A WA District Court judge has apologised to a 20-year-old Kalgoorlie man with severe cognitive impairment who spent 451 days in custody — despite having been granted bail — after indecently assaulting a teenage girl.
The Kalgoorlie District Court on Monday heard the man, who the ABC chose not to name, was diagnosed with fetal alcohol spectrum disorder (FASD), suffered from schizophrenia and had a history of solvent abuse.
He was 18 when he approached a 14-year-old girl in the underwear section of the Kalgoorlie Kmart store in November 2021 and grabbed her on the buttocks.
The court heard he had moved "very close" to the girl, who was a stranger, and was "rambling about buying him socks".
After he touched her, she started crying and approached the store manager who called the police.
The prosecutor said the young girl was "upset and traumatised".
The 20-year-old pleaded guilty to indecently dealing with a child aged over 13 and under 16, after the original charge of aggravated indecent assault was downgraded.
The charge carries a maximum penalty of seven years' imprisonment.
In custody 'far too long'
While acknowledging the seriousness of the offence, Judge Wendy Gillan told the court at his sentencing hearing on Monday that the man had been in custody for "far too long".
"This should have been dealt with more urgently than it has been," she said.
"I'm very concerned that this man has been incarcerated now for more than a year."
The court heard the man had been granted bail but was never released because of a lack of suitable accommodation through the National Disability Insurance Scheme (NDIS).
"This is not acceptable behaviour … but it seems to me we're in the land of fines," Judge Gillan told the prosecutor.
But the prosecution disagreed and sought a term of imprisonment, describing the incident as an "escalation" and pointing to a psychological report that said the man was a "high risk" for sexual offending in the future.
The prosecution also told the court the 20-year-old had been issued three separate move-on notices in the space of a week in October and November 2021 after incidents at two Kalgoorlie hotels and a coffee shop.
Man kept in protective custody
Defence lawyer Leneva Polmear, from the Aboriginal Legal Service of WA, told the court the man had been held in isolation throughout his time in custody.
She told the court he had to be moved twice — from Eastern Goldfields Regional Prison to Hakea Prison and finally to Casaurina Prison — because he was "quite vulnerable".
"He has had to be kept away from other prisoners because of his vulnerabilities," Ms Polmear said.
Ms Polmear said the 20-year-old had grown up with his grandparents but no longer had family capable of caring for him.
She said that it took 14 months to find a full-time NDIS carer for him, and he would need care for the rest of his life.
"The accommodation we've found is not in Kalgoorlie, which is where he wants to live, but in Perth," Ms Polmear said.
"It's been causing me quite a bit of stress, although it is [the 20-year-old] who is in custody.
"At least we have a plan now, which we didn't have previously."
Lifetime restraining order in place
The man was fined $100, which was suspended for one day, as the judge took his time in custody into account.
A lifetime restraining order that prevented him approaching within 50 metres of the victim was also issued.
"You can't touch people unless they want you to … unless they ask you to," Judge Gillan told the man.
"And sniffing … that doesn't do you any good."
"I'm going to stop," the man replied.
As a parting word to the 20-year-old, Judge Gillan told him:
"I'm really sorry you've spent so much time in custody."
