R v Wagner [No 3] - [2019] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WAGNER [NO 3]
[2019] SASC 59
Judgment of The Honourable Justice Hinton
12 April 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
Application to vary the terms of a supervision order and release on licence 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 and declared liable to supervision under Part 8A CLCA. By variations to her licence conditions since then Ms Wagner has been permitted to reside at Ashton House, a forensic step down rehabilitation facility.
On 3 August 2018 this Court varied Ms Wagner’s licence conditions to permit her unaccompanied overnight leave from Ashton House provided such leave did not exceed two nights per week and was for the purpose of Ms Wagner residing at her partner’s residence.
By the present application Ms Wagner sought a further variation of her licence conditions to permit her up to five nights per week unaccompanied overnight leave and for the purpose of residing at her partner’s place of residence.
Held, granting the application in part, the order made on 3 August 2018 is varied to allow Ms Wagner unaccompanied overnight leave at the discretion of the Clinical Director of the Forensic Mental Health Service or his nominee provided that the overnight leave does not exceed three nights per week between the date of this order and 14 June 2019, four nights per week between 15 June 2019 and 31 August 2019, and thereafter five nights per week and, in every instance must be for the purpose of Ms Wagner staying overnight at her partner’s place of residence.
Criminal Law Consolidation Act 1935 (SA) ss 269NI, 269P, 269R(1), 269T(1), 269Z, referred to.
R v Wagner (No 2) [2018] SASC 109, considered.

R v WAGNER [NO 3]
[2019] SASC 59
Criminal
HINTON J:

The history of this matter is set out in my reasons in R v Wagner (No 2).[1] I do not repeat it. These reasons should be understood as incorporating my earlier reasons.
[1] [2018] SASC 109.
Ms Wagner was declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (CLCA) on 7 July 2011. On 3 August 2018 I made orders varying the conditions of the licence pursuant to which Ms Wagner had been released from detention. In short, I varied the licence conditions previously fixed to permit Ms Wagner unaccompanied overnight leave at the discretion of the Clinical Director of the Forensic Mental Health Service or his nominee provided that such leave not exceed two nights per week and only be for the purpose of Ms Wagner staying overnight with her partner, Mr Jason Hull. I made that order on the application of Ms Wagner, dated 15 December 2017, which sought not only unaccompanied overnight leave but release into the community.
In R v Wagner (No 2) I set out the staged treatment plan that has been implemented in relation to Ms Wagner. Although her application sought her release, evidence was only adduced in support of her being permitted unaccompanied overnight leave progressing at the discretion of the Clinical Director for the Forensic Mental Health Service to five nights per week.
On 3 August 2018, in addition to varying Ms Wagner’s licence conditions, I also ordered that further consideration of the 15 December 2017 application be adjourned to a date to be fixed, such date being no sooner than four months from 3 August 2018. Consistent with the latter order, on 29 March 2019 the application was called on before me for further consideration. Ms Wagner maintains her application for her licence conditions to be varied permitting her up to five nights per week unaccompanied overnight leave.
I have been provided with a further report prepared by Ms Wagner’s treating forensic psychiatrist, Dr William Brereton, dated 12 December 2018, a further report from Dr Megan Ferris, a forensic consultant psychiatrist, dated 4 February 2019, and a Victim and Next of Kin Counselling Report prepared by Ms Anna D’Alessandro, a forensic social worker, dated 26 March 2019.
In his report Dr Brereton refers to the next stage of Ms Wagner’s management being to increase her overnight leave from two nights per week to five. This would occur gradually and be dependent on continued good progress. During this period Ms Wagner would be reviewed in Ashton House as well as receive visits at home from the Forensic Community Mental Health Team and Ashton House staff.
Dr Brereton notes that following the orders made on 3 August 2018 Ms Wagner initially commenced staying overnight with Mr Hull one night per week progressing to two as of 4 October 2018. He says that she continues to progress well. Her mental health has remained stable and she displays no psychotic symptoms nor symptoms of a mood disorder. Ms Wagner remains compliant with her antipsychotic medication (clozapine) and is now responsible herself for taking it. She is subject to random testing to ensure compliance. Dr Brereton says that Ms Wagner continues to have good insight into her mental illness and the need for her to take her medication. He notes that unfortunately she has started smoking again. Smoking reduces clozapine blood levels which has led to adjustments in Ms Wagner’s dosage.
Dr Brereton also reports that Ms Wagner continues to attend Corrections regularly. No concerns have been expressed by Corrections and she has continued to test negative when drug screened. She remains cooperative with her leave program and engaged in her rehabilitation. She follows her activity planner and makes contact with Ashton House staff as required. Further, whilst at Ashton House, she continues to engage in group work and contributes well.
