R v Wagner - [2014] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WAGNER
[2014] SASC 70
Reasons for Decision of The Honourable Justice Kelly
30 May 2014
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
On 7 July 2011 the applicant was found mentally incompetent to commit the offence of murder and committed to detention pursuant to a supervision order made under s 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA). The applicant, who is currently detained at James Nash House, applies for a variation of that order and release on licence.
Held:
(1) The applicant be released on licence on terms that accord with stages one and two of the transition plan devised by the psychiatrists. During these stages however, accompanied leave from Ashton House is prohibited, except for specified appointments.
(2) In order to proceed beyond stage two of the transition plan, further approval of the court will be required.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269P, s 269Q, s 269S, s 269T(1), s 269T(2); Criminal Law (Sentencing) Act 1988 (SA) Division 3, s 24(1b), referred to.
R v Ridings [2008] SASC 366, applied.

R v WAGNER
[2014] SASC 70
Application for Release on Licence
KELLY J.

This is an application made under s 269P of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) for variation of a supervision order and release on licence.
Before dealing with the issues which arise on the application it is helpful to set out the relevant background.
Background
On 7 July 2011 the applicant Vicky Lee Wagner was found not guilty by reason of mental incompetence of one count of murder of her mother Joyce Brown. She was declared liable to supervision under the provisions of Part 8A of the Act and under the provisions of s 269O(1)(b)(i) the trial Judge made a supervision order committing the applicant to detention fixing a limiting term of life.
Since that date the applicant has been receiving treatment under a treatment plan which remains in force under the provisions of s 269Q of the Act. Currently she remains in detention at James Nash House.
The applicant’s treating psychiatrist Dr Nambiar has supported the application by the applicant to reside at Ashton House which is a step-down facility from James Nash House with the intention being that subject to satisfactory progress the applicant can ultimately continue her rehabilitation and progress towards reintegration in the community.
When arraigned originally on the charge of murder, the applicant raised the defence of mental competence however admitted that on 15 May 2010 at Salisbury Downs she inflicted over 140 stab and slash type wounds to her mother Joyce Brown which caused Ms Brown’s death.
The applicant has suffered from schizoaffective disorder for many years. However, before turning to the evidence which was led at the hearing concerning her current mental…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wagner

Details

AGLC: R v Wagner [2014] SASC 70
Case: [2014] SASC 70
Decision Date: 30 May 2014

CaseChat Overview and Summary

In the case of R v Wagner, the applicant, Vicky Lee Wagner, sought the variation of a supervision order made under the Mental Health Act. The applicant, found not guilty by reason of mental incompetence for the murder of her mother, was committed to detention under a supervision order with a limiting term of life. The application sought her release on licence to reside at Ashton House, a step-down facility from James Nash House, the secure mental health facility where she is currently detained.

The court had to decide whether the applicant should be released on licence, and if so, under what conditions. The legal issues involved interpreting the relevant provisions of the Mental Health Act, particularly sections 269P and 269T, which permit varying a supervision order and outline the matters the court must consider when making such a decision. The court also had to consider the applicant’s mental condition, the safety of the community, the availability of resources for her treatment and support in the community, and her likelihood of complying with the conditions of a licence. Additionally, the court had to ensure that the applicant’s next of kin and the victim's next of kin, if applicable, had been given reasonable notice of the proceedings.

The court considered reports from three different psychiatrists and other experts, the most recent report by the Minister, and the report on the attitudes of victims and next of kin. The applicant's psychiatrist supported her application, noting her satisfactory progress and potential for further rehabilitation. The court concluded that, while there were risks, they could be managed through strict conditions. The court ordered that the applicant be released on licence with conditions that included restricted leave from James Nash House to Ashton House, followed by restricted day leave to Ashton House with regular checks. The applicant was not permitted to undertake accompanied leaves into the community except for medical and Corrections appointments.

The court's decision reflects a careful balancing of the applicant's need for rehabilitation and reintegration into the community against the need to protect public safety. The release is subject to strict and closely monitored conditions, ensuring that the safety of the community remains a paramount consideration.

Orders

Orders of the court

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Background

Background to the litigation

Before dealing with the issues which arise on the application it is helpful to set out the relevant background.Background On 7 July 2011 the applicant Vicky Lee Wagner was found not guilty by reason of mental incompetence of one count of murder of her mother Joyce Brown. She was declared liable to supervision under the provisions of Part 8A of the Act and under the provisions of s 269O(1)(b)(i) the trial Judge made a supervision order committing the applicant to detention fixing a limiting term of life. Since that date the applicant has been receiving treatment under a treatment plan which remains in force under the provisions of s 269Q of the Act. Currently she remains in detention at James Nash House. The applicant’s treating psychiatrist Dr Nambiar has supported the application by the applicant to reside at Ashton House which is a step-down facility from James Nash House with the intention being that subject to satisfactory progress the applicant can ultimately continue her rehabilitation and progress towards reintegration in the community. When arraigned originally on the charge of murder, the applicant raised the defence of mental competence however admitted that on 15 May 2010 at Salisbury Downs she inflicted over 140 stab and slash type wounds to her mother Joyce Brown which caused Ms Brown’s death. The applicant has suffered from schizoaffective disorder for many years. However, before turning to the evidence which was led at the hearing concerning her current mental state, it is necessary to discuss the terms of the legislation governing the application and the application of the relevant principles contained in that legislation. Section 269P of the Act permits the Court to vary a supervision order such as to permit the release of the applicant on licence on conditions to be decided by the Court and specified in the licence. Section 269S of the Act makes it explicit that the Court must apply the principle that restrictions on the applicant’s freedom and personal autonomy are to be kept to the minimum consistent with the safety of the community. In addition, the Court when determining an application for variation of a supervision order must have regard to the matters specified in s 269T(1) and (2) which states:269T—Matters to which court is to have regard(1) In deciding proceedings under this Division, the court should have regard to—(a)the nature of the defendant's mental impairment; and(b)whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and(c)whether there are adequate resources available for the treatment and support of the defendant in the community; and(d)whether the defendant is likely to comply with the conditions of a licence; and(e)other matters that the court thinks relevant.(2) The court cannot release a defendant under this Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court—(a)has considered at least three reports (expert reports) each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant, on—(i)the mental condition of the defendant; and(ii)the possible effects of the proposed action on the behaviour of the defendant; and(b)has considered the report most recently submitted to the court by the Minister under this Division; and(c)has considered the report on the attitudes of victims and next of kin prepared under this Division; and(d)is satisfied that—(i)the defendant's next of kin; and(ii)the victim (if any) of the defendant's conduct; and(iii)if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,have been given reasonable notice of the proceedings.…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

It can be seen that strict limitations have been imposed on the applicant’s release. This will be a gradual and highly monitored process. Stage one involves restricted leave from James Nash House, the secure mental health facility where the applicant is currently detained, accompanied at all times, for the purposes of familiarising the applicant with Ashton House. Stage two involves restricted day leave to Ashton House, during which the applicant will not be accompanied by staff but would be subject to regular checks. During neither of these stages is the applicant permitted to undertake accompanied leaves into the community, except for the purposes of the aforementioned medical and Corrections appointments. Conclusion I order that the applicant be released on licence on the conditions set out in these reasons.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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