R v Wagner (No 2) - [2018] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WAGNER (NO 2)
[2018] SASC 109
Judgment of The Honourable Justice Hinton
3 August 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
Applications to vary the terms of a supervision order pursuant to s 269P of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
On 7 July 2011 the applicant, Ms Wagner, was found not guilty of the murder of her mother on the grounds of mental incompetence. On the same day she was declared liable to supervision and was committed to detention. By variations to her supervision order since then the applicant has been permitted to reside at Ashton House, a forensic step down rehabilitation facility.
By the present applications Ms Wagner sought variation of her supervision order to permit her to stay at her partner’s house during periods of overnight unaccompanied leave from Ashton House. She also sought an arrangement that allowed for such overnight leave to progress to the point where she could be discharged from Ashton House. Lastly she applied to reduce the frequency of testing of her urine to ensure she was not drinking alcohol or using illicit drugs.
Held, granting the applications in part:
1.       The supervision order made on 18 July 2016 is varied by deleting clauses 2, 3, 3A and 4 and substituting conditions providing for, amongst other things:
(i)      Ms Wagner’s unaccompanied overnight leave from Ashton House provided such leave does not exceed two nights per week and is for the purpose of residing at her partner's residence; and
(ii)     A reduction in screening of Ms Wagner's urine to fortnightly for the purpose of ensuring she has not taken alcohol or illicit substances.
2.       The applications are adjourned to a date to be fixed such date being no sooner than four months from the date of judgment.
3. Dr Brereton and Dr Ferris, or two such other psychiatrists as the Director of Forensic Mental Health Service directs, are to report to this Court on the success or otherwise of the applicant’s transition to unaccompanied overnight leave as provided for by the order in (1) and whether, having regard to the criteria contained in s 269T CLCA, the order should be varied to permit additional unaccompanied overnight leave.
4.       The reports prepared for the purposes of order 3 immediately above are to be provided to counsel for the victim’s next of kin.
Criminal Law Consolidation Act 1935 (SA) ss 269P and 269T, referred to.
R v Wagner [2014] SASC 70; R v Wagner [2015] SASC 65, considered.

R v WAGNER (NO 2)
[2018] SASC 109
Criminal
HINTON J.
Introduction

On 7 July 2011 Ms Wagner was found not guilty of the murder of her mother, Mrs Joyce Brown, on the grounds of mental incompetence. On the same day Ms Wagner was declared liable to supervision and was committed to detention. Nearly three years later, on 30 May 2014, that supervision order was varied as the first step in a gradual and closely monitored plan prepared by Ms Wagner’s treating psychiatrists for her transition to living independently in the community. Since then Ms Wagner has twice returned to this Court for the further variation of the conditions of her supervision order to allow her to progress through the plan. The two applications presently before the Court seek to facilitate the next step in that progression. Amongst other things, Ms Wagner seeks orders that allow her overnight unaccompanied leave so that she might stay with her partner Mr Hull and which allow for such leave to progress to the point where she may be discharged from her current obligation to reside in a Forensic Mental Health institution.
It is convenient to set out the background to this matter before dealing with the applications.
Background
The history of this matter and the decision to release Ms Wagner on licence can be traced in the judgments of R v Wagner (SCCRM-10-332), R v Wagner [2014] SASC 70 and R v Wagner [2015] SASC 65.[1]
[1] See also the order of the Honourable Justice Peek made on 18 July 2016.
As at the time of killing her mother, Ms Wagner had a history of schizoaffective disorder, often with bizarre psychotic symptoms and at times depressive symptoms. Ms Wagner first had contact with mental health services in 1997 after the death of her infant son, Hayden. It was thought she was suffering from significant depressive symptoms. She had regular appointments with a psychiatrist and was prescribed anti-depressants. In 2006 she began to experience auditory hallucinations. In time those hallucinations intensified to the point where they were experienced by Ms Wagner “24 hours a day”. From 2006 to 2008 Ms Wagner was hospitalised a number of times due to her poor mental health. Eventually she was diagnosed as suffering a schizoaffective disorder. When hospitalised in 2008 it was recorded that she had not been sending her daughters to school out of a delusional fear that they were being physically and sexually abused by other children. In 2008 it was also noted that Ms Wagner’s compliance with oral medication was poor, resulting in her being started on an anti-psychotic medication injected fortnightly. In a report prepared for the trial of Ms Wagner’s mental competence to commit the murder of her mother, Dr Brereton, a forensic psychiatrist, recorded:
At this time [2008] she was hearing several different voices. She identified one as Hayden her son, the other as “Hayden the devil and a third and fourth voice whom she could not identify. She experienced the auditory hallucinations in both the second person and third person (i.e talking to her and talking about her). She would often hear short commands such as, “Sit there” or “Don’t move”. She said, “They gave me no peace”. She found them extremely distracting and stopped driving for a period because she was worried about her safety in the car, especially if her daughters were in the car. Ms Wagner found it difficult to have conversations with other people because the voices would start to make comments about the other person, which made it hard to follow the conversation.
Ms Wagner said the voices were distressing and virtually always said unpleasant things. Despite this, they occasionally caused her to laugh. She found sometimes she would laugh at the things she heard even if she found them unpleasant or inappropriate.
I asked Ms Wagner to give me examples of the auditory hallucinations she has experienced. She complained that they would say, “Sick and evil things”. A recurring theme consisted of Ms Wagner being warned that other people were going to, “Eat me” and, “Take my internal life”. She was warned that her body parts would then be given to her mother. Sometimes the auditory hallucinations would have sexual themes and talk about people she had had sex with in the past. While she was having sex with Jason they might tell her that she was actually in bed with someone else and then, “They’d join in”.
Ms Wagner remembers the voices would scream at her sometimes. On one occasion her mother prayed with her to try and get rid of the voices but the voices screamed so loud Ms Wagner insisted they stop praying. Ms Wagner recalls hitting her head to try and stop the voices and at their worst they prevented her from sleeping because she would have to get out of bed every ten minutes.
Ms Wagner recalls that when the voices of ‘Hayden her son’ calmed down and stopped saying unpleasant things, then the voice of ‘Hayden the devil’ would take over. Ms Wagner told me that on one occasion when ‘Hayden the devil’ was talking to her she felt compelled to go to her neighbour’s house and tell them, “I’m the devil”. Ms Wagner said she did this despite not wanting to. She said the auditory hallucinations did not give her commands but sometimes they seemed to control what she did.
Ms Wagner was hospitalised again in 2009 after telling her neighbour she was the devil.
Despite being prescribed antipsychotic medication, in 2010, the voices, and particularly that of Hayden, started to hound Ms Wagner. By this time she had ceased all parental responsibilities for her two daughters. Her ill health did not allow her to care for them. Subsequently her ex-husband was granted sole custody of the girls.
