R v Wagner
[2014] SASC 70
•30 May 2014
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 70Application 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 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.
…
Although s 269T(2)(c) requires the Court to consider the attitude of the victims and the next of kin before making a determination, nevertheless it is plain from the scheme of the legislation that the attitude of the victims and the next of kin cannot be a dominant consideration in the determination of the Court.[1]
[1] R v Ridings [2008] SASC 366 per White J at [16]-[17]:
Those attitudes and feelings are quite understandable, but I do not consider that they should govern the outcome of the application. As pointed out earlier, the statutory scheme contained in part 8A of the CLCA requires the Court to apply the principle that restrictions on the applicant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The principle contained in s 269S has been described as the cornerstone to the operation of the statutory scheme. The effect of 629S is that the court should have regard, as a fundamental matter, to the safety of the community but otherwise should ensure that restrictions on the defendant’s freedom and personal autonomy are kept to the minimum consistent with that safety. Continuing a person in custody for the purposes of retribution or punishment is not an appropriate consideration when determining an application for the variation of a supervision order. …
It follows that while I consider the attitudes and feelings of the victim’s next of kin to be quite understandable, they cannot be a dominant consideration in my determination.
The legislative scheme set out in Part 8A of the Act is in marked contrast to the provisions in Division 3 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) concerning applications for release on licence by recidivist sexual offenders. Section 24(1b) of the Sentencing Act provides that the community’s safety is the paramount consideration for the Court in determining applications. The emphasis in the Part 8A scheme is on rehabilitation of the applicant and the fundamental consideration for the Court in determining the application is that interference with the applicant’s freedom and personal autonomy is to be kept at a minimum consistent only with the safety of the community.
The application
Consistent with the requirements of s 269T of the Act three different psychiatrists, Doctors Brereton, Nambiar and Raeside, prepared reports on the applicant’s psychiatric condition and with respect to the application for Ms Wagner to be released on licence. They also later gave oral evidence expanding on and clarifying aspects of those reports. Dr Nambiar has been the applicant’s treating psychiatrist since she was detained at James Nash House in 2012. Dr Brereton, who was previously the applicant’s treating psychiatrist in 2010 is the director in charge at Ashton House, the step-down facility. He will, upon the applicant’s transfer to Ashton House, become her treating psychiatrist. Dr Raeside originally provided an opinion as to the applicant’s mental condition in connection with the issue of mental competence at the trial and has provided a further report in the context of the current application. It is fair to say that each of the psychiatrists support the current application that the applicant be permitted to reside at Ashton House pursuant to a plan devised by the treating psychiatrists which will take place in four stages.
I should say at the outset that when originally giving evidence on the application there appeared to be some difference between Dr Nambiar and Dr Brereton as to the number of stages required and what would occur during each stage. However, it appears that after some discussion and clarification the Doctors have now agreed on a four stage process. The Doctors advanced a four stage transition plan in a jointly prepared report dated 28 March 2014, which is set out below:
Stage One
· Ms Wagner to have leave from James Nash House to Ashton House, accompanied at all times.
The purpose of this leave is to familiarise Ms Wagner with the layout of Ashton House, introduce her to staff and fellow patients on site and ensure Ms Wagner is familiar with policies and procedures in Ashton House (including an understanding of the restrictions that apply).
It is anticipated that this stage of leave would not require more than five or six visits.
Stage Two
· Ms Wagner to have leave out of James Nash House to spend time during the day at Ashton House.
· While in Ashton House she would not be accompanied by staff but, as with all patients at Ashton House, she would be subject to regular checks.
· At this stage Ms Wagner would also begin to undertake leaves into the community, but only accompanied by staff.
The purpose of this stage is to start the process of community-based rehabilitation with Ms Wagner. In the initial stages she would take on maintenance of her unit, cooking and money management and there will be a general assessment of her functional ability which involves community leave for activities such as shopping for food, bed linen and other necessities, all of which Ms Wagner would be required to do. Medium and long-term planning of her rehabilitation would also start, with options for activities such as exercise and education being explored. In addition, patients with licence conditions that allow leave from James Nash House have been required to attend community corrections to begin their appointments with a CCO.
It is anticipated this stage of leave would take a period of weeks depending on Ms Wagner’s progress.
Stage Three
· Stage Two’s program to continue but with the addition of overnight leaves from James Nash House to Ashton House. This would start at one overnight leave per week and slowly progress, depending on Ms Wagner’s progress, to several nights’ leave per week.
