[2025] SADC 61

Prosecution: R Counsel: MS T NELSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: ISSAC JOSH WARREN Counsel: MR G LANG - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Hearing Date/s: 17/05/2024, 17/12/2024, 07/03/2025 File No/s: DCCRM-23-042821 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v WARREN [2025] SADC 61 Reasons for Ruling of his Honour Judge Soulio 21 March 2025 CRIMINAL LAW Defendant charged with aggravated serious criminal trespass in a place of residence, indecent assault, and theft - investigation into mental competence or fitness to stand trial - defendant declared mentally unfit to stand trial - decided that objective elements established beyond reasonable doubt - defendant declared liable to supervision - limiting term four years, eight months and 25 days commencing from 21 March 2025 - defendant to be detained Criminal Law Consolidation Act 1935 (SA) ss 56, 134, 170, Part 8A, referred to. R v Bober (No.3) (2010) 107 SASR 165; R v Behari (2011) 110 SASR 147, considered. -- 1 of 9 -- -- 2 of 9 -- R v WARREN [2025] SADC 61 Introduction 1 The defendant, Isaac Josh Lynton Warren, was charged with offences of aggravated serious criminal trespass in a place of residence, indecent assault, and theft, committed on 23 April 2023 at Semaphore Park. He first appeared in this Court on 9 February 2024, ex-custody, at which time the issue of fitness to stand trial was raised and an adjournment requested. Finding of Unfitness to Stand Trial 2 The matter was listed then for 8 April 2024, at which time I was informed that enquiries had been made with the NDIS to determine the level of support that might be provided to Mr Warren. The matter was adjourned accordingly to 17 May 2024. 3 On that date, having considered the report of Dr Young of 4 March 2024, and the report of Dr Lowe of 13 May 2024, and the written and oral submissions of counsel, I dispensed with an investigation into fitness. I found pursuant to s 269MA(5) of the Criminal Law Consolidation Act (‘the Act’) that the defendant was mentally unfit to stand trial. 4 I noted that declarations had been provided in support of the prosecution case as to the objective elements of the offences, and further noted that the defendant, through his counsel, admitted the facts deposed to in the declarations relied upon by the prosecution. I found that accordingly the objective elements of the offences of aggravated serious criminal trespass in a place of residence, indecent assault, and theft, were established beyond reasonable doubt. 5 I declared the defendant liable to supervision under Part 8A of the Act, pursuant to s 26MB(2). 6 I was required, as a consequence, to consider the final disposition of the matter. I directed that reports be provided pursuant to ss 269Q, R, and T, of the Act. 7 I noted at that time that the defendant was potentially still eligible for NDIS support and that a report in support of his application was being prepared by an occupational therapist. That report was to be provided to me to assist in the process of consideration of a release on licence, and if so, determining the appropriate conditions that might be imposed 8 Thereafter, the matter was adjourned from time to time for a number of reasons to endeavour to clarify the level of support that might be made available to Mr Warren. Such enquiries, and the cooperative efforts of counsel for the prosecution and defence to determine an appropriate outcome in this matter, are now, for reasons beyond their control, at an impasse. -- 3 of 9 -- [2025] SADC 61 2 Fixing a Limiting Term 9 I am required to fix a limiting term. In doing so, I must have regard to the circumstances of the offending and the circumstances of the defendant. The limiting term must be fixed having regard to what would have been the appropriate penalty for the offending, absent any discount for the acknowledgement that the objective elements were established, and absent an allowance for the condition of the defendant that led to the finding that he is mentally unfit to stand trial. The Offending 10 The circumstances of the offending are unusual, and for the victim of the offending no doubt disorienting, extremely frightening, and indeed terrifying. Having said that, the manner in which the offence was committed was, as I have said, unusual. 11 The background to the offending is that the victim of the offending, Ms AK, had returned to her house at Semaphore Park in the early hours of the morning of 23 April 2023 after socialising with friends. She locked the doors of the house and went to bed. Her partner was absent that evening and she was at home alone. 12 At about 6.00 am she woke briefly and noticed that a television in the bedroom was on. She said that she could feel that there was someone laying behind her, whom she assumed was her partner. She referred to the person she believed was her partner by her partner's name, and in effect complained that the television was on. The person behind her, who was the defendant, handed her the remote control for the television and she turned the television off. It seems that she returned to sleep. 