operate as a 'medium of proof' with the question of hearsay going to weight rather than admissibility.25 67 The opinions of Dr Pascu and Dr Brett were largely aligned, differing only on the issue of capacity. Even in that regard, and for the reasons discussed in greater detail below, the extent of their disagreement was largely immaterial. Did Mr Garlett have a mental impairment? 68 Both doctors diagnosed Mr Garlett with chronic, treatment-resistant paranoid schizophrenia, a condition classified by psychiatrists as a 'major mental illness'.26 69 The condition first emerged around 2017 - 2018, following the death of his grandfather, after which his mental health began to decline. Stress, including the stress from grief, is recognised as a factor that can trigger or worsen psychotic symptoms.27 70 Prior to the onset of his illness, Mr Garlett was able to participate normally in school, employment, and social activities. After the condition developed, his behaviour altered, with reduced motivation, increased depressive features, and a diminished capacity for initiative. This presentation is consistent with the functional impairments commonly associated with the 'negative symptoms' of schizophrenia.28 71 Other negative symptoms may include blunted affect and reduced facial expression, both of which were visibly present in Mr Garlett, as well as impaired logical thinking,29 although there was less evidence of the latter.30 72 Following the onset of his condition in 2018, Mr Garlett attended the Bentley Community Mental Health Clinic regularly from 2019 onwards, except for the period between 2021 and 2022 when his 24 ts 26. 25 Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [76]; Lange v The State of Western Australia [2021] WASCA 165 [145] - [147]. 26 ts 30. 27 ts 35, ts 58. 28 ts 61. 29 ts 49. 30 ts 60. -- 26 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 27 compliance with treatment became more problematic. Apart from that interval, he was generally compliant with treatment, receiving care in the community through a combination of oral (olanzapine) and injectable (paliperidone) antipsychotic medications administered on a four‑weekly basis.31 73 Despite his compliance with treatment, Mr Garlett's condition remained treatment-resistant. His medication served only to suppress, rather than eliminate, his symptoms,32 and he continued to experience residual symptoms even while medicated. These symptoms tended to worsen toward the end of each treatment cycle, during which he experienced 'breakthrough' symptoms.33 74 Medical records indicate that Mr Garlett received a depot injection of 150 mg of paliperidone on 17 April 2023.34 The offending the subject of counts 1 - 5 occurred on 20 April 2023. At that time, Mr Garlett was under the care of the Bentley Community Mental Health Clinic. In relation to the offending the subject of counts 6 - 8, which occurred on 25 May 2024, his most recent documented depot injection prior to those events was administered on 30 April 2024.35 At that time he was under the care of the Armadale Community Mental Health team. 75 In addition to the negative symptoms outlined at [70] and [71], individuals with schizophrenia may also experience 'positive symptoms', including hallucinations, which are false perceptions of stimuli that are not present,36 and delusions, being fixed false beliefs.37 When both are present, hallucinations may reinforce delusions, intensifying their severity and increasing the likelihood that the individual will act on those distorted beliefs.38 76 Mr Garlett has a documented history of exhibiting both hallucinations and delusions. The most recent recorded instance of delusional thinking prior to the offending on 20 April 2023 occurred on 2 November 2022, when he presented to the Bentley Community 31 Exhibit 5, page 7. 32 ts 36. 33 Exhibit 5, page 7. 34 Exhibit 5, page 4. 35 Exhibit 5, page 6; ts 36. 36 ts 46. 37 ts 49. 38 ts 44. -- 27 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 28 Mental Health Clinic triage reporting paranoid beliefs that individuals in cars were following him.39 April 2023 offending 77 Mr Garlett explained that, in the lead‑up to the offending on 20 April 2023, his mental health had been deteriorating, and he was experiencing auditory hallucinations. Unlike in 2018, following the death of his grandfather, and in January 2024, following the death of his father, there was no clear precipitating event for the onset of his psychosis on this occasion. Nevertheless, he described delusional beliefs involving a stone and a USB both of which were said to hold particular spiritual significance. He also reported paranoid beliefs that he was being followed, including perceptions of people tailgating him, together with concerns for the safety of his family.40 78 Independent evidence was available to Dr Brett and Dr Pascu capable of corroborating Mr Garlett's account of the symptoms he was experiencing. Although he did not participate in a formal electronic record of interview, audiovisual evidence was available in the form of body-worn camera footage capturing his interaction with the arresting officers.41 79 Having reviewed that footage, it depicts Mr Garlett appearing to respond to non‑existent stimuli, suggestive of hallucinations, and demonstrating delusional beliefs regarding the attending officers' purported level of knowledge of, and familiarity with, him. In fact, neither officer had any prior involvement with Mr Garlett. The erratic nature of his interactions with the officers is also detailed in the statements provided by each officer, which were tendered as part of the prosecution brief.42 80 Following Mr Garlett's arrest, he was taken into custody allowing for further observations as to his behaviour. On 22 April 2023 he was seen to be smiling inappropriately and he reported experiencing auditory command type hallucinations. He was provided with a depot injection on 15 May 2023. 