Ms Wagner has also maintained her volunteer position at Second Chances where she works two full-day shifts per week and has recently added a Saturday shift to her duties. She has received a lot of positive feedback. Second Chances plans to open a new opshop and has asked Ms Wagner to be joint manager of that shop.
Ms Wagner continues to receive support from Neami and they are pleased with her engagement.
In Ashton House she is reported to continue to enjoy good relationships with her peers. She has moved into a shared unit and gets on well with her new housemate.
As to her relationship with Mr Hull since 3 August 2018, Dr Brereton comments:
Ms Wagner’s relationship with Mr Hull remains the same. They have a strong partnership and are supportive of each other. Mr Hull continues to work well with mental health teams and has continued to sign forms to release his medical records to us. He remains stable in mental state. They spend time together at home. Ms Wagner has been trying to improve Mr Hull’s cooking skills. Mr Hull has started to attend the Digits photography group weekly with Ms Wagner and appears to be enjoying this. Unfortunately Mr Hull’s mother has been diagnosed with cancer, a situation he has understandably found distressing. Ms Wagner has provided him with appropriate support and, although they are both concerned about her, there has been no apparent deterioration in the mental state of either individual.
Since Ms Wagner has been spending more time at Mr Hull’s house, including overnight leaves, the Forensic Community Mental Health Team has been going out to see her. Again, Ms Wagner has worked well with the Forensic Community Team and established a rapport with them. In addition, members of staff from Ashton House visit Ms Wagner from time-to-time at Mr Hull’s house to observe her progress.
Dr Brereton goes on to advise that Ms Wagner has been accepted for follow-up and case management by the Northern Community Mental Health Team which has allocated a care coordinator to her.
Dr Brereton tells of a friendship Ms Wagner enjoyed with a past Ashton House patient. That patient breached their licence conditions by drinking alcohol. Ms Wagner was unaware of this. When Dr Brereton spoke to her about this she showed a good understanding of the risks of associating with someone who may not be a good influence. Dr Brereton reports that Ms Wagner voluntarily distanced herself from her friend and advised that she plans to have no face-to-face contact with that friend for the time being.
In his report Dr Brereton sounds one note of caution:
I have mentioned the reservations I have had about Ms Wagner’s progress in previous reports. Primarily, her difficulty recognising and reflecting on her emotions. She is always cooperative in interviews and will honestly answer any questions put to her, but she does not tend to take the initiative and offer detail regarding her thoughts or concerns. I have never thought she was being evasive or misleading, more that she can struggle to articulate her thoughts and emotions. Her coping style throughout her life has tended to be somewhat avoidant. I have some concern that Ms Wagner is vulnerable, over the long term, of succumbing to negative symptoms of schizophrenia; that is, a degree of social withdrawal, and reduced volition and motivation. At present she guards against this by attending various activities, from work to attending groups, and plans her time with staff in Ashton House. She has been successful in maintaining her levels of activity but it has required a degree of ongoing support and encouragement from staff.
Dr Brereton then proceeds to tell of his interview with Ms Wagner in November 2018. In that interview she advised that initially she spent Thursday nights with Mr Hull and then Thursday and Friday nights with him. She described her nights with Mr Hull as “pretty good”. She said she had quickly settled in with Mr Hull and found it difficult to return to Ashton House. Her routine was as follows:
When asked how she spends her time, Ms Wagner explained that at home she tends the garden and watches TV with Jason (Mr Hull). They go together to Digits photography group on a Friday. Every second Friday she attends Multiple Solutions to review her options for work. She has been applying for approximately four jobs per fortnight, generally in retail. She has had two interviews but no job offer as yet. She feels a degree of disappointment but told me she is not significantly adversely affected. She is happy to spend her time working at Second Chances.
In Second Chances she has a number of roles from customer service and answering phones, to dusting, polishing and helping with refreshments. She likes the work and has been sent on some training courses, which she has enjoyed. She confirmed Second Chances have asked her to undertake a ‘co-manager’ position when they start up a new shop. Ms Wagner works two days a week in Second Chances and in the New Year will begin to work at least one Saturday per month.
Ms Wagner told Dr Brereton that she had no problem with her overnight leave and that it had not adversely affected her relationship with Jason. She reported no symptoms of mood disturbance and had no current concerns. She explained that she takes her medication without fail pursuant to an established routine which Mr Hull will check to ensure that she is compliant. Dr Brereton adds:
… she and Jason continue to smoke cigarettes. They both want to stop, especially since Jason’s mother’s diagnosis. Jason has stayed positive despite his mother’s health. Ms Wagner has been providing him with support. Jason does not smoke cannabis any longer. He rarely drinks any alcohol although he might have a very occasional beer at the cricket. Neither Jason nor Ms Wagner have friends who currently use drugs. Ms Wagner said she has not been offered any substances while on leave. She commented she is not tempted to use substances and has never missed using them.