13 About 40 minutes later she heard what she thought was her cat vomiting and again referred to the man she thought was her partner, raising that issue. There was no response. She turned and saw that it was not her partner laying behind her, but rather the defendant. She jumped out of the bed, as did the defendant. She saw that it was not her cat that had been vomiting, but rather what she described as a small white fluffy dog in the bedroom. 14 She yelled at the defendant to get out of her house. He said 'I'm so sorry, I'm sorry'. She asked where her telephone was and the defendant said 'My brother took it', implying at least that there had been two men in the house at some stage, although that is not clear. The defendant then left the house by the back door and the dog followed. Ms AK went into another room and saw that there had been some rummaging through cupboards and the like, and saw that items had been stolen, including a PlayStation. 15 Police attended at Ms AK's address shortly afterwards, and recorded that Ms AK was visibly distressed. They noted that the security screen door handle had been forced from the door and that there was damage caused to the wooden door and door frame in order to force the door open. That is the gravamen of Count 1. -- 4 of 9 -- [2025] SADC 61 3 16 Police, when searching the surrounding area, discovered a small white fluffy dog wandering about, seized the dog, and identified that dog as having been sighted the day before at the defendant's residence at Rosewater, where they had attended for an unrelated matter. Police also found a backpack which contained an assortment of clothing, the PlayStation in question, and other items which had been stolen. 17 Police attended at another address as part of the search, and located the defendant hiding in a driveway behind a closed roller door. They located nearby coins and a gold bracelet which belonged to Ms AK's partner. Those items were also particularised as the subject of the count of theft. 18 The count of indecent assault relates to the accused laying behind the victim of the offending with his body in contact with hers. It is not suggested that he touched her with his hands or in any other way. The Defendant’s Personal Circumstances 19 In considering the personal circumstances of the defendant, I note that he is now 29 years of age. He has a limited criminal history, but some relevant offending. In February 2024, after this offending was committed, he was dealt with on a number of charges committed between 6 November 2022 and 22 April 2023, the latter date being the date of this offending, namely two counts of being unlawfully on premises, theft, indecent assault, and 10 bail breaches. He was found not guilty of those offences pursuant to Part 8A of the Act, and released on what was described as a 'Division 4 licence' with a limiting term that seems to have been set at three months and one week. 20 The defendant's personal circumstances have been set out in a number of reports obtained during the course of these proceeding, and indeed the earlier proceedings. The history elicited by Dr White, a psychologist, in his report of 15 April 2023 was that the defendant had been born in Adelaide. His parents had never been in a relationship during his life, and had indeed separated before he was born. He was unable to describe his mother, and said that he had no relationship with her, and had not seen her for a long time. He understood that his father was deceased. He said he did not know when that had happened. He understood that it may have had something to do with an accident and something to do with alcohol. He was upset by his father's passing, despite the lack of a relationship his father. 21 He had been in the care of Ms Warren since he was just nine months of age, and regarded her as his mother, and described a positive relationship with her. She indeed attended the assessment by Dr White. Mr Warren reported that he understood he had eight siblings, or half-siblings, but did not have a relationship with them. He referred to his memories of childhood as being good, but I anticipate that must be seen in the context of the background I have described. 22 The defendant reported that his education had been completed to Year 10 level, and that he had initially attended a special school for students with -- 5 of 9 -- [2025] SADC 61 4 disabilities. He enjoyed school, it seems, and had friends at school, although his performance, he acknowledged, was below average. He referred to his favourite subject at school as football, and his least favourite subject as literacy. 23 He had attended a special school in Port Augusta from Years 8 to 10, but that, it seems, was a lonely time for him, and he said that he was unhappy there and had been bullied at school. He was constantly in trouble for fighting with those who had bullied him. 24 The defendant has never worked, and had been assessed as suitable for a Disability Pension relating to his cognitive difficulties, autism, and intellectual disability. The Limiting Term 25 The offending is clearly serious offending, which fortunately did not result in greater physical harm. I consider that the appropriate limiting term, which is, as I have said, the equivalent of the sentence I would have imposed as a single penalty, would be six years and six months. From that, there is to be deducted the period that the defendant has spent in custody or in secure detention. 