81 He remained in custody until his release on bail on 19 December 2023. During this period, he continued to exhibit ongoing psychotic 39 Exhibit 6, page 8. 40 Exhibit 5, pars 4 - 11; Exhibit 7.1, pars 10 - 16. 41 Exhibit 4. 42 Exhibit 6, pages 123 - 143. -- 28 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 29 symptoms and, notwithstanding the administration of regular depot injections, continued to experience chronic residual symptoms which persisted even after release to bail. May 2024 offending 82 Following his release from custody, Mr Garlett's father died suddenly of heart failure in January 2024. As noted, stress is a well-recognised factor in precipitating the onset or exacerbation of psychotic symptoms in schizophrenia, and this event is identified as a trigger for the subsequent worsening of his pre-existing condition. 83 He was reviewed on 23 February 2024 at Armadale Community Mental Health, where he was observed to be experiencing persecutory delusions. At that time, the frequency of his depot injections had been increased to every three weeks, with the most recent injection prior to the offending administered on 30 April 2024. As can be seen at the time of the offending on 25 May 2024, he was overdue for a further depot injection. 84 Mr Garlett's account of this offending indicates that he was experiencing visual hallucinations, including seeing spirits, as well as persecutory, command-type auditory hallucinations. He also described operating under persecutory delusions that he perceived as posing a threat to his family.43 85 There was less independent corroborative evidence of Mr Garlett's behaviour at the relevant time, however, two of the complainants affected by his offending described him as appearing to be under the influence of alcohol and/or drugs, given the erratic nature of his conduct.44 86 Following his arrest and being taken into custody he was reported to have made threats to kill himself. He was also observed to be behaving extremely erratically and in a way that suggested he was extremely unwell.45 On 12 June 2024 he reported he was continuing to hear voices. 87 Mr Garlett has continued to remain in custody. During his incarceration, his mental health has reportedly fluctuated, with ongoing episodes of psychosis despite his continued compliance with treatment. 43 Exhibit 7.2, pars 10 - 16. 44 Exhibit 6, pages 177 - 181, 198 - 202. 45 Exhibit 5, par 47; ts 37. -- 29 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 30 Analysis and findings 88 I am satisfied that Mr Garlett has suffered from schizophrenia since 2018 and continues to do so. I am further satisfied that his condition constitutes a 'major mental illness' and amounts to a 'disease of the mind' as discussed above at [61] and therefore meets the definition of a mental impairment for the purposes of s 1(1) of the Code. 89 Since commencing treatment in 2019, the condition has proven to be resistant. Over time, it has progressed to a stage where it may appropriately be characterised as chronic paranoid schizophrenia. 90 Despite his compliance with treatment, and notwithstanding that he had received a depot injection only three days before the April offending, Mr Garlett continued to experience persistent breakthrough symptoms, including auditory and visual hallucinations and related delusions that were mutually reinforcing. 91 In relation to the April offending, there is evidence that Mr Garlett continued to experience symptoms as at November 2022, together with contemporaneous evidence in the form of body-worn camera footage indicating that he remained symptomatic at the time of the offending. This is further supported by evidence of his behaviour immediately following his arrest and during his remand in custody, which suggests an ongoing symptomatic state. 92 On the basis of the above, and consistently with the opinions expressed by Dr Brett and Dr Pascu, I am satisfied that, at the time of committing the offences the subject of counts 1 - 5, Mr Garlett was more likely than not operating in a psychotic state arising from his pre-existing mental illness of chronic paranoid schizophrenia. 93 In relation to counts 6 - 8, I am satisfied that the death of Mr Garlett's father precipitated an exacerbation of his pre-existing schizophrenia, leading to a progressively deteriorating mental state and culminating in the offending on 25 May 2024. The behaviour described by witnesses as 'intoxicated' or 'drug affected' is consistent with the erratic presentation of a person experiencing psychosis. This conclusion is further supported by the markedly psychotic behaviours observed following his arrest and during his custody. 