In his report Dr Brereton records Ms Wagner’s account of the events of the day her mother died as follows:
In May 2010, Ms Wagner stated she was experiencing constant auditory hallucinations; this included hearing her daughters screaming because they were being cut up and eaten. She remembers buying fish and chips one night which she could not eat because the piece of fish was misshapen and her auditory hallucinations told her it was a piece of … [N] … . She could not sleep because, “My son and the devil were hounding me”. She became preoccupied with the idea that her mother and her sister were trying to, “Get my internal life”. At times she could think of nothing else. She told me Jason was in hospital. In the end she became so distressed by her experiences that she tried to take an overdose and tried to cut her wrists. She remembers thinking that she needed to go to hospital and she told me she “regrets” that she did not.
On the day of the alleged offence her mother, father and cousin came to visit and brought a table for her. Ms Wagner told me her recollection of the incident is poor but she believes her father and cousin were at her front gate handling the table when her mother came in to see her. Ms Wagner told me at the time she was not afraid or angry with her mother and she had had no thoughts of harming her mother or anybody else. When she was with her mother however she heard a voice saying, “What else do you want from Vicki?”. At the time she was thinking, “They were entitled to my internal life, youth, [and my] virginity from my next life”. At this point Ms Wagner said, “I lost it”. She said, “I don’t know why, he was in me and controlled me”. Ms Wagner explained she hit her mother and then, “Took a knife to her”. As far as she can remember she believes they were in the dining room. She hit her mother who fell to the floor and went to the kitchen to pick up a knife but she is not certain about this and told me she cannot remember using the knife. Her next memory is of the police arriving at which point she said, “I’m under mental health.” She showed them the knife which she believes was by the sink but she cannot be sure. She told me, as far as she can recall, she was sitting at the kitchen table. She said, “It happened very quick, I can’t remember”.
Ms Wagner indicated that she did not fully realise what she had done until sometime later, partly because she kept, “Stopping myself thinking about it”. Ms Wagner explained that she does not understand why she harmed her mother, other than her fears about her mother taking her, “Internal life”. Ms Wagner said she is upset with the voices and wishes, “They hadn’t taken over my life”. Ms Wagner added, “I loved her, I was always there for her”. Currently she tries not to think too much about her mother but still dreams about her.
Ms Wagner’s family knew she had a mental illness. Up until Mrs Brown’s death Ms Wagner was closely supported by her family. They did not know, however, that she was capable of hurting anyone, let alone her mother.
At the time she killed her mother Ms Wagner was in a relationship with Jason Hull. They lived together. Mr Hull is quoted by Dr Brereton as saying, “I was aware that she was hearing voices and behaving in an erratic manner. It didn’t really seem to matter if Vicky didn’t have her injection because she behaved the same way whether she had it or not.” It appears that Ms Wagner did not respond to the anti-psychotic medication then prescribed for her. As will be seen her medication has since been changed and she has responded well.
In the attack upon her mother Ms Wagner inflicted over 140 stab and slash type wounds using a small kitchen steak-type knife. Mrs Brown died seven hours later in hospital. The attack was spontaneous, unprovoked and frenzied. It demonstrated Ms Wagner’s capacity when unwell for extreme and irrational violence.
The police took Ms Wagner to the Lyell McEwin Hospital. On 16 May 2010 Ms Wagner was assessed by Dr Rohan, a consultant psychiatrist at the hospital. Dr Brereton reports:
Dr Penny Rohan … assessed Ms Wagner … after Ms Wagner was brought to hospital by the police. Ms Wagner complained about her daughters being murdered and dismembered, she described assaulting her mother and she “expressed no remorse or emotion about this because somehow, not explained, she believed her mother was responsible for the men that had dismembered her children”. Dr Rohan notes, “It was clear from this interview that she was experiencing abusive command hallucinations and was experiencing messages from the radio and delusional beliefs about her mother and children. I would describe Vicki as thought disordered and showing no insight or awareness that she was unwell or that what she had done was wrong”. Dr Rohan said, “In summary, it would appear that Ms Wagner had stabbed her mother to death in the context of delusional psychotic beliefs, which she is known to have experienced on previous occasions. These episodes are due to a schizoaffective disorder which Vicki has suffered from for some time. There was no way to tell from this interview whether there were other factors involved such as substance abuse”.
In his 2011 report Dr Brereton observed:
It is of note that the psychotic symptoms she [Ms Wagner] reported shortly after the alleged offence are consistent with psychotic symptoms that she had reported in the past. When Ms Wagner spoke to police and health staff after the alleged offence, and tried to account for her actions, the predominant theme was the belief that her children were being murdered, physically abused (including being dismembered) and sexually abused. She appears to have become convinced that her mother was one of those responsible. There are reports that Ms Wagner had no history of being violent and had a reasonably good relationship with her mother, on whom she relied for support. The attack itself was extremely violent in nature, with a huge number of stab injuries and appears to have had a sexual element in that the victim’s trousers and underwear were pulled down and there were injuries to her mons pubis. I believe this is relevant given Ms Wagner’s belief that her daughters were being sexually abused and that this was somehow widely known and a source of amusement. She also made comments subsequently to hospital staff that her mother was trying to take her vagina. In my opinion all these factors indicate a psychotic motivation for Ms Wagner’s alleged offending.
As mentioned, at the time of the killing Ms Wagner was living with Mr Hull. They had been in a relationship for around four years. They were regular cannabis smokers. Ms Wagner used cannabis because it provided some relief from her auditory hallucinations. Whilst cannabis use would have worsened her symptoms it does not appear to have been instrumental in precipitating her psychosis.
On the day Mrs Brown was killed, Mr Hull was a patient at the Lyell McEwin Hospital presenting with psychotic symptoms as a consequence of himself suffering a schizoaffective disorder. Before his admission he had also contacted Mental Health Services noting the decline in Ms Wagner’s mental health. It appears that over a period of ten years prior to the offence, due to a combination of treatment for depression rather than psychosis, treatment resistance, periods of non-compliance with medication, and cannabis use, Ms Wagner suffered chronic symptoms of psychosis with little relief.
As also mentioned, on 7 July 2011 Ms Wagner was found not guilty of the murder of her mother on the grounds of mental incompetence. She was then declared liable to supervision and committed to detention. A treatment plan was composed and implemented. By 2014 Ms Wagner’s condition had stabilised. She had been free of psychotic symptoms for some two and a half years and was considered in remission. She applied for the variation of the supervision order made in 2011. The Judge who heard the application recorded:[2]
[2]    R v Wagner [2014] SASC 70 at [12]-[13] (Kelly J).
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.
…
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.

On the 2014 application only conditions facilitating stages one and two of the plan set out above were sought. With the exception of her father, Ms Wagner’s family were opposed to her release. The Judge noted that Ms Wagner’s new medication, Clozapine, had “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.”[3] Ms Wagner had 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”.[4] She was considered a low risk of relapse by the doctors but that any relapse would be likely detected in the Ashton House environs. In view of the doctors’ opinions it was considered the appropriate time to commence the process of Ms Wagner’s reintegration into the community.
