THE STATE OF WESTERN AUSTRALIA -v- FAZZINO [2025] WADC 104

[2025] WADC 104 [2025] WADC 105 [JM] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- FAZZINO [2025] WADC 104 CORAM : LEVY DCJ HEARD : 11 DECEMBER 2025 DELIVERED : 11 DECEMBER 2025 PUBLISHED : 21 MAY 2026 FILE NO/S : IND 554 of 2023 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND JODI PAULINE FAZZINO Catchwords: Criminal law - 'Special proceeding' pursuant to the Criminal Law (Mental Impairment) Act 2023 (WA) - Circumstantial evidence - Community Supervision Order Legislation: Criminal Code (WA), s 392 Criminal Law (Mental Impairment) Act 2023 (WA), s 7, s 8, s 37, s 41, s 42, s 46, s 47, s 52, s 54, s 55 Criminal Procedure Act 2004 (WA), s 118, s 119, s 120 -- 1 of 18 -- [2025] WADC 104 [2025] WADC 105 [JM] Page 2 Result: Charge proven Community supervision order imposed Representation: Counsel: The State of Western Australia : Ms H M E Flynn Accused : Ms C Martelli Solicitors: The State of Western Australia : State Director of Public Prosecutions Accused : Legal Aid - Perth - Criminal Appeals Case(s) referred to in decision(s): Nil -- 2 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 3 LEVY DCJ: 1 Jodi Pauline Fazzino (the accused) was charged on indictment 554 of 2023 which alleged that on 16 July 2021 at Medina she stole from Abbey Lee Ford, with threats of violence, cigarettes, a spray cannister and food items and that she was armed with offensive weapons, namely a lighter and spray cannister (armed robbery). 2 On 7 December 2023, her Honour Chief Judge Wager found the accused unfit to stand trial. Pursuant to s 37(3) of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act), a special proceeding was ordered to take place and listed for hearing on 11 December 2025 to determine whether the armed robbery was committed by the accused. 3 On 11 December 2025, the special proceeding proceeded before me. At the conclusion of the hearing, I was satisfied beyond reasonable doubt that the accused had committed an offence (not the offence originally charged), namely:1 [O]n 16 July 2021 at Medina, [the accused] stole from [Abbey] Lee Ford, with threats of violence cigarettes, … and that she was armed with offensive weapons, namely a lighter and spray canister. 4 Having found that the accused committed an offence of armed robbery, pursuant to s 46(1)(b) of the CLMI Act, I ordered that she be released on a community supervision order (CSO) to run for 12 months from that date. Pursuant to s 54 and s 55 of the CLMI Act, I also ordered that the accused be subject to conditions for the duration of the order, including that she: (a) be under the supervision and direction of Adult Community Corrections and comply with any lawful directions to her; (b) comply with all lawful directions and treatment recommendations given to her by her treating psychiatrist or a medical professional; (c) reside with her mother at an address in Geraldton, Western Australia and not change her address without the approval of the Chief Executive Officer of Adult Community Corrections; (d) attend for urinalysis if required and directed to provide a valid urine sample; and 1 ts 74. -- 3 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 4 (e) not go within 100 m of the Medina IGA situated at 14 Pace Road, Medina. 5 These are my reasons for finding the charge proven and making the orders. Special proceeding pursuant to the Criminal Law (Mental Impairment Act 2023 (WA) 6 The nature of a special proceeding is set out at s 41(2) of the CLMI Act. In deciding the charge the court may find that the accused: (a) is not guilty (other than as described in paragraph (b)); or (b) is not guilty on account of mental impairment under s 27 of the Criminal Code (WA); or (c) committed the offence charged or another offence which, on the charge, the accused might be found to have committed. 7 A court must be satisfied beyond reasonable that the accused committed an offence.2 8 A court must provide reasons for its decision (although the validity of a decision is not affected by a failure to do so).3 9 Although the court retains a broad discretion as to how the proceedings are to be conducted,4 a court conducting a special proceeding must, as far as is practicable, endeavour to conduct the matter as if it were an ordinary criminal proceeding.5 The court must confer with the parties as to the how the special proceeding is to be conducted.6 How the special proceeding was conducted 10 In this case, with the consent of the court, the parties agreed the manner in which the special proceeding was to be conducted. The manner adopted was designed to minimise any distress that the 2 CLMI Act s 41(3). 3 CLMI Act s 41(4). 4 CLMI Act s 42(1). 5 CLMI Act s 42(2). 