94 Similarly, and again in accordance with the opinions of Dr Brett and Dr Pascu, I am satisfied that it is more likely than not that -- 30 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 31 Mr Garlett was in a psychotic state at the time of committing the offences the subject of counts 6 - 8, brought about by a deterioration in his schizophrenic illness. 95 Accordingly, I am satisfied that at the time of committing each of the offences with which he has been charged, Mr Garlett was operating under a mental impairment. Was Mr Garlett's disordered mind caused by voluntary intoxication? 96 Where a person's mind is disordered due to intentional intoxication or stupefaction, s 28(2) of the Code operates to preclude the application of s 27. Section 28(2) will not apply where an accused can prove that at the time of doing the act or making the omission:46 (a) the accused suffered from a 'mental impairment', as defined in s 1(1), independently of and without regard to the accused's intoxication or stupefaction; and (b) at the time of doing the relevant act or making the relevant omission, the accused was in such a state of 'mental impairment', as defined in s 1(1), as to deprive him or her of at least one of the capacities referred to in s 27(1), independently of and without regard to the accused's intoxication or stupefaction. 97 Mr Garlett has an extensive history of illicit substance use. He reports first using substances at the age of 23 (in 2016). At the time of his grandfather's death in 2017 when the condition first manifested, he was using cannabis regularly, at times up to 10 times per day.47 98 Further, Mr Garlett demonstrated an understanding of how alcohol and illicit substances impacted his condition, noting that 'they made the psychosis worse'. This response indicates that he recognised the role his substance use played in contributing to his illness.48 99 Notwithstanding that insight, between 2021 and 2022, he began using methylamphetamine. This period of use coincided with his disengagement from the community mental health services responsible for overseeing his treatment. Both Dr Brett and Dr Pascu expressed the 46 Stefanski v The State of Western Australia [2022] WASCA 5 (Stefanski). 47 Exhibit 5, par 67. 48 Exhibit 7.1, par 28. -- 31 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 32 opinion his illicit substance use during this period was very likely to have contributed to the decline in his mental health at that time.49 100 In the first interview conducted with Dr Pascu, Mr Garlett stated that he was unwell and could not recall using cannabis or any other illicit substances in the lead-up to, or on the day of, the alleged offences.50 Subsequently, in the course of preparing her second report, Mr Garlett denied any use of alcohol or illicit substances prior to and including the day of the 'alleged offences'.51 In this context, the reference to the 'alleged offences' appears to relate to the offending said to have occurred in May 2024. 101 During his interview with Dr Brett, Mr Garlett's denial appeared to go further, in that he denied using any illicit substances at the time of the offending in both April 2023 and May 2024,52 and claiming he had not used illicit substances since October 2022.53 102 However, that claim appears to be inconsistent with an entry in Dr Brett's report noting that clinical records from Mr Garlett's attendance at the Bentley Community Mental Health Clinic on 2 November 2022 indicate that, at that time, he admitted to using marijuana and methylamphetamines 'heavily'.54 103 Dr Brett also referred in his report to an entry in the prison notes dated 14 August 2023,55 though this in fact appears to be a reference to an entry made on 4 August 2023, which reads:56 He denies any current illicit substance use. States he has not used since April 20th 2023. Reports recreational use in the community. 104 When questioned about this entry, Dr Brett confirmed it had been forwarded to the Office of the Director of Public Prosecutions. He further stated that there did not appear to be any additional documentation capable of corroborating the reliability of what Mr Garlett was reported to have admitted on 4 August and, to his knowledge, no drug testing was conducted on or around 20 April 2023 49 Exhibit 7.1, par 27. 50 Exhibit 7.1, par 29. 51 Exhibit 7.2, par 33. 52 Exhibit 5, pars 4 and 69. 53 Exhibit 5, par 53. 54 Exhibit 5, par 57. 55 Exhibit 5, par 25. 56 Exhibit 6, page 352. -- 32 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 33 to determine whether Mr Garlett was affected by drugs. That understanding is correct, no such testing was carried out. 105 Notably, on 30 May 2024 during a search of the house where Mr Garlett was living, smoking implements, namely a 'bong' and a 'meth pipe', were found in his bedroom and a quantity of cannabis was also located elsewhere in the premises.57 Despite these indicia, Mr Garlett maintained he was not using illicit substances at the relevant time and asserted that the bong was used for smoking tobacco.58 106 Notwithstanding that this evidence may suggest that Mr Garlett was using illicit substances at or around the time of his offending, and that such use could potentially have contributed to a disordered state of mind, the State's position is there is no evidence capable of positively establishing that Mr Garlett was intentionally under the influence of intoxicating substances at the relevant time. Nor does the State appear to contend that any alleged admissions by Mr Garlett to that effect are sufficiently reliable to support a finding that he was so intoxicated. 