[3] R v Wagner [2014] SASC 70 at [15] (Kelly J).
[4] R v Wagner [2014] SASC 70 at [15] (Kelly J).
The Judge was concerned about the risk of relapse in the longer term. In this regard the Judge was influenced by the evidence of Dr Raeside:[5]
[5]    R v Wagner [2014] SASC 70 at [21]-[22] (Kelly J).
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 mouth 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.
The Judge formed the view:[6]
The applicant’s risk of relapse, particularly in the longer term, is a concerning aspect of the application …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.
[6] R v Wagner [2014] SASC 70 at [24] (Kelly J).
The Judge was not satisfied that the public safety would be adequately addressed if Ms Wagner was permitted overnight leave to reside at Ashton House. Further she considered it appropriate that Ms Wagner demonstrate continued stability as a resident at Ashton House before there was any contemplation of her having unaccompanied leave in the community.[7] Accordingly, whilst orders were made facilitating steps one and two of the treatment plan, accompanied leave from Ashton House was limited to attending medical appointments and appointments with Correctional Services.
[7] R v Wagner [2014] SASC 70 at [20] (Kelly J).
Ashton House is a “forensic step down facility”. It consists of seven buildings built in close proximity to one another and a short distance from, and outside the secure perimeter fence of, James Nash House. The purpose of Ashton House is to provide a facility that bridges the gap between inpatient forensic services and supported community services.
Over the following year (2014-2015) Ms Wagner continued to progress to the satisfaction of her treating psychiatrists. She then applied to further vary her supervision order to allow her to continue to attend Ashton House but with the addition of staying overnight on leave from James Nash House. Overnight leave was to be gradual and monitored. If Ms Wagner progressed successfully the number of nights per week on which she stayed in Ashton House would increase. The variation sought was an order that not only facilitated this gradual transition to Ashton House but also permitted her discharge to Ashton House from James Nash House if all went well. Further, she applied for an order entitling her to take unaccompanied leave in the community when sufficiently advanced in her rehabilitation.[8] The Judge who heard the application observed:[9]
The purpose of permitting a patient to reside at Ashton House is to transition the patient from a fully-secure monitored facility, such as James Nash House, to a facility where the applicant lives in an independent unit and is required to develop skills towards independent living. At Ashton House there is a hub where patients can speak to other residents, consult with members of the staff, and undertake various rehabilitative programs.
Dr Brereton gave evidence of the applicant’s history of compliance with previous licence conditions. She has complied with all the requirements regarding her medication. She understands the need to maintain taking her medication regularly, as prescribed. Further, she understands the dangers that would result from her failing to take her medication, and the risk of her becoming mentally disordered if she fails to do so.
Dr Brereton is of the opinion that the applicant’s mental health is robust in terms of risk of relapse of psychosis. He observed that during the time the applicant was at Ashton House, she has shown the ability to constructively occupy her time. He is confident that her recovery and progress towards rehabilitation is excellent. He said that her mental health has remained stable, and that there has been no concern about the return of psychotic symptoms. He said that there has been no evidence of any mood disorder. The applicant engages well with staff. She is open and honest, and she regularly engages in group activities.
Dr Brereton gave evidence that the applicant has engaged in constructive work in therapy with psychiatrists. Her medication regime has stayed the same. She understands that she must maintain that regime, and in particular, continue to take clozapine, which is the main anti-psychotic medication she is required to take. In all respects, the applicant’s progress towards rehabilitation is excellent.
Dr Nambiar supported the application. He gave evidence that the applicant has progressed well. He agrees with Dr Brereton’s diagnosis and opinions as to the applicant’s progress.
Dr Raeside did not give evidence, but provided a report dated 16 February 2015 in which he expressed the opinion that the applicant is currently well, that she has benefited so far from the rehabilitation that she has undertaken, and would benefit from further rehabilitation efforts. He supported an order which would permit her to progress to Stages 3 and 4 of the transition program. He regarded her risk of harm to others and herself as low at present.
[8] R v Wagner [2015] SASC 6 (Sulan J).
[9] R v Wagner [2015] SASC 65 at [13]-[18] (Sulan J).
The application was granted facilitating the completion of stage two of the reintegration plan and the commencement and completion of stages three and four, save that unaccompanied leave from Ashton House was not permitted.
The Judge reasoned:[10]
In arriving at my decision, I considered the safety and risk to the community of relaxing the conditions of the licence. I acknowledge that there is always a risk, but I accept the evidence of Drs Brereton, Nambiar and Raeside that the applicant has demonstrated that, providing she maintains her medication regime, she is of a minor risk of further offending, or of harm to herself.
One of the objects of the legislation is to ensure that persons who have committed offences, when mentally incapacitated, can be returned to the community in a timely fashion, provided their mental illness can be adequately managed, and that their safety and the safety of the community can be assured.
I am satisfied that the applicant has completed the milestones so far set for her. She has progressed successfully towards her rehabilitation to date. She has exhibited a sense of responsibility and understanding of her illness, to the point that I am satisfied that she could be permitted to progress further with the process of eventually returning to the community.
Dr Brereton is of the view that it will take at least 12 months before the point is reached when he would recommend that the applicant be permitted to leave Ashton House into the community unaccompanied, and unsupervised. It will take at least two years before she is in a position to be released from Ashton House to live in the community.
In my view, it is desirable that the Court continue to monitor the applicant’s progress and that, before she be permitted to leave Ashton House during the day unaccompanied, there be a further assessment as to her progress. A further application to the Court, would, therefore, be required before that course could be permitted. Another application will be required before she can eventually be released from Ashton House to live independently in the community.
[10] R v Wagner [2015] SASC 65 at [21] (Sulan J).
Just under one year later, in July 2016, the supervision order was again varied to permit the applicant to be absent from Ashton House for periods of accompanied and unaccompanied day leave, at the discretion of the Director of Forensic Mental Health or his nominee.[11]
[11] Order of the Honourable Justice Peek made on 18 July 2016.
Though it does not appear that the Director of Public Prosecutions opposed any of the applications for the variation of the supervision order, some members of the victim’s family expressed and have continued to express their dismay at the speed with which the transitional phase for Ms Wagner’s reintegration into the community has progressed, at Ms Wagner’s lack of remorse for her offending, and of their fear for their safety if Ms Wagner is released into the community without adequate means to detect any relapse in her mental health.
It should be noted that Ms Wagner has expressed remorse for her actions to Drs Nambiar and Brereton.
Under the current terms of Ms Wagner’s supervision order she is required to detail any leave arranged from Ashton House in an activity plan prepared each week and emailed to a nominated South Australia Police liaison officer. She is also subject to conditions that enable her treating team to monitor her compliance with prescribed medication and to check that she abstains from illicit substances. The conditions of her supervision order include:
(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.
…
(k)     That the applicant shall submit herself for breath and/or urine testing as directed by her Community Corrections Officer 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.
Further the supervision order as it currently stands prohibits Ms Wagner from being discharged from Ashton House without further order of this Court.