6 CLMI Act s 42(3). -- 4 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 5 proceedings may have caused to the accused. The procedure proposed by the parties and adopted by the court was set out in the Memorandum of Conferral7 attached to these reasons as Annexure A. Essentially, the proceedings were conducted as follows: 1. Whilst the accused did not make formal admissions, given her lack of capacity, no dispute or issue was taken by the accused in relation to the evidence relied upon by the State. 2. The State read a statement of material facts into the record. 3. The State tendered: (a) the prosecution brief of evidence, including the statements of the complainant Ms Ford and an eyewitness Tammy Lee Hegart;8 (b) a disc containing the CCTV footage of the incident;9 (c) body-worn camera footage worn by Officer Chase Graham Parker;10 and (d) a forensic exhibit matrix.11 4. No mental impairment defence was raised by the accused. 11 The facts alleged by the State, as read to the court, were as follows:12 At about 7.33 am on Friday, 16 July 2021, the accused entered the IGA Medina store located at 14 Pace Road in Medina. The accused entered several aisles within the store and selected stocked items, including a two-litre bottle of milk, a tin of Nesquik, lemons, confectionary items, a can of eucalyptus spray and a can of canola oil spray. At about 7.37 am the accused located a stepping stool in an aisle and sat on it whilst consuming some of the food items. Next to the stool the accused wrote on the ground, 'I want my unicorn back, Sprinkles'. The accused left the food items in the aisle, along with her personal notebook containing bail paperwork in her name, before she approached the front counter of the store at 7.40 am. Whilst at the front counter, the accused produced the canola oil spray can and a cigarette lighter. 7 Exhibit 1. 8 Exhibit 3. 9 Exhibit 4. 10 Exhibit 5. 11 Exhibit 6. 12 ts 53 - ts 54. -- 5 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 6 The accused said to an employee at the front counter, 'Give me all the smokes in the world, and I want them now'. The employee asked, 'Are you serious?' to which the accused said, 'I'm dead-set serious'. When asked if she was serious or if she was joking the accused said, 'I'm serious. I'm going to light this all on fire'. At about 7.41 am the accused then began spraying canola oil in the air and igniting it with the lighter four times, causing large bursts of flame. The employee then used a PA system to call for assistance, leading to her being joined by a further employee. The accused then screamed, 'Give me all the smokes now'. The accused jumped the front counter and again sprayed canola oil in the air and ignited it before she opened the cigarette cabinet and stole two packets of Rothmans cigarettes. The accused then jumped back over the counter and ran out the front of the store, being pursued by the second employee. As she was fleeing, the accused dropped a number of the stolen items. The incident was captured on CCTV footage and the accused's fingerprints were identified on some of the items located at the incident scene. On Thursday, 22 July 2021, the accused was arrested at South Metro Community Alcohol and Drug Service wearing an inflatable pink unicorn. When police officers explained they were investigating the offence, the accused said on body-worn camera, 'I only smoke Nesquik in front of Sprinkles'. As a result of her erratic behaviour the accused was conveyed to Royal Perth Hospital for a health assessment before she was charged with the present offence, and no electronic record of interview was conducted with the accused. Elements of the offence charged on the indictment 12 To be satisfied that the accused committed the offence, the State must prove each and every element of the offence charged beyond reasonable doubt. 13 There are four elements required to prove the charge of armed robbery. These are as follows. First element - the identity of the person 14 The State must prove that it was the accused, and not some other person that committed the acts constituting the offence. -- 6 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 7 15 On the evidence, I am satisfied beyond reasonable doubt that the person alleged to have carried out the acts constituting the offence was the accused, and not some other person.13 Second element - that the accused stole the property of another 16 The State, as pleaded, alleged that the accused stole cigarettes, a spray cannister and food items from Ms Ford. 17 Relevantly, a 'stealing' occurs when a person fraudulently takes something capable of being stolen; or fraudulently converts to his or her own use or to the use of any other person any property. The relevant act is fraudulent if done with an intent to permanently deprive the owner of the thing.14 18 The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act. 19 To prove the accused stole one or more of the items, the State must prove that the accused took the item with an intent to permanently deprive the owner of the property. 