107 Accordingly, the State's position, as outlined, is that it does not positively contend that I should be satisfied, on the balance of probabilities, that s 28(2) of the Code operates to preclude any excuse from criminal responsibility under s 27.59 108 The evidential burden of proof rests with the accused, first, to displace the presumption of sanity under s 26 and, secondly, to establish that s 28(2) does not apply. That evidential burden of proof is that of the civil standard of 'balance of probabilities'. 57 Exhibit 6, page 303. 58 Exhibit 5, par 73. 59 ts 26. -- 33 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 34 109 However, as Heydon J observed (in dissent) in Strong v Woolworths,60 the expression 'evidential burden' can be a source of confusion, as it may be used in at least three distinct senses: a persuasive burden, a 'provisional' or 'tactical' burden, and a 'prima facie inference' burden arising where, in the absence of evidence to the contrary, the trier of fact would err in failing to find in favour of the party bearing it. This latter category may, in some circumstances, risk being perceived as a reversal of the evidentiary onus. 110 In Taylor v The Queen61 Smithers J was of the opinion that a jury should not reject or ignore unchallenged medical opinions that are accepted as being honest and competent unless: … the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed … 111 Subject to the overarching caution outlined in Hone, the reasoning in Taylor indicates an accused may still fail to discharge their evidential burden even where the prosecution adduces no rebuttal evidence. This tends to suggest that an accused's evidential burden is something more than the kind Heydon J characterised as the 'prima facie inference' burden and certainly more than the mere 'persuasive burden' referred to in Strong. 112 The statements by Dixon J in Porter that 'it is necessary for the accused person to make out positively, upon a balance of probability', that it is sufficient if the matter is made to appear 'more probable on the whole' and that the burden is one of 'establishing to [the trier of fact's] reasonable satisfaction, not to the exclusion of all doubt, but on the balance of probability', suggest a standard of the kind later described by Dixon J in Briginshaw v Briginshaw.62 That standard was one described as requiring 'actual persuasion' of the occurrence or existence of the matter in question, rather than a conclusion based on the 'mere preponderance of evidence'. This reflects what is commonly described as the first aspect of the 'Briginshaw standard'. 60 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 [46] - [64] (Strong). 61 Taylor v The Queen (1978) 45 FLR 343, 352 (Taylor). 62 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw). -- 34 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 35 113 Dixon J went on to observe that the seriousness of the allegation made and the gravity of the consequence flowing from a particular finding were relevant considerations when determining whether the evidential burden had been discharged. This forms the second part of the Briginshaw standard. 114 However, in Briginshaw the seriousness of the allegation and the gravity of the consequence to which Dixon J referred arose in the context of establishing allegations of moral or criminal wrongdoing. When Dixon J's explanation in Porter for the justification of the insanity defence at common law is taken into account in assessing the seriousness and gravity of the allegation, the operation of the second aspect of the Briginshaw standard becomes less cautionary than it would otherwise be when applied to allegations of moral or criminal wrongdoing. 115 This suggests that the evidential burden borne by the accused is more appropriately characterised as the 'provisional' or 'tactical' kind described by Heydon J, in that it may impose a tactical burden on the prosecution to adduce evidence in rebuttal. However, subject to the caution expressed in Hone, a failure by the prosecution to do so does not compel acceptance of the accused's evidence or a finding that the evidential onus has been discharged. 116 It remains incumbent upon the accused to positively persuade the trier of fact of the occurrence or existence of the matter in question. In this context, having regard to the interpretation of the interaction between s 27 and s 28(2) of the Code in Stefanski, the relevant 'occurrence or existence' is that s 28(2) does not apply. Accordingly, an accused occupies the somewhat unusual position of bearing an evidential burden to establish the absence of a particular state of affairs, namely, that they were not intoxicated at the relevant time or, if intoxicated, that such intoxication did not contribute to their incapacity, irrespective of whether the prosecution advances a positive contrary assertion. 