Man suffering from schizophrenia shot by police after assaulting one of them spared immediate jail term

A homeless man suffering from schizophrenia who was shot by police three times during an armed stand-off has been spared an immediate jail term after being found guilty of assault — despite never touching the officers. Drew Christopher Lushey was shot twice in the stomach and once in the hand after refusing to put down a knife and then picking up a metal pole during an incident in Yanchep bushland around midnight in September 2020. Sen. Const. Shane Smith and Const. Dean Walker began following the 41-year-old after watching him buy around $200 worth of groceries from a service station and leave without collecting his $4 change. The attendant mentioned the odd behaviour to the officers, who had pulled up to refuel. Lushey had used four $50 notes to pay for his $196 worth of groceries. Sen. Const. Smith told the judge-alone District Court of WA trial earlier this year that the pair decided to investigate because “drug dealers usually pay with larger notes” while Const. Walker said he believed Lushey might have been under the influence of illegal substances. At Lushey’s sentencing late last month, Judge Martin Flynn said he had not consumed any drugs or alcohol, but the paranoid schizophrenic was exhibiting symptoms of a chronic psychosis that night. He had been living in bushland around Yanchep and was receiving social security payments but was not on medication when the stand-off unfolded. Judge Flynn said Lushey moved away from the officers when they first approached, irrationally fearful of their intentions. But when Const. Smith came close, and Lushey stopped, repeatedly saying, “Shoot me” and speaking incoherently while brandishing a knife. He moved away again, and the officers pursued, guns drawn and torches shining, before finding Lushey crouched in the long grass. Body-worn camera footage showed them yelling at him to drop the knife, put up his hands and “get on the floor”. One shouted: “Don’t f***ing do it, don’t do it man.” Instead of dropping the knife, Lushey made a throwing gesture and took a few steps towards Const. Walker before retreating, then picking up a metal pole. After he walked towards Const. Walker again — bending his knees as if preparing to strike down or throw the pole — three shots were fired, and Lushey fell to the ground. He survived a coma, suffered a permanent injury to his right hand that affects its function and, according to a doctor treating him, is experiencing symptoms of post-traumatic stress disorder. Lushey’s lawyers argued at trial that the officers’ actions were unlawful and that they used more force than was reasonable. Judge Flynn found the officers did not have a reason to follow Lushey from the service station, but they did have reasonable grounds to pull their guns. The movement Lushey made towards Const. Walker constituted assault; the judge ruled but found him not guilty of assaulting Const. Smith with his first gesture. Judge Flynn imposed a 15-month term of imprisonment, suspended for 12 months. “The factors that have led me to the decision to suspend includes that you have already spent 74 days in custody awaiting trial at various points in time,” the judge said. He decided against involving a Community Corrections officer to supervise Lushey, saying his current regime of treatment by mental health professionals, including home visits, would suffice.