The present applications
As mentioned, by her written applications dated 15 and 17 December 2017 (the applications) Ms Wagner seeks the further variation of her supervision order to permit her unaccompanied overnight leave from Ashton House so that she might stay at Mr Hull’s premises as part of the next stage of her transition to eventual release into the community. It is anticipated that unaccompanied overnight leave would be increased in frequency overtime to the point where, all going well, Ms Wagner may be discharged from Ashton House. Thus the order sought allows for the Director of the Forensic Mental Health Service to control the frequency of overnight unaccompanied leave with a view to his or her determining at the appropriate time to discharge Ms Wagner from Ashton House. Ms Wagner has also applied to reduce the frequency of drug and alcohol screening of her urine from once per week to a minimum of once per month.
At the hearing of the application Ms Wagner, through her counsel, sought further the removal of the condition requiring that an activity plan be provided to the South Australia Police. If Ms Wagner is required by this Court to continue to prepare an activity plan, she did not oppose the content of the plan being reduced to contain only attendances at public events.
I turn to consider the evidence provided in support of the applications.
Materials received
The Court received the following:
·Report of Dr Brereton, dated 9 May 2018;
·Report of Dr Ferris, dated 9 May 2018;
·Annual Report of Dr Smith, dated 8 January 2018;
·Letter from Mr Kerin, dated 27 June 2018;
·Affidavit of Mr Jason Lee Hull, sworn 24 May 2018;
·Victim and Next of Kin Counselling Report, dated 15 January 2018;
·Report of Dr Nambiar, dated 27 November 2013; and
·Report of Dr Brereton, dated 26 November 2013.
The Court also received a number of police incident reports. In each of these Mr Hull was identified as the victim of certain criminal offences. These reports are of no assistance and I have put them aside.
As is evident from the background to the applications set out above, I have also had regard to materials referred to in the reasons of Nyland J, Kelly J and Sulan J in earlier applications to this Court.
Current psychiatric evidence
Under s 269T(2)(a) CLCA this Court is prohibited from significantly reducing the degree of supervision to which an applicant such as Ms Wagner is subject unless the Court has considered a report prepared by a psychiatrist or other appropriate expert who has personally examined and reported on the mental condition of the applicant and the possible effects of the proposed action on the behaviour of the applicant. The reports of Drs Brereton and Ferris were provided for this purpose. Dr Smith’s report was provided for the purposes of s 269T(2)(b) CLCA.
Dr Brereton is a forensic psychiatrist with the Forensic Mental Health Service. He first assessed Ms Wagner for the purposes of the inquiry into her mental competence to commit the murder with which she was charged on 6 July 2010. Subsequently he was her treating psychiatrist between September 2011 and April 2012 and again upon her discharge to Ashton House.
In his latest report Dr Brereton supports the variation of Ms Wagner’s supervision order to permit her unaccompanied overnight leave from Ashton House so that she can stay with Mr Hull with, as mentioned, the eventual aim of her discharge. He recommended that Ms Wagner commence overnight leave by initially spending one night per week at Mr Hull’s house with the frequency of overnight leave increasing at a rate of no more than one additional night per week each month until she is spending five nights a week at Mr Hull’s house. In his report he states:
At this point the treating team would ensure that all the community supports were in place, i.e. Community Mental Health Team and care coordinator, outpatient psychiatric appointments with the Community Mental Health Team, regular attendance at a community Clozapine clinic, some oversight from the Forensic Community Mental Health Team, ongoing NGO support and follow-up from a local GP. In addition, the team would ensure Ms Wagner were proving able to maintain her community activities and was having no difficulties living independently with Jason. Once the team was satisfied that all supports were established in the community, we would discharge Ms Wagner to reside fulltime with Jason.
As to the current state of Ms Wagner’s mental health, in the 2018 Annual Report prepared by Dr Smith, an advanced trainee forensic psychiatrist, it is stated that Ms Wagner continues to remain stable. Further, that Ms Wagner has demonstrated an extremely good response to Clozapine, and her illness remains in remission. Dr Smith refers to a second opinion provided by Dr Nambiar in October 2017 which also concluded that Ms Wagner’s mental state was stable with the absence of any residual psychotic symptoms.
Dr Smith records that Ms Wagner possesses a very good level of insight into her diagnosis and understands the need for medication long-term.

Dr Smith’s observations and opinions as recorded above are consistent with those of Dr Brereton who in his most recent report records:
After being granted access to unaccompanied leave, Ms Wagner undertook a program of gradually increasing unaccompanied leaves starting with short local trips and expanding over time to spending time further afield, having longer periods on leave and eventually undertaking (as described below) voluntary employment.
Throughout her program of unaccompanied leave Ms Wagner has been entirely compliant with the conditions of her Supervision Order as well as with Ashton House protocols, including maintaining regular contact with staff.
Broadly speaking, Ms Wagner has progressed well. As well as being cooperative with her leave program, she has been engaged with all aspects of her rehabilitation, e.g. she attends all groups and therapy that are asked of her. It is of note that she has a particularly good rapport and relationship with staff and patients alike. She is well respected by her peers and is nurturing and supportive of individuals who may be less functional than her. There have been no maladaptive traits to her personality observed and no behaviour indicative of risk such as aggression or irritability.
Ms Wagner’s mental state has remained stable with no psychotic symptoms or symptoms of a mood disorder evident. Ms Wagner is now autonomous in taking her medication - subject to random checks. There have been no concerns about her compliance. The random checks have all been unremarkable. Her Clozapine levels have indicated compliance and Ms Wagner herself has consistently shown good levels of insight regarding her illness and medication and articulates very clearly why she intends to remain compliant.
It is important to note that Ms Wagner has consistently tested negative to drug screens and no clinical reason to suspect substance abuse has ever arisen.
Dr Brereton noted that historically the only concern clinically has been Ms Wagner’s apparent difficulty in recognising and reflecting on her own emotions and an associated difficulty appreciating what emotional challenges she may face in the future. He does not consider that this has a significant detrimental effect on her risk of harm to others and is a subtle clinical finding. He remarks that in recent months Ms Wagner had shown an increased ability to reflect on her feelings and stressors. In response to her treating team’s concern that she make plans and undertake activities that would persist long term, Ms Wagner has, over the last six months, made considerable efforts to increase her fitness and find paid employment. Dr Brereton noted that these and similar activities were important to mitigate the potential risk of her having too little routine and structure in her daily life such that she becomes socially isolated and lacks motivation which would increase the risk of functional deterioration and relapse.
Dr Brereton notes:
In Ashton House, Ms Wagner has participated fully in the rehabilitation program. She has seen the psychologist in Ashton House, attended regular medical appointments and undertaken a range of groups including alcohol and drugs, healthy living, social skills, managing mental health and an IT course. In addition, Ms Wagner has led a cooking class to assist her peers. She has coordinated some charity events in Ashton House and she is always the first to volunteer to undertake tasks around Ashton House, such as helping with the gardening.