117 In the present matter, at first glance, Mr Garlett's alleged admissions to others regarding illicit substance use, particularly what he is recorded as having said on 4 August 2023 in the prison notes concerning use on the day of the offending on 20 April 2023, together with the presence of drug-related indicia at his home on 30 May 2024, can appear somewhat compelling. -- 35 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 36 118 In making that assessment, it is necessary to take into account that no analysis appears to have been undertaken of the residue within the smoking component of the implement to contradict Mr Garlett's assertion that it was used for tobacco. Accordingly, the strength of any finding depends entirely upon the reliability and acceptance of Mr Garlett's alleged admissions, in circumstances where there is no contemporaneous material capable of corroborating those admissions. Given the State has elected not to test or otherwise establish the reliability of those admissions, caution should be exercised before accepting such untested statements from a person who was, at the relevant time, experiencing psychosis. 119 Further, although Dr Brett was neither asked for, nor expressed, an opinion on the issue, Dr Pascu considered that, even if Mr Garlett had used illicit substances, his disordered mental state and the consequent offending were not the result of voluntarily induced intoxication but were instead attributable to his pre‑existing mental illness. Her opinion was that to the extent illicit substances may have been present in his system, they would have operated only to exacerbate his psychotic symptoms, with the underlying psychosis arising independently of, and not by reason of, any voluntary intoxication. There is no reason for me not to accept that opinion. 120 On the basis of the analysis set out above, I am satisfied that Mr Garlett has discharged his burden of positively establishing that, in the present matter, s 28(2) of the Code does not operate to preclude the application of s 27. Did Mr Garlett's mental impairment deprive him of his capacity? 121 To be relieved of the criminal responsibility for his offending, Mr Garlett must prove that his mental impairment deprived him of any one of the following three capacities: (a) to understand what he was doing; (b) to control his actions; or (c) to know that he ought not to do the act or make the omission. 122 Both Dr Brett and Dr Pascu expressed the opinion that Mr Garlett's mental impairment did not deprive him of the capacity to understand what he was doing. That issue therefore requires no further consideration. -- 36 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 37 123 The two doctors also agreed that, by reason of his mental impairment, Mr Garlett was deprived of the capacity to know that he ought not to do the act or make the omission. This forms the principal basis upon which it is contended that Mr Garlett should be excused from criminal responsibility for his offending. 124 The only point of divergence between Dr Brett and Dr Pascu concerned whether Mr Garlett's mental impairment deprived him of the capacity to control his actions. Dr Brett considered that Mr Garlett's capacity was impaired, but not deprived, whereas Dr Pascu was of the view that his capacity was in fact deprived. Capacity to control actions 125 A person lacks the capacity to control their actions if, due to a mental impairment, they are unable to make a conscious decision to perform the relevant act or to exercise a genuine power of choice in acting. However, a person is not to be regarded as lacking such capacity merely because their ability to resist an impulse or emotion is significantly impaired.63 126 The expression 'capacity to control' in s 27(1) of the Code directs attention to a person's ability either to choose to act or to refrain from acting. A person lacks that capacity if they are unable to make a conscious, voluntary decision to act, or unable to hold back or restrain themselves from carrying out an intended act. 127 Where a mental impairment deprives a person of the ability to refrain from acting, so that they no longer have a real power of choice, they are, for that reason, deprived of the capacity to control their actions within the meaning of s 27(1). This is so even if the act appears deliberate or is carried out following a conscious decision.64 128 In determining whether a person's capacity to control their actions was affected, it will often be necessary to consider the extent to which any delusions or hallucinations influenced their conduct or undermined their ability to choose whether to act.65 63 The State of Western Australia v Marotta [2018] WASC 329 [39] - [45] (Marotta). 64 The State of Western Australia v Taylor [2021] WASC 470 [50] - [53]. 65 Marotta [39] - [45]. -- 37 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 38 Capacity to know that one ought not to do the act 129 A person will lack the requisite understanding of the wrongness or nature of their act if, by reason of a disease, disorder, or defect of mind, they were at the relevant time incapable of rationally reasoning with a moderate degree of sense and composure about the act, such that they could not appreciate its nature or that it was wrong according to the ordinary standards of reasonable people.66 130 No material distinction exists between the common law test articulated in Stapleton and s 27 of the Code. The question of whether an act is right or wrong is to be made by reference to an objective standard. The relevant inquiry is whether the accused was deprived of the capacity to reason as to what was, by that objective standard, right or wrong.67 131 In making the assessment, I must be cognisant that conduct which might ordinarily indicate