26 During any period where a defendant has been detained, the defendant's liberty may be regarded has having been curtailed as a direct result of his mental impairment. Whilst on one view, time spent in detention is not a matter to be taken into account when fixing a limiting term,1 in the present case, the defendant has spent much of the time in prison on remand. He is entitled to credit for that period. That approach is reinforced by the observations of Kourakis J, as he then was, in R v Behari, where he said:2 In my view, time spent in custody must also be taken into account. The fact that a defendant has been kept in a particular psychiatric institution after his or her arrest does not mean that period on remand cannot be taken into account. The fact that a defendant has been detained prior to sentencing is a distinct consideration from his or her subjective responsibility for the offending conduct. Persons suffering from a mental impairment sufficient to require incarceration in a psychiatric institution may nonetheless be found mentally fit and competent and ultimately guilty of a criminal offence. The period spent in custody by them may, and often is, taken into account even though, depending on the circumstances, the weight it is given might vary. 27 I allow credit for the agreed period of one year, nine months and six days. 28 That makes the limiting term four years and eight months and 25 days. Final Disposition 29 In terms of disposition, I have had regard to the submissions of counsel and the reports including the initial reports upon which the issue of fitness was raised, the report of Dr Young of 4 March 2024, of Dr Raeside of 4 January 2024, and the 1 R v Bober (No.3) (2010) 107 SASR 165 at [57]. 2 R v Behari (2011) 110 SASR 147 at [17]. -- 6 of 9 -- [2025] SADC 61 5 reports of Dr Lowe, including that of 13 May 2024 to which I already referred, 24 July 2024, 14 November 2024, and 1 December 2024. 30 I also have regard to the reports prepared by Ms D'Alessandro dated 14 August 2022, 14 October 2024, and 14 November 2024, who had interviewed the next of kin pursuant to ss 269R and 269Z. I note that the victims were not able to be contacted for the purposes of the reports. In particular, I note that the next of kin, Mr Warren's sister, and mother Mrs Warren, have indicated that whilst they are prepared to endeavour to provide support for Mr Warren, and that accommodation may be made available, there are presently issues, including with Mrs Warren's health. In any event, that is rendered somewhat academic by matters that I will come to in a moment. 31 The current situation is usefully summarised in a report of 20 March 2025 by Dr Lloyd, the consultant forensic psychiatrist at the Forensic Mental Health Service. Dr Lloyd noted that Mr Warren had an established diagnosis of moderate intellectual disability with an IQ of 51. 32 As has been observed during the course of argument, the term 'moderate intellectual disability' is a term of art in the psychiatric and neuropsychological fields and in lay terms indicates what may be described as a severe intellectual impairment, illustrated by Dr Lloyd's reference to the intelligence quotient equating to the cognitive functioning of a two to five-year-old child. 33 Mr Warren also has a substance use disorder described as in remission while Mr Warren has been in custody. 34 Dr Lloyd noted that Mr Warren had been admitted to the Queen Elizabeth Hospital in 2022 for about a month following disruptive behaviour, including agitated behaviour and destruction of property. He was admitted at that time for a diagnostic clarification of his intellectual disability. It was noted that his family had been attempting to organise NDIS support. Dr Lloyd set out the history of the Magistrates Court matters to which I have referred and the disposition of those matters. He also noted that Mr Warren had remained in detention since July 2023. 35 In August 2024 Mr Warren had been admitted to James Nash House for 10 days in an attempt to facilitate further assessment and discharge planning. He had difficulty in that environment and became agitated and aggressive when asked to comply with nursing directions, which in turn led to verbal and physical aggression. 36 Cognitive and functional capacity assessments were carried out in an endeavour to increase Mr Warren's entitlement to NDIS support, which would be required for his safe discharge into the community. The assessments highlighted his significant cognitive and functional deficits, and recommended that Mr Warren be provided supported accommodation, and 24-hour care from NDIS workers. -- 7 of 9 -- [2025] SADC 61 6 37 Dr Lloyd confirmed, as has been put to me in submissions, that the NDIS response was to approve funding that would only enable seven hours of one-to- one support each day, which Dr Lloyd described as 'grossly inadequate' to meet Mr Warren's needs. 