Outside of Ashton House Ms Wagner has undertaken further drug and alcohol work, exercise programs and computer workshops. She has attended some activities with Skylight (formerly the Mental Illness Fellowship of South Australia).
Ms Wagner has developed an interest in, and consistently attended, a regular quilting group and photography group – interests which she would like to pursue in the long-term. Ms Wagner has done well with her photography; she has exhibited in some exhibitions, sold two photos and Neami [a non-government community mental health service] asked her to act as photographer for one of their events for which she was paid.
A particular achievement of Ms Wagner’s has been to find regular voluntary employment. She has always expressed a desire to work, and finding paid employment remains a long-term goal, but she has had to overcome the practical and personal difficulties inherent in police checks and disclosing her record. Around December 2017, Ms Wagner began voluntary work with Second Chances SA, a Christian non-profit organisation supporting individuals with a criminal history. Ms Wagner has been working two full days a week. She has had no difficulty with her attendance. She has been given a variety of different duties and has performed well. Early in 2018, Ms Wagner began to look for paid work. She has made a number of applications but not been successful to date. Ms Wagner has responded well to a return to work, which has helped with her sense of motivation and self-esteem.
Dr Brereton was of the opinion that if Ms Wagner’s supervision order was varied to permit her unaccompanied overnight leave her mental health would remain stable. Further, he anticipated that she would continue to cooperate with follow-up from Mental Health Services and Correctional Services. Lastly, he considered that the risk that Ms Wagner might harm others would remain low.
In the closing paragraphs of his report Dr Brereton also suggested that Ms Wagner’s supervision order be varied to remove the requirement that she prepare a weekly activity plan detailing proposed leave. Dr Brereton considered that such task did not reflect the conditions under which Ms Wagner would be living when in the community where she would enjoy increasing autonomy. He explained that before a patient is discharged from Ashton House the Forensic Mental Health Service tries to approximate the conditions under which the patient will be living in the community, including patient autonomy. Any activity plan conforms to a planned regime inconsistent with the variability of daily living. Allowing a patient flexibility is important in that it approximates more closely to living in the community and thus better prepares the patient for doing so. Dr Brereton added that he did not think the planner necessary to manage the risk Ms Wagner posed, but conceded that the police considered receipt of activity plan useful for intelligence purposes.
As to Ms Wagner’s relationship with Mr Hull and his prior use of cannabis, Dr Brereton remarked:
For years now, Ms Wagner has consistently reported she wishes to return to live with her partner, Jason. The team in Ashton House have had ample opportunity to observe their relationship and there have been no concerns. Ms Wagner and Jason have a loving, mutually supportive relationship and the periods of leave Ms Wagner has taken to Jason’s house have all gone well. She has helped him to tidy the house, improve the garden and, over Christmas 2017, they adopted a rescue cat. While Jason also has a diagnosis of Schizophrenia, his mental state has been stable throughout the time he has had contact with Ashton House. He receives a depot injection of antipsychotic medication and follow-up in an outpatient clinic. His main social outlet/activity is time with his brother and a lot of involvement with his local cricket club. Jason has always worked well with Ms Wagner’s treating team. He is open and straightforward. He has readily signed consent forms to release information about his own mental health and treatment to us. He has been supportive of the decisions of the treating team and has never, for example, undermined decisions, pushed for more leave, earlier discharge, et cetera. In early 2017, Jason attended Ashton House and undertook some joint psychology sessions with Ms Wagner aimed at ensuring both Ms Wagner and Jason understood each other’s early warning signs and how to respond. Both showed good insight. Both Ms Wagner and Jason have a history of smoking cannabis. Jason last smoked cannabis in 2013. In discussion with us, he has shown good insight into the need to remain abstinent, both for his own mental health but also because of the repercussions it may have for Ms Wagner.
In interview with Dr Brereton Ms Wagner was able to identify Mr Hull’s symptoms when presenting as unwell. Dr Brereton notes that in the past she has contacted Mental Health Services for assistance for Mr Hull. Noting that discharge of Ms Wagner from Ashton House to reside at Mr Hull’s residence would place Ms Wagner in the same social set up as prior to the offending, Dr Brereton commented that there are now notable differences in the personal circumstances of Ms Wagner and Mr Hull.
…both were unstable at the time but have now had periods of mental stability lasting years; both show good insight and compliance with medication; both are now abstinent of drugs of abuse and understand the importance of this; Ms Wagner would be under greater supervision from Mental Health and Corrections. It is also of note that Jason has shown a willingness in the past to phone Mental Health Services to express concern about Ms Wagner, even against her will, and that he did so prior to the offence.
In expressing his support for the application Dr Brereton notes that the applicant has already spent a considerable period of time on leave to Mr Hull’s house.
Dr Ferris is a forensic consultant psychiatrist at James Nash House. Dr Ferris interviewed Ms Wagner on 13 March 2018 and after the doctor had reviewed Ms Wagner’s past medical history and discussed her treatment and response to treatment with Dr Brereton. Dr Ferris recorded a medical history and psychiatric history for Ms Wagner largely the same as Dr Brereton. One additional piece of information was the fact that Ms Wagner was adamant that she would not return to using cannabis, had been attending Marijuana Anonymous and was keen to continue doing so upon her discharge from Ashton House. Dr Ferris also recorded:
We spoke about the ongoing chronic conflict with her family. She stated that her sister, Michelle, continued to adamantly oppose her release and that she felt that she was best to deal with this independently through her lawyer. She spoke about feeling somewhat upset hearing that her sister had been unwell, but she stated that she understood why this had not been conveyed to her given their estrangement since the index offence.
Overall, she presented as calm, pleasant, polite, reactive and appropriate. She was extremely well groomed and was an excellent historian. She spoke with normal rate, tone and flow with no evidence of pressured speech, anxiety or mood disturbance. There was absolutely no evidence of any psychotic symptoms and in fact it seems that she has been in remission of psychotic symptoms for many years now. Her insight was excellent regarding her ongoing need for mental health follow-up and abstinence from illicit substances and rapport was easily established.
After referring to Ms Wagner’s past diagnoses of suffering chronic schizoaffective disorder and marijuana dependence, both of which were currently in remission, Dr Ferris noted that Ms Wagner had been free of psychotic symptoms for at least four years. She then concluded her report stating:
After discussion with her long-term treating psychiatrist, Dr Brereton, it is my opinion that Ms Wagner would benefit from a variation to her licence conditions to allow for a slow step down transition from Ashton House to her longer-term management in the community.
I am in support for her having a transitionary program allowing her overnight leave in the first instance to her partner Jason’s house, together with periods of unaccompanied leave to attend groups in the community. This would slowly increase in number over time to allow for increased periods of time away from Ashton House. I can find no evidence of current psychiatric symptoms that would limit her ability to abide by this plan and I feel that there is a very low risk of deterioration in her mental state with such a transition plan.