Towards the latter stages of Stage Three it is anticipated Ms Wagner would spend the majority of her time in Ashton House, further developing her independent living skills and allowing the team to assess her willingness and ability to engage with therapy (including psychology appointments) and rehabilitation.
It is anticipated this stage of leave would take a period of weeks depending on Ms Wagner’s progress.
Stage Four
· Discharge from James Nash House to permanently reside at Ashton House under licence.
· Ms Wagner would continue to have accompanied leave into the community and, alongside this, a gradual program of unaccompanied community leaves would begin when suitable, starting with brief local trips and slowly developing.
At the most recent hearing of this application on 21 May 2014, counsel for the applicant expressed that the application at this stage is for release on licence in accordance with stages one and two. The prosecution did not oppose release on licence to stages one and two, and suggested that any movement to stage three require a fresh application be made with three reports, given that stage three involves a significant reduction in supervision of the applicant. With the exception of Mr Brown, the applicant’s father, all of the relevant family members who have been consulted in this matter and who have expressed an opinion are opposed to the release of the applicant on licence at this early stage. Put quite simply, the members of the applicant’s family have real fears and concern that if released the applicant may relapse and commit further violent acts against them or any one of them. Given the applicant’s previous history I consider their fears are understandable and justified.
It is common ground that the applicant suffers, and for many years has suffered, from a severe schizoaffective disorder. That condition has been treated by the introduction of Clozapine medication which has effected a complete resolution of the psychotic symptoms displayed by the applicant at the time of the events giving rise to the charge of murder. Both Dr Nambiar and Dr Brereton accept that the applicant has now developed good insight into her illness including the need for ongoing medication, the need to avoid relapse because of risk and an understanding of early warning signs. Doctors Nambiar and Brereton opined that the risk of harm to others by the applicant is entirely dependent on her mental health.
Given her current detention and the terms of the proposed staged release program, each of the doctors indicate that she is at low risk of relapse. They further stated that if any relapse was to occur, because of the level of supervision she will continue to have while at Ashton House, it would be possible to detect and intervene early before any significant risk of harm to others developed.
Given this is the view expressed in generally the same terms by each of the three psychiatrists who provided reports about the applicant, it must be accepted that now is the optimum time to commence the applicant’s reintegration in the community.
The conundrum is that the level of supervision currently offered and which will continue whilst the applicant is resident at Ashton House will be impossible to maintain further down the track when the applicant progresses to a lower level of supervision and ultimately, as is the plan, back into the community.
Thus, while it is evident from the evidence that the most effective way in which to advance the applicant’s rehabilitation is now to permit her to transfer to Ashton House, it is by no means clear that that level of supervision and thus security for the community generally can be maintained in the longer term.
Dr Raeside addressed some of these issues in the evidence he gave. Dr Raeside is of the opinion that in the case of sufferers of a chronic schizoaffective disorder there is a high risk of relapse at some stage in the longer term. I have taken Dr Raeside’s opinions in this matter into account in determining that it is appropriate that the applicant demonstrate continued stability as a resident at Ashton House before there is any contemplation of supervised leave for general visits into the community.
The applicant has been free of psychotic symptoms for some two and a half years and is now in remission, however I do not overlook Dr Raeside’s opinion in relation to her risk of relapse:
Q.Are you of the opinion that this status, if we can call it that, will remain if she remains on Clozapine.
A.No, I wouldn’t say that she will remain free. As I have just indicated, there’s a risk that she can again develop a relapse of schizophrenic or schizoaffective disorder just due to the nature of her condition, which is obviously fairly severe. But the difference is that unfortunately, given what’s happened, she’s now under much greater scrutiny. At the moment she’s under 24 hour scrutiny in an inpatient unit so that if she was to start to become unwell, that would be observed very early on and therefore appropriate measures could be taken such as increasing the dose of Clozapine or, if necessary, change of treatment, as well as being a secure setting and the security could be increased. So I think it’s very unlikely as she is at the moment that she could become acutely psychotic and dangerous without anyone observing any change in her mental state. That would be a process that would occur over some time. It may not be months, but it would not be within hours or days. It would be evident for some time before that.
Dr Raeside continued:
A.… So far it has been controlled with treatment, but it remains to be seen whether that will be enough to prevent further relapses. But I would be hopeful that with appropriate supervision and monitoring and ongoing compliance with medication, then the risk of that relapse will be markedly reduced.