20 Whilst I was satisfied beyond reasonable doubt that the evidence demonstrated the accused stole each of the items, I was not satisfied that the charge, as pleaded on the indictment, was proven beyond reasonable doubt. 21 I will deal with this issue under the third element below. Third element - that when the accused stole something from another person (Ms Ford), she used threats of violence 22 The State must prove that immediately before, at the time of, or immediately after stealing the items particularised, the accused threatened to use violence to any person or property in order to obtain the thing stolen or prevent or overcome resistance to it being stolen. 13 During the hearing, I raised my concern that the evidence before the court and necessary to prove the element of identity may be insufficient to prove this element beyond reasonable doubt. The State subsequently, with the consent of the accused's counsel, tendered additional body-worn camera footage relating to the arrest of the accused (which was taken shortly after the incident). That evidence revealed that the accused was dressed in a pink unicorn costume. That piece of evidence, in combination with: (1) the CCTV footage; (2) her diary and bail papers found at the scene of the offence; and (3) the words she wrote on the floor of an aisle in the IGA, namely 'I want my unicorn back, Sprinkles' (Sprinkles being the name of her imaginary unicorn, and the person seen in the aisle is drinking from a can of Nesquik immediately before the offence), overwhelmingly proved the element of identity beyond reasonable doubt. 14 Code s 371(2)(a). -- 7 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 8 23 A 'threat,' or 'to threaten', is a statement or behaviour that expressly constitutes or may reasonably be regarded as constituting a threat to do something. 24 The term 'violence' is not defined under the Code. It bears its ordinary English meaning. In this context, to 'exercise or use physical force so as to inflict injury on a person'.15 An injury in this context means physical harm of some sort. 25 As originally pleaded, the State alleged that the accused stole from Ms Ford, with threats of violence, cigarettes, a spray cannister and food items and that she was armed with offensive weapons, namely a lighter and spray cannister. 26 The State alleged that the threats of violence were directed to Ms Ford who was working as an employee on the checkout counter of Medina IGA. The threats of violence were alleged to have occurred when the accused allegedly approached Ms Ford with a lighter and then ignited a canola oil can in the direction of Ms Ford. 27 The difficulty with the charge as originally pleaded was that, on the evidence, the stealing of the canola oil and lighter was complete before the accused used the items to steal the cigarettes. 28 After raising this issue with the State, the prosecution conceded that the evidence only disclosed the stealing of the cigarettes with threats of violence. 29 I was satisfied that this element, as reframed by the State and not opposed by the counsel for the accused, was proven beyond reasonable doubt. Fourth element - that the threatened use of violence was for the purpose of effecting the stealing 30 In other words, the State need to prove beyond reasonable doubt that the accused threatened the use of violence in order to obtain the property that was stolen. 31 No issue is taken by the accused in relation to this element. 32 The CCTV footage, in combination with Ms Ford's statement clearly proved this element. 15 Shorter Oxford English Dictionary. -- 8 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 9 The circumstance on the indictment that the accused was armed with offensive weapons 33 If the State proves the four elements of the charge beyond reasonable doubt, the offence of robbery is established. 34 The State pleads that the accused was armed with offensive weapons, namely a lighter and canola oil spray cannister (making the offence an armed robbery). This is not an element of the offence of robbery, but a circumstance of the offending which if proven makes the offence more serious. In the event that I am satisfied beyond reasonable doubt of the four elements of the charge but not satisfied beyond reasonable doubt that the accused was armed with an offensive weapon, then the offence of robbery (not armed robbery) will be established. 35 The State must prove beyond reasonable doubt that the accused: (a) carried the offensive weapon; (b) that the weapon could be used to inflict bodily injury; and (c) that the offensive weapon was readily available for use to inflict bodily injury. 