Given her current insight, engagement with mental health services and stability on her antipsychotic medication, I do not feel that by increasing her leave from Ashton House that there would be any significant increase in her risk of recidivism or reoffending. I am confident that she will comply with all treatment, rehabilitation and licence conditions.
Victim and Next of Kin Counselling Report
As mentioned the Court received a Victim and Next of Kin Counselling Report dated 15 January 2018 in which the views of Mrs Brown’s daughter and Ms Wagner’s sister, Ms Chamberlain, are recorded. Ms Chamberlain was represented at the hearing and her counsel provided further written submissions by letter dated 27 June 2018. Mrs Brown’s husband, Ms Wagner’s father, is now deceased.
Ms Chamberlain expressed her fear for own safety and the safety of her family if the conditions attached to Ms Wagner’s supervision order were further relaxed. She is concerned that Ms Wagner may wish to harm her. She believes Ms Wagner lacks remorse for the offending and notes through her counsel Dr Brereton’s concerns in the past that Ms Wagner has had difficulty recognizing and reflecting on her own emotions.
Ms Chamberlain strongly opposed the application and in particular any variation of the conditions of Ms Wagner’s release on licence that permit Ms Wagner to reside with Mr Hull. She is concerned that permitting Ms Wagner to reside with Mr Hull will have an adverse impact upon Ms Wagner’s rehabilitation. Ms Chamberlain points to the fact that Mr Hull suffers from a mental illness and does not have important protective factors, including employment, around which to structure his day to day life.
Further, Ms Chamberlain felt a degree of protection was provided to her and her family by the geographical restrictions that form part of Ms Wagner’s present supervision order and expressed the wish that these conditions remain unchanged. Through her counsel Ms Chamberlain noted that although she does not receive Ms Wagner’s activity plan personally she is comforted by the knowledge that the police know where Ms Wagner is at all times. Further, if there is to be a variation to the requirement that Ms Wagner provide an activity plan, at a minimum Ms Wagner should be required to provide notice of any public events she plans to attend where she might come into contact with Ms Chamberlain or members of Ms Chamberlain’s family.
Lastly Ms Chamberlain said that she did not feel that her views in respect of each application to vary the supervision order had been heard by the Court. Each time she is contacted regarding an application to vary Ms Wagner’s supervision order she feels that the Court is “going through the motions” before granting her sister greater freedom. She does not consider that 7.5 years in detention for killing their mother is enough and is frightened by the prospect of Ms Wagner’s release into the community.
Noting that he had spoken with the victim’s family about the number of competing considerations to be weighed by this Court, counsel for the victim’s next of kin nonetheless reiterated that the application was opposed. If contrary to the victim’s family’s views, a variation is granted, it was submitted that the victim’s family would not want to see Ms Wagner discharged from Ashton House to reside with Mr Hull at the end a short six month transition. A very cautious approach was to be preferred.
Mr Hull
When interviewed for the purpose of the preparation of the Victim and Next of Kin Counselling Report, Mr Hull stated that he was extremely supportive of Ms Wagner’s application and was looking forward to overnight leave being granted to her so that she could stay with him. Mr Hull referred to Ms Wagner’s mental health as being stable “for a few years now” and that he could see that her medication was helping her.
In support of Ms Wagner’s application Mr Hull swore an affidavit which was received by the Court. No application to cross-examine Mr Hull on the content of his affidavit was made. In his affidavit Mr Hull deposes that he was in a relationship with Ms Wagner for three years and eight months prior to her killing her mother and has remained in a relationship with her since. He discloses that he too suffers from schizoaffective disorder and attends at the Northern Community Mental Health Depot clinic to receive a depot injection fortnightly. His last psychiatric admission was in 2010. He was in hospital at the time Ms Wagner killed her mother. Importantly, before his own admission in 2010 he had contacted Mental Health Services because he was concerned for Ms Wagner’s mental health. He states that he would not hesitate to do so again.
I assume that like Ms Wagner, Mr Hull is in receipt of a disability pension. In his affidavit he informed the Court of how he generally spends his time. Mr Hull confirmed that he is not employed but engages in a number of community based activities. He plays football on Saturday mornings for a local football club, if required, and records statistics for another club on Saturday afternoons. In summer he plays cricket every Saturday for a local club as well as some Sundays. He has training for either football or cricket usually on Thursday nights. On weekdays he is generally at home attending to household duties, playing with his cat and watching TV. If he is not at home he is out shopping for groceries. Once a month he visits friends for dinner or cooks an evening meal for them. His brother visits once every one or two weeks during the day and some times stays over night.
Mr Hull brings his affidavit to an end advising the Court that he has not used cannabis for four years. He ceased using the drug so that he could support Ms Wagner and so that she could come and visit him. He also understands that cannabis use is not good for his mental health. Before he gave up he would smoke cannabis daily. He does not use any illicit substances whatsoever and drinks on average one beer a fortnight.
Exhibited to Mr Hull’s affidavit was a copy of his offender history. He has not been in trouble since 1997. His offending prior to that time is minor, infrequent and of no relevance in determining this application.
Submissions
The Director of Public Prosecutions supported a cautious approach to Ms Wagner’s continued transition into the community. Counsel submitted that the application to vary the supervision order to authorise overnight unescorted leave from Ashton House initially gradually increasing was a reasonably cautious approach. As to the proposed residence with Mr Hull, counsel noted that there is no way of drug testing Mr Hull to verify the self-reports that he does not use cannabis. However, as mentioned, the Director did not seek to cross-examine Mr Hull.
The Director opposed any variation reducing the regularity of drug and alcohol screening. In particular it was submitted that a reduction in testing to a minimum of once per month rather than a minimum of once per week was too fast a transition, noting the seriousness of the offending and the link between Ms Wagner’s use of cannabis and the psychiatric episode during which she killed her mother.
Counsel for Ms Wagner noted that Ms Wagner had never returned a positive drug test nor breached the terms of her supervision order. She submitted that any condition that required testing at a minimum of once per month did not mean that the testing would necessarily only occur once per month. It was counsel’s understanding that Ashton House subjected their residents to testing after any overnight leave.
Counsel for the Director did not oppose the removal of the condition requiring Ms Wagner to provide police with an activity plan. The activity plan was not provided to Ms Chamberlain or any other victim and there was no indication that police required it. Counsel noted that any breach of the supervision order can be detected quickly by Ashton House staff and the Director and SAPOL notified. An activity plan did not assist in this regard.

Counsel for Ms Wagner echoed Dr Brereton’s observations that the provision of an activity plan considerably impairs flexibility in Ms Wagner’s daily life. In written submissions provided following the hearing Ms Wagner did not oppose a condition requiring her to prepare a plan on a fortnightly basis limited to identifying proposed attendances at major public events.
Counsel for the Director and counsel for the victim’s next of kin opposed Ms Wagner’s discharge from Ashton House without further application to this Court.