understanding in a person of sound mind, such as awareness that an act was legally punishable, may not do so where the accused, by reason of mental impairment, lacked the capacity for rational reasoning.68 Analysis and findings 132 To the extent that there was a divergence between the opinions of Dr Brett and Dr Pascu regarding Mr Garlett's capacity to control his actions, both acknowledged that this was an area inherently 'controversial'69 and one where a difference in their respective opinions was not unusual.70 133 Broadly, the difference in opinion may be characterised as a divergence in subjective assessment between what constitutes compulsion and what amounts to inducement. Dr Pascu was of the opinion that auditory command hallucinations directing a person to act amounts to a deprivation of the capacity to control one's actions.71 134 In contrast, Dr Brett considered that such hallucinations reflect a delusional influence that may lead a person to act in a manner they otherwise would not, but do not amount to a deprivation of the capacity 66 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367 (Stapleton). 67 Evans v The State of Western Australia [2010] WASCA 34 [30] - [31] (Evans). 68 Evans [33] - [34]; Hone [2] - [13]. 69 ts 37. 70 ts 63. 71 ts 63. -- 38 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 39 for control.72 In this respect, Dr Brett characterised the distinction as one between an irresistible impulse, denoting a lack of capacity to control, and an impulse not resisted, being conduct undertaken in response to an inducement that might otherwise have been resisted.73 135 The divergence in opinion reflects an underlying tension between the concepts of 'deprivation', being the absence of voluntariness, and 'restraint', being the capacity to exercise choice, when applied to the notion of performing a willed act, as those concepts were identified by Derrick J in The State of Western Australia v Taylor74 and how they relate to this capacity. However, given the consensus between Dr Brett and Dr Pascu regarding Mr Garlett's incapacity to know that he ought not to do the act, it is a tension that I ultimately do not need to resolve. 136 Notwithstanding that, at various points during the offending, Mr Garlett appeared to act in a goal-directed and rational manner, for example, in the way he conducted himself when committing count 1 as described at [23(4)] - [23(7)], such outward behaviour was not regarded as inconsistent with him being in a psychotic state and operating under a delusional framework that impaired rational thought.75 What is of primary significance is the presence of an irrational mind, rather than whether a logical connection can be discerned between the purported delusional framework and the person's behaviour.76 137 Further, although there may be no immediately apparent logical connection between the delusional framework under which Mr Garlett reported he was operating and his actions and behaviour, reasoning of that kind risks adopting the improper approach discussed above at [131]. 138 Nevertheless, broadly speaking, Mr Garlett's delusional beliefs as amplified by his auditory hallucinations were that he believed his family was at significant risk, people were following him and wanting to do him harm and he was experiencing command hallucinations telling him to attack.77 The significance of that delusional system lies not in the possibility that it may have furnished Mr Garlett, in his own 72 ts 37. 73 ts 46. 74 The State of Western Australia v Taylor [51]. 75 ts 39, ts 62. 76 ts 47, ts 63. 77 ts 38, ts 60. -- 39 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 40 mind, with a moral, albeit deluded, justification for his actions, but rather in the fact that, in that context, his psychotic and disordered state rendered him incapable of reasoning about his conduct with a moderate degree of sense and composure.78 139 In circumstances where there is concurrence in the opinions that, by reason of Mr Garlett's mental impairment, he was experiencing paranoid delusions and command auditory hallucinations which impaired his ability to reason with a moderate degree of sense and composure as to what was right or wrong according to ordinary standards, it would be inappropriate to disregard that evidence capriciously. No proper basis has been identified for doing so. 140 Accordingly, I accept the opinions of Dr Brett and Dr Pascu and am satisfied, on the balance of probabilities, that at all relevant times Mr Garlett's mental impairment deprived him of the capacity to know that he ought not to do the act or make the omission that would otherwise render him criminally responsible. Verdicts and consequential orders 141 In respect of each of the eight counts alleged against him, I find Cyril Benedict Garlett not guilty by reason of mental impairment and enter verdicts of acquittal pursuant to s 146 of the CPA in relation to each count. 142 Having entered verdicts of acquittal pursuant to s 146, it is now necessary, by operation of s 149(1) of the CPA and s 44(1) of the CLMIA, to make an order under pt 5 of the CLMIA. I will do so after receiving further submissions from the parties. 78 ts 38, ts 39. -- 40 of 41 -- [2026] WADC 45 ASTILL DCJ [2026] WADC 45 [JM] Page 41 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. EO Associate to Judge Astill 8 JUNE 2026 -- 41 of 41 --