Q.Reduced but not taken away completely. There is still a chance in those circumstances.
A.Yes, and that could be due to a number of factors. Unfortunately, one problem with Clozapine is that it’s an oral medication, it has to be taken by mount and so therefore, at least outside of a hospital setting, there is always a risk a person may become non-compliant. However, it can be monitored in terms of blood levels so you can objectively see whether the person is getting enough of the drug into their system, either the medication itself or whether they’re compliant. But it’s not the same as receiving an injection every two weeks where you can tell a person has received it as the needle goes into their arm. So one risk would be non-compliance; the second would be, as I said before, severe stressors of whatever type may produce a relapse and that may often be interpersonal settings. I’m not talking about Ms Wagner, but someone might have a relationship break-up or might be involved in an assault or an accident and that may cause a relapse of their psychotic illness.
These risks can be well managed whilst the applicant remains at Ashton House. Regular drug testing can certainly reduce the risk that the applicant will relapse and take alcohol or drugs without being detected at an early stage. Nevertheless severe stressors can cause relapse. If the applicant relapses she is a danger.
The applicant’s risk of relapse, particularly in the longer term, is a concerning aspect of the application concerns, especially in light of the fact that in the years between 2000 and 2010 when the applicant killed her mother, various treating healthcare professionals employed within the State mental health service undoubtedly failed to appreciate how unwell the applicant was. This is not by way of offering criticism of the mental health services in this State, which are plainly overstretched and under resourced. However it seems to be the case that in the years after the applicant is released from Ashton House it is unlikely that the State will be able to afford to monitor, to the degree capable within Ashton House, the daily movements and mental condition of the applicant. It is this aspect of the application that concerns me the most. Once the process of reintegration has begun it will be almost inevitable that at some point the applicant will be ultimately released back into the community. That is, after all, the purpose of the process. Members of the applicant’s family are right to be concerned. It is a relatively short period since the horrific events of 2010 occurred. It is true that the applicant’s mental health appears to have been stable for the last two and a half years, however that is a reasonably short timeframe against the background of the previous 10 years when the applicant struggled without success in the end to maintain mental equilibrium whilst living in the community.
There is a passage in the evidence given by Dr Raeside which crystallised the concern about the long term:
A.… At the moment the suggestion of her simply beginning a transition into Ashton House would not allow her to be wandering around into the community and turning up at people’s houses or even necessarily approaching people in the community. She would not be on her own down at the local shop or on a bus. At this stage it’s simply a transfer of location with skilled staffing with her if she was outside of her room in Ashton House.
…
A.… So those fears and concerns you’re talking about are real but I think they’re down the track at the next level, sort of reducing supervision.
…
Q.One of the things of course we have to consider is the risk to the community, endangering other people beyond just the next of kin. Can you talk about how risk is assessed in the context of Ms Wagner.
A.In general terms, the best predicator of future violence is past violence. So the fact that she’s acted in a highly aggressive and violent way is a significant risk factor going forward, so therefore one would never discount the chance of her being aggressive again. On a positive note though the fact was that she acted in that way while she was psychotically unwell so therefore if the psychosis is not present, the risk of her acting that way again is significantly less. It would be different if she was acting that way even when she was well, and had a history of violent assaults even when she’s taking medication and things like that, but my understanding is she’s only been like this when she was very psychotic so that reduces the risk. But there is still a significant risk, particularly if she’s become unwell, that she again would potentially become delusional and act on those delusional ideas.
It was explained during the hearing that it is contemplated that a staff member will accompany the applicant during all leaves back into the community during stages one, two and three. The purpose of that is not so much as to ensure that the applicant does not abscond or simply run away but to assess and to assist the applicant in redeveloping independent living skills. There was no dispute that if the applicant simply decides to leave she would not be apprehended, however the police would be immediately alerted if such a scenario was to occur.
Mindful of that evidence, it is my view that any orders which are made at this stage should provide that the applicant be required to become permanently resident and settled at Ashton House before she is permitted to undertake any community based rehabilitation in the form of supervised community leave either for shopping or any other purpose except for a medical necessity or to attend appointments as required by her correctional services supervising officer. I am prepared to approve release on licence on terms that accord with stages one and two, excluding any accompanied leave from Ashton House. With that qualification in mind and bearing in mind that the scheme of Part 8A of the legislation places primary emphasis on rehabilitation of the applicant, I am satisfied that the staged release of the applicant as contemplated by the psychiatrists to Ashton House will involve minimum risk to the community’s safety.