As for concerns at Ms Wagner being permitted overnight unaccompanied leave with Mr Hull and the submission that Ms Wagner was returning to the same environment and circumstances as were in existence at the time of Mrs Brown’s death, counsel for Ms Wagner contended, in effect, that much had changed. Ms Wagner was in remission and had long been in remission. She now had good insight into her mental health and the need to remain medication compliant. Both she and Mr Hull had abstained from cannabis use for years now and intended to remain abstinent. Whatever one made of Mr Hull’s daily or weekly routine, it had not caused him to return to cannabis use. Further, Ms Wagner’s own routine provided a measure of protection in that she was busy. That routine was said to be as follows:
a.   Monday: Depart Ashton House at 7.30am, catch a bus to and from voluntary work, arriving at Ashton House at 5.30pm.
b.   Tuesday: Attend at the Department for Correctional Services, grocery shopping, collect medication from the pharmacy, participate in whatever group session Ashton House is running that day. (Currently the Mind Smart Recovery group from 9.00am until 12.00pm.)
c.   Wednesday: Depart Ashton House at 7.30am, catch a bus to and from voluntary work, arriving at Ashton House at 5.30pm.
d.   Thursday: Leave Ashton House at 8.00am, arrive at proposed residence at approximately 10.00am. Collected by Neami worker 12.15pm. Attend quilting group, returning to Ashton House at approximately 3.30pm.
e.   Friday: Leave Ashton House at approximately 9.15am with Neami worker, attend photography group between 10.00am and 12.30pm. Once per fortnight: transport by Neami from photography to Multiple Solutions Employment Agency for an appointment from 1.00pm until 2.30pm, returning by bus to Ashton House by approximately 4.00pm.
f.    Saturday: Leave Ashton House at 9.00am. Spend the day out with female friends. Return to Ashton House by 5.00pm.
g.   Sunday: Leave Ashton House 9.00am, spend the day at proposed residence with partner, returning to Ashton House by 5.00pm.
In all the circumstances, it was appropriate it was submitted to vary the supervision order to allow Ms Wagner unaccompanied overnight leave increasing from one night per week to five nights per week in accordance with Dr Brereton’s recommendations.
Consideration
Ms Wagner was found not guilty of the murder of her mother on the grounds that she was mentally incompetent. The consequence of that conclusion is that she is not a convicted murderer and is not to be punished as a convicted murderer. In fact she is not to be punished at all. Rather the regime provided for in Part 8A of the CLCA focuses upon her detention in custody for the purposes of treatment, and, all going well, does so with a view to her being released into the community. Detention initially, but ultimately, effective treatment, is the means by which the community protects itself from any possible future risk that Ms Wagner poses. For some, particularly victims, it is difficult to accept that the mentally incompetent offender is not punished for the crime with which they were charged. And it is hard to standby silently as the mentally incompetent offender recovers their health and with it progressively their liberty without the offender, seemingly, suffering any consequence for their actions. But as a community it has been determined through the Parliament that we do not punish those whose offending is the product of mental illness. That is not to ignore the victim. The attitude of the victim to any significant variation of a suppression order must be taken into account.
Section 269T(1) and (2) CLCA provide:
269T—Matters to which court is to have regard
(1)     In deciding proceedings under this Subdivision, 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 Subdivision, or significantly reduce the degree of supervision to which a defendant is subject unless the court—
(a)has considered a report (an expert report) prepared by a 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 Subdivision; and
(ba)is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release; and
(c)has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; 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.
Mrs Brown’s death makes plain that the nature of Ms Wagner’s mental illness is such that if she does not receive ongoing effective treatment she has the capacity to deteriorate to the point where she is capable of extreme violence having grave consequences. Whilst she is in remission and has been in remission for some time, her illness and her capacity to deteriorate and to engage in extreme violence endure.
The likelihood of Ms Wagner endangering another person in the future hinges on her continued compliance with her treatment regime. In this regard the likelihood of her relapsing is reduced by the insight she now possesses into her illness and into the need to remain medication compliant long term. It is also reduced by her possessing “no maladaptive traits to her personality” and no tendency to aggression or irritability. Further, her commitment to remaining mentally healthy and healthy more generally can be gleaned from the extent to which she has embraced all facets of the treatment regime instituted by the Forensic Mental Health Service at all times. This includes her development of a routine and structure in her daily life that prevents her becoming socially isolated and fortifies her in dealing with the stresses of life that from time to time impact upon a person.
As recorded above, both Drs Brereton and Ferris support the current application. They consider the risk Ms Wagner poses to the safety of the community, if the variations to the supervision order sought are made, to be low. Based on Ms Wagner’s degree of compliance with her treatment regime to date and the success of her reintegration so far, that confidence is well founded.
There is no suggestion that the resources necessary to give effect to the next stage of Ms Wagner’s transition are not available.
The gradual process of Ms Wagner’s reintegration into the community is defined by her gradual exposure to stresses with which it is hoped she will cope without assistance and without relapsing by remaining compliant with her medication, by surrounding herself with protective structures and influences, and by deploying coping strategies that she has acquired. Again, to date, she has acquitted herself extremely well. The next step introduces, however, the stresses involved in living with another person and being in a relationship with that person. The medical professionals are aware of this, hence they have engaged with and included Mr Hull as part of Ms Wagner’s treatment. He, in turn, has responded. He is to be commended for the support he has provided to Ms Wagner, his cooperation with the mental health professionals at Ashton House, and for his own efforts in adjusting his way of life to reduce the risk of his and Ms Wagner’s relapse.
I admire the fact that through everything that has occurred since May 2010, Ms Wagner and Mr Hull have managed to remain committed to one another. I am comforted by Mr Hull’s attitude toward working with the Forensic Mental Health team in order to gain their trust, to assist Ms Wagner, and to continue to pursue their relationship. As Ms Wagner transitions toward returning to her life with Mr Hull the institutional factors that protect her from relapsing are necessarily wound back. Despite this the regime implemented within the framework of the supervision order allows for many opportunities to detect possible relapse. In this connection I understand that any relapse is not something that would occur overnight, but would be more delayed in progression. Within the contemplated time frame Ms Wagner would likely have contact with her Community Corrections Officer or the unit at Ashton House. It is also possible that she will have undergone blood analysis or urinalysis and any non-compliance with her medication or use of illicit substances be detected. Then, of course, there is the vigilance of Mr Hull. All this in a context where Ms Wagner is in remission, has not had a psychotic episode nor auditory hallucinations for some time, has always been medication compliant, has good insight into her illness, has completed all courses asked of her and fully co-operated with the Forensic Mental Health Service, and has never returned a positive test for illicit substances. Further, Ms Wagner has begun to establish for herself interests in the community that she wishes to pursue.