36 The word 'weapon' is defined in the Code. The Oxford English Dictionary defines 'weapon' to be 'an instrument of any kind used in warfare or in combat to attack and overcome an enemy'. There is nothing in the context or purpose of the Code which requires an alternative interpretation to be given to those words. 37 The manner in which the lighter and canola oil were used in combination, namely as a makeshift 'flamethrower' directed towards and in the vicinity of Ms Ford (as captured in the CCTV footage) satisfies me beyond reasonable doubt that this circumstance has been proven. The items were clearly used to effect the stealing. The actions of the accused were intended to be a threat to inflict bodily harm if Ms Ford intervened in the accused's attempts to steal the cigarettes. Conclusion on the elements and the circumstance that the accused was armed with offensive weapons 38 I was satisfied that each element of the offence and the circumstance that the accused was armed with offensive weapons at the time of the commission of the offence were proven beyond reasonable doubt. -- 9 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 10 39 Consequently, I was satisfied pursuant to s 41(2(c) of the CLMI Act that the accused committed the offence, as amended, namely that: [O]n 16 July 2021 at Medina, [the accused] stole from [Abbey] Lee Ford, with threats of violence cigarettes, … and that she was armed with offensive weapons, namely a lighter and spray canister. Consequences of finding that the accused committed the offence 40 Having found beyond reasonable doubt that the accused committed the offence, the CLMI Act provides that I must not enter a judgment of conviction. I am required to make an order under pt 5 of the CLMI Act.16 Part 5 of the Criminal Law (Mental Impairment) Act 2023 (WA) - Orders that may be made following a finding that the accused committed the offence 41 Having found that the accused committed the offence, the court must make one of the following orders set out at s 46(1) of the CLMI Act: (a) make a custody order (CO); or (b) make a CSO; or (c) order that the person be released unconditionally. 42 If the statutory penalty for the offence is or includes imprisonment, then in circumstances where the accused is found to have committed a serious offence, 'a custody order must be made in respect of a person if the offence that the person is found to have committed was a serious offence'17 unless, relevantly, 'the court is satisfied on the balance of probabilities that any risk that the person appears to present to the safety of the community can be adequately managed under a community supervision order'.18 43 The offence of armed robbery is a 'serious offence'. It is listed in sch 1 of the CLMI Act which sets out those offences that are defined by the CLMI Act to be 'serious offences'. The offence of 'armed robbery' set out at s 392 of the Code carries a maximum penalty of life imprisonment. 16 CLMI Act s 43(3) and s 43(5). 17 CLMI Act s 46(2). 18 CLMI Act s 46(2)(a). -- 10 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 11 44 Furthermore, in circumstances where an accused is found to have committed a 'serious offence', the court cannot release the person unless the following conditions are met:19 (a) the person was a child at the time of the commission of the serious offence; and (b) the court is satisfied that there are exceptional circumstances. 45 Consequently, in this case I am restricted to either imposing a CO or releasing the accused on a CSO. 46 A CSO is an order that a person, while residing in the community, must comply with the conditions of the order set by the court for the protection of the community.20 A CSO cannot be longer than five years. The conditions of a CSO are those set out in s 54 of the CLMI Act, together with any of the additional conditions set out in s 55 of the CLMI Act that the court may impose. 47 In deciding what order to make, without limiting the things that the court may consider relevant in deciding what order to make,21 in the circumstances of this matter, the court is required to have regard to the following factors:22 (a) the protection of the community; (b) the nature of the offence and the circumstances of its commission; (c) the person's character, antecedents, age and health; (d) the nature of the person's mental impairment; (e) the relationship between the mental impairment and the offending conduct; (f) the degree of risk that the person appears to present to themself or the safety of the community because of their mental impairment; and (g) the extent to which adequate resources are available for the treatment, care and support of the person in the community. 19 CLMI Act s 46(4). 20 CLMI Act s 52. 21 CLMI Act s 47(2). 22 CLMI Act s 47. -- 11 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 12 48 A further factor was that the accused had spent 125 days in custody. 