I am not satisfied, on the present evidence, that the interests of public safety would be adequately addressed if the applicant were released licence on terms that accord with stages three and four of the transition plan. Should the applicant wish to proceed beyond stage two of the transition plan, further approval of the Court will be required.
I have concluded that the applicant should be released on licence on the following terms:
1.That the supervision order made on 7 July 2011 committing the applicant to detention be revoked pursuant to Section 269P(1) of the Act, and that there be substituted in its place a supervision order pursuant to Section 269O(1)(b)(ii) of the Act releasing the applicant on licence;
2.That the applicant be released on licence subject to the following conditions:-
(a)That the applicant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to him from time to time with regard to medical, psychological and psychiatric treatment and medication.
(b)That for the initial period of release on licence the applicant comply with stages 1 and 2 of the transition plan set out in the joint report of Dr Brereton and Dr Nambiar dated 28 March 2014 attached hereto and marked “A”. Save and except for the accompanied leave from Ashton House during stage 2. Accompanied leave from Ashton House may be only to attend medical appointments and appointments with Correctional Services.
(c) That at the end of stage 2 of the transitional plan a report be prepared for the Court from Dr Brereton as to the success or otherwise of the transition plan to date. At that point there would need to be a further application to vary the supervision order to implement stages 3 or 4.
(d)That at any point the transitional plan up to stage 2 can be suspended by the Clinical Director or his nominee and the matter brought back to Court for further consideration.
(e)That the applicant continue to receive her medication current at the date of this order, and further that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
(f)That the applicant submit to random screening of her blood at the direction of the Director or the nominee, to ensure compliance with medication.
(g)That the applicant not use, possess or administer any narcotic or psychotropic drug which is not medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the applicant by a medically qualified practitioner be possessed or administered by the applicant only at prescribed or recommended dosages.
(h)That the applicant not consume alcohol.
(i)That the applicant’s case be managed by the Inpatient Team James Nash House and staff at the Forensic Step-Down Rehabilitation Unit and that the applicant comply with all the lawful directions of both teams or any person authorised by either team to give such directions, particularly with respect to attendances at all appointments nominated by either team or the said authorised person.
(j)That the applicant be under the supervision of a Community Corrections Officer employed by the Department for Correctional Services and assigned by the Parole Board of South Australia and that she obey the lawful directions of that officer or the Board with respect to non-medical matters.
(k)That the applicant shall submit herself for breath and/or urine testing as directed by her Community Corrections Officer, the Inpatient Team James Nash House or the Forensic Step-Down Rehabilitation Unit team, for the purpose of determining whether there is present in her body any illicit or non-prescribed drug or alcohol. Such breath tests to be administered at random and such urine tests administered at a minimum of once a week.
(l)That the applicant not depart or attempt to depart from the State of South Australia.
(m)That an activity plan be prepared each week detailing the proposed leave arrangement. A copy of this plan is then to be emailed each week to the nominated South Australia Police liaison officer.
(n)That the applicant not attend at the following areas:
Ingle Farm Shopping Centre
Tea Tree Plaza Shopping Centre
Greenacres Shopping Centre (as well as Optical and Dental premises within that centre)
(o)That the applicant not contact or approach, either directly or indirectly, the following persons:[2]
[2] To protect the privacy of these persons their names have been redacted.
(p)That the applicant not possess a firearm, ammunition or any part of a firearm.
(q)That the applicant submit to tests, including testing without notice, for gunshot residue.
3.In the event that the Director, or the Director’s nominee, is of the opinion that:
(i)the applicant has contravened, or is likely to contravene a condition of this order; or
(ii)the applicant is in need of a level of security that cannot be provided by the employees of the Forensic Step-Down Rehabilitation Unit,
the Director, or the Director’s nominee, or the Presiding Member of the Parole Board or the Presiding Member’s nominee shall forthwith notify the Director of Public Prosecutions of that opinion.
3A.If the Director of Public Prosecutions is notified by the Director or the Director’s nominee or the Presiding Member of the Parole Board, or the Presiding Members nominee in accordance with order 3 above, the Director of Public Prosecutions may forthwith make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.
4.That the applicant, the Director of Public Prosecutions - on behalf of the Crown - and the Parole Board shall be at liberty to apply at any time and from time to time, as they may be advised, at short notice to the other to vary or revoke this order or seek any other order in substitution thereof.
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.
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