Still the stresses of living with another person after eight years of not doing so will require adjustment on both Ms Wagner’s and Mr Hull’s part, and possibly significantly so. Compromise is necessary and individual routines may be expected to change. I assume the anticipated adjustment underpins the recommendation that unaccompanied overnight leave start at one night per week and be gradually increased. I agree with that approach. I do not, however, think that this Court should, in effect, delegate its responsibility for supervising Ms Wagner’s reintegration to her treating doctors to the extent that the applications permit. There is no real evidence as to how Ms Wagner and Mr Hull will fair when they resume cohabiting. I accept that the relationship will undoubtedly play an important role in the next phase of Ms Wagner’s rehabilitation. Though she has established a number of hobbies and acquired skills and supports in the community, there is no doubt that her motivation and commitment to them will be impacted by residing with Mr Hull. Her daily activities will also be affected by the choices that Mr Hull makes. For this reason I consider that unaccompanied overnight leave should not exceed two nights per week over the next four months at the conclusion of which the Court should further consider the application in the light of being updated by Dr Brereton and Dr Ferris of Ms Wagner’s progress. Consistent with this I consider that Ms Wagner should not be discharged from Ashton House without further application being made.
In arriving at this conclusion I bear in mind not only the potential for relapse and the attendant risk, but the attitude of Ms Chamberlain. In my view the real fear felt by Ms Chamberlain and most likely others, and Ms Wagner’s potential to engage in extreme violence if unwell, not only justifies, but warrants, that this Court approach the applications cautiously.
I accept Dr Brereton’s remarks that the activity plan provides an unnecessarily high degree of rigidity to Ms Wagner’s daily life where there is no evidence that a high degree of structure is necessary for her rehabilitation and which does not approximate to ordinary life in the community. That said, Ms Chamberlain has indicated that she and others would be comforted by the knowledge that the police have the plan. I consider that Ms Wagner should continue to provide an activity plan, however, it is sufficient that it be prepared and provided fortnightly. Furthermore, it is enough that it only record public events that Ms Wagner intends to attend. This requirement, coupled with the prohibition on certain localities that Ms Wagner may attend, should go some way to avoiding the likelihood of her meeting any of victim’s family in the community unexpectedly.
Blood testing and/or urinalysis is an important means by which those responsible for Ms Wagner’s care can ensure that she takes her medication and does not take any other substance that may be deleterious to her mental health. I agree with Ms Chamberlain that it is important that this means of checking on Ms Wagner’s health must remain a condition of her supervision order and that such testing be conducted as frequently as is necessary to ensure compliance. Accordingly, I refuse to reduce the frequency of such testing to a minimum of once per month, but consider that once per fortnight is adequate. However, in addition, and at their discretion, the Director of Forensic Mental Health or Ms Wagner’s Community Corrections Officer may at any time require that Ms Wagner submit to blood testing or urinalysis if either think good reason arises to do so to ensure compliance with the conditions of the supervision order or prevent any risk of breach.
For these reasons I allow the applications in part. I am satisfied on the balance of probabilities that the terms of the order as set out below are apt to protect the safety of the community and any individual member of it.
Order
I order:
1.   That the supervision order made on 18 July 2016 be varied by deleting clauses 2, 3, 3A and 4 and substituting the following:
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 the Director (the nominee), and obey any directions given to her from time to time by the Director or the nominee with regard to medical, psychological and psychiatric treatment and medication.
(b)That the applicant reside as an in-patient at, and remain at, Ashton House.
(c)That the applicant not be discharged from Ashton House without further order from this Court.
(d)Notwithstanding (2)(b), that the applicant be permitted at the discretion of the Director or his nominee periods of accompanied and unaccompanied day and overnight leave away from Ashton House for rehabilitation purposes, as approved by the Director or the nominee PROVIDED THAT overnight leave does not exceed two nights a week and must be for the purpose of the applicant staying overnight with Mr Jason Hull at Mr Hull’s place of residence.
(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 not possess or take 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 legally qualified medical practitioner only be taken in accordance with the instructions of the prescribing legally qualified medical practitioner.
(g)    That the applicant not consume alcohol.
(h)That the applicant’s case be managed by staff at the Forensic Step-Down Rehabilitation Unit and that the applicant comply with all the lawful directions of that team or any person authorised by that team to give such directions, particularly with respect to attendances at all appointments nominated by that team or the said authorised person.
(i)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.
(j)     That the applicant submit to:
i.screening of her blood as directed by the Director or the nominee to ensure compliance with her prescribed medication;
ii.fortnightly screening of a sample of her breath or urine at the direction of the Director or the nominee or her Community Corrections Officer to ensure that she has not taken alcohol or any illicit substance;
iii.notwithstanding (ii) above screening of her breath, blood or urine as directed by the Director or the nominee or her Community Corrections Officer if any of the Director, the nominee or her Community Corrections Officer consider that good reason has arisen to require such additional screening in order that compliance with this order be assured or so as to prevent any breach.
(k)That the applicant not depart or attempt to depart from the State of South Australia.
(l)That the applicant prepare an activity plan fortnightly detailing her intended attendance at any public event including the location of such event and the time at which it is to be held. Such plan is to be emailed fortnightly to the nominated South Australia Police liaison officer and provided to Ms Chamberlain via her solicitor if Ms Chamberlain requests the same.
Note:
i.A public event is an event held to celebrate achievements or milestones having a public aspect or for the entertainment and enjoyment of the public generally and includes, for example, Australian Football League games, South Australian National Football League games, National Basketball League games, National Soccer League games, National Netball League games, the cricket, the Clipsal 500, WOMADELAIDE, the Fringe Opening Parade, the Theatre, the Opera, ANZAC Day services, the Adelaide Cup, the Christmas Pageant.
iiThe applicant is encouraged, but is not required, to include other outings in the community that she is aware she will be attending, the date and location.
(m)     That the applicant not attend at the following locations:
·Ingle Farm Shopping Centre.
·Tea Tree Plaza Shopping Centre.
·Greenacres Shopping Centre.
·65 Warwick Avenue, Enfield.
(n)That the applicant not contact or approach, either directly or indirectly, the following persons:-
[names withheld]
(o)That the applicant not possess a firearm, ammunition or any part of a firearm.
(p)That the applicant submit to tests, including testing without notice, for gunshot residue.
3.In the event that the Director or the 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 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.
4.If the Director of Public Prosecutions receives notification in accordance with order 2 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.
5.That the applicant, the Director of Public Prosecutions 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 vary or revoke this order or seek any other order in substitution thereof.
2.    That further consideration of the applications dated 15 and 17 December 2017 be adjourned to a date to be fixed such date being no sooner than four months from the date of this order.
3. That Dr Brereton and Dr Ferris, or two such other psychiatrists as the Director of Forensic Mental Health Service directs, report to this Court on the resumption of the adjourned hearing of the applications dated 15 and 17 December 2017 on the success or otherwise of the applicant’s transition to unaccompanied overnight leave as provided for by this order and whether, having regard to the criteria contained in s 269T of the Criminal Law Consolidation Act 1935 (SA), this order should be varied to permit additional unaccompanied overnight leave.
4.    That the reports prepared for the purposes of order 3 immediately above be provided to counsel for Ms Chamberlain.