49 Both counsel for the State and counsel for the accused made submissions as to the appropriate order to make in this case. 50 The court also had a number of reports available to it, including: 1. Reports from Dr Andrew Robinson, consultant forensic psychiatrist dated 4 May 2023 and 4 December 2023, dealing with the accused's fitness to stand trial (finding the accused fit to stand trial in the first report, but unfit to stand trial in the second report). 2. Report from Dr Nicholas Ho, consultant psychiatrist dated 11 June 2024, dealing with the accused's fitness to stand trial (finding the accused unfit to stand trial). 3. Pre-disposition report dated 8 December 2025, from Jaclyn Davie, senior corrections officer, CLMI Services Adult Community Corrections. 51 I was also provided with the accused's criminal history. 52 Counsel for the accused also tendered a letter from Ruah Community Services, dated 8 December 2025. Summary of the court's findings as to the accused's current mental health and general situation leading to a conclusion that a community supervision order was the appropriate order 53 In deciding what order to make, I was mindful of the objects and principles to be applied by a court in considering what order to make under the CLMI Act. These include ensuring that persons with a mental impairment:23 (a) suffer the least possible interference with their rights, dignity or restriction upon their freedom; (b) are reintegrated into the community in a safe manner; (c) receive proper treatment; (d) that victims of offences should be acknowledged and heard; and (e) that the role of carers and families should be recognised. 23 CLMI Act s 7(1) and s 7(2). -- 12 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 13 54 I must also ensure that due consideration is given to the paramount consideration of a court when performing a function of the act, namely 'the protection of the community'.24 55 Despite the fact that Dr Robinson initially found the accused fit to stand trial, there has never been any dispute that the accused suffered from a diagnosed mental illness, namely schizoaffective disorder for which she needed treatment.25 These reports, together with counsel's submissions and other materials, caused me to reach a proper understanding of the accused's position. 56 At the time of making my findings, the accused was on bail and residing with her mother and brother, both of whom have attended court for the hearing. Their presence at court, as well as the attendance of a representative from the Mental Health Advocacy Service, and the information set out in the pre-disposition report,26 satisfied me that the accused was well supported and monitored in the community. 57 Ms Martelli, counsel for the accused, also provided the letter from Ruah Community Services indicating their support for the accused. 58 Furthermore, I am satisfied that these offences were, in light of her previous criminal history, to a degree, an aberration. The accused had no prior convictions for violence. 59 Significantly, this was an offence committed 4 ½ years earlier. 60 The State accepted that the accused had not been convicted of any further offending in the intervening period. 61 Both the State and counsel for the accused submitted that the appropriate order to be made was that the accused be released on a CSO. 62 I was satisfied that the services that were currently in place, together with the conditions that I could impose pursuant to a CSO, could adequately address the accused's serious psychiatric condition and associated risks to the community. 24 CLMI Act s 8. 25 Report of Dr Andrew Robinson, consultant forensic psychiatrist dated 4 May 2023, page 5; Report of Dr Andrew Robinson dated 4 December 2023, page 17; Report of Dr Nicholas Ho, consultant psychiatrist dated 11 June 2024, page 1. 26 The pre-disposition report, at pages 4 and 5 sets out the services that the accused was engaged with, including: Central West Mental Health Services, Midwest Community Alcohol and Drug Service and the National Disability Insurance Scheme. -- 13 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 14 63 In all of the circumstances, I am satisfied on the balance of probabilities that a CSO to run for 12 months with conditions was the appropriate order. 64 Consequently, I released the accused on a CSO with the conditions set out at [4] of these reasons. -- 14 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 15 ANNEXURE A -- 15 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 16 -- 16 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 17 -- 17 of 18 -- [2025] WADC 104 LEVY DCJ [2025] WADC 105 [JM] Page 18 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DF Associate to Judge Levy 21 MAY 2026 -- 18 of 18 --