38 Attempts had been made to seek review and amendment of the NDIS support allocation with the Forensic Mental Health team liaising with those involved in Mr Warren's care and support. Dr Lloyd said that that process had been challenging due to the opaque nature of NDIS' funding approval process and procedure. 39 Dr Lloyd observed that Mr Warren's intellectual disability complicated his ability to engage with disability services, to abstain from illicit drug use, to participate in a prosocial routine of positive activities, and to limit his criminal offending. He observed that Mr Warren had not previously attempted to live in the community with a high level of specialised support, which had been recommended through multiple assessments. 40 Dr Lloyd noted that if released today, whilst there would be accommodation available, Mr Warren would only receive seven hours of supervision, leaving the remaining 17 hours per day unsupervised and without support, which was inadequate to safely manage Mr Warren in the community. 41 Dr Lloyd concluded that Mr Warren is therefore not currently safe and suitable to be released from detention, and said that considerably more discharge planning is required to coordinate his safe release to the community. 42 The Forensic Mental Health Service expressed the opinion that Mr Warren should be committed to detention to enable finalisation of his discharge planning; and said that a further update could be submitted to the court at that time, outlining proposed supports and strategies for managing his risk. 43 Dr Lloyd also said that if committed to detention, ideally Mr Warren would be transferred to James Nash House for discharge planning, but noted there is an extreme bed shortage and it is unlikely he would receive an admission, particularly following his poorly tolerated admission in August 2024. 44 Dr Lloyd said that the mental health team would be applying for a ministerial direction to continue Mr Warren's management in a custodial setting with ongoing in-reach by the Forensic Community Mental Health Service, and liaison with other providers to finalise discharge planning. 45 Dr Lloyd acknowledged the distress caused to Mr Warren as a result of his incarceration and similar distress during his admission to James Nash House and, indeed, in 2022, when admitted to the Queen Elizabeth Hospital. It was suggested that containment in a secure environment, whether custodial or health, caused Mr Warren distress, but if released into inadequate support situations there was a high risk of resumption of illicit substance abuse and reoffending, likely to result in a return to custody. -- 8 of 9 -- [2025] SADC 61 7 46 In considering the disposition of the matter, I take into account s 269NA of the Act, which provides that: (1) The paramount consideration of the court in determining whether to release a defendant under this Division, or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general). (2) The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum. Orders 47 Having regard to the reports to which I have referred and the submissions of counsel and what is common ground in terms of the immediate and appropriate disposition, I direct that Mr Warren be detained. 48 In saying that, I note that inevitably, at present at least, Mr Warren will be detained in a prison, presumably Yatala Labour Prison. I highlight the observations of Dr Lowe in her report of 1 December 2024, where she said: Prison is well recognised to be a suboptimal environment for any person to receive mental health care and rehabilitation. Prisons can be dangerous environments depending on the milieu of prisoners accommodated and the internal process of the custodial facility. This is not unique to Mr Warren and can be valid for every person detained within a custodial facility. In Mr Warren’s case, he has the added vulnerability of being a young Indigenous man with an intellectual disability. As outlined above, Mr Warren is currently one of 5 young intellectually disabled indigenous Forensic Patients awaiting an admission to James Nash House. While this situation reflects a poorly resourced forensic mental health system, it is sadly not unique to Mr Warren. As soon as a bed is available for Mr Warren to be admitted to James Nash House, this will occur. However, given the extreme pressures within the system and the need to prioritise the treatment of acutely psychiatrically unwell prisoners, there is no guarantee about when this will occur. 49 I have been provided with a set of draft orders, but it seems that, in view of my ruling, the only order I need make is the order I have made. In saying that, upon any update in the level of care and support that may be afforded to Mr Warren through the NDIS system, it is open to Mr Warren to apply for a variation of the order, so that if arrangements can be made for him to be released on licence under supervision, I would give favourable consideration to such application. -- 9 of 9 --