Dr Brereton was of the opinion that Ms Wagner’s insight into her mental illness and the need for medication and mental health follow-up is good. He concludes his report with the opinion that it was likely Ms Wagner would remain in a stable mental state, would continue to cooperate with follow-up from Mental Health Services and Corrections and that her risk of harm to others would remain low. He considers the measures outlined in the management plan sufficient to provide good monitoring and supervision of her mental state and risk. That plan not only included visits by the Forensic Community Mental Health Team and Ashton House staff but arranging for Ms Wagner to work with a psychologist in the community. In addition there were the supports that she is surrounded by such as those provided by Second Chances, the Forensic Community Mental Health Team, Corrections, Neami and weekly attendances at the Digits photography group. In all this she is monitored and will continue to be monitored by Ashton House. Dr Brereton observes that, importantly, in the long term, the community supports must continue to be in place in order to maintain the gains Ms Wagner has achieved. Dr Brereton advises:
When Ms Wagner begins five nights overnight leave, the team will confirm all arrangements are in place for her long-term management in the community. Corrections will transfer her care to the Elizabeth office. She will be registered with a local GP. Her care will be picked up by the Northern Community Mental Health Team; this will include regular review by her care coordinator (who will begin to visit and establish a rapport in the new year), psychiatric outpatient appointments, and regular attendance at the outpatient Clozapine clinic. The Forensic Community Mental Health Team will also maintain a role by attending clinical reviews, occasional visits with the Community Mental Health Team, and one to two yearly out patient appointments.
Once all follow-up arrangements have been established, and assuming Ms Wagner continues to progress well, she will be in a position to apply to the Court for discharge from Ashton House.
Whilst Dr Brereton’s report is dated 12 December 2018 it contains an addendum note to the effect that he reviewed it on 19 February 2019 and remained of the same opinion.
Turning to Dr Ferris’ report, Dr Ferris’ opinion of Ms Wagner’s current psychiatric state does not differ to that of Dr Brereton. After interviewing Ms Wagner Dr Ferris concluded that there was no evidence of Ms Wagner suffering any psychotic symptoms. Like Dr Brereton, Dr Ferris also refers to Ms Wagner as having excellent insight into her ongoing need for mental health follow-up.
Dr Ferris maintained that in her opinion Ms Wagner suffered from a chronic schizoaffective disorder which was currently in long-term remission. She added, there has been no evidence of acute psychotic symptoms for many years since Ms Wagner commenced taking clozapine and her mental state has remained extremely stable in the community environment. Dr Ferris also notes that Ms Wagner has a past history of marijuana dependence but that too is currently in remission.
In bringing her report to a conclusion Dr Ferris expressed the following opinion:
After discussion with her long-term treating psychiatrist, Dr Brereton, I am in support for a variation to her licence to allow a gradual increase in her overnight leaves to five nights a week, with a long-term aim for eventual primary management in the community.
I am in support of her transition leave program including a slow increase [in] the number of leaves to her partner Jason’s house in a step-wise manner over many months. There is no current evidence of any 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 an increase in overnight leaves.
She presents with excellent insight, excellent engagement with mental health services, and long-term stability of her mental state. I do not feel that there would be any significant increase in her risk of recidivism, or reoffending, if she was to have an increased amount of leave into the community.
Dr Ferris was supportive of the application.
The Victim and Next of Kin Counselling Report provides the Court with the opinions of Mr Hull and Ms Wagner’s sister, Ms Chamberlain, as to the proposed variation of the licence conditions.
Mr Hull is supportive. He expressed the opinion that Ms Wagner was ready for further extended stays at the home they share in the community. In his view she had enough support in place to ensure that she remained well and had no concerns for his safety or that of the community.
Ms Chamberlain was opposed to the application. The report states:
Ms Chamberlain continues to be re-traumatised on every occasion that this matter is brought to the court to vary the supervision order. It has become a continuous cycle with little respite from the process. This has made it difficult for Ms Chamberlain to be able to move on with her life as she has constant reminders of her loss and of the defendant’s request for more freedom via the court. She stated ‘I know I have a voice, and what I say is taken into account but the outcome is already decided. She is granted each application. The system is terrible. Most of the time I do well in life, but then Vicky is part of it. I can never ignore that, I can never forget that. I have to get on with it and then this comes up time and time again and I become stressed, ill and anxious the entire time. Where is the support or help I receive when this happens? The day after Mother’s Day I had to go to court for this, that was tough. On the 8th Anniversary of mum’s death we had to go to court. Then it was almost on mum’s birthday. Now the next date is on my son’s birthday. It does not stop. But I can’t say no to this, I have to do it, I can’t let my mother and my family down. It is not fair and it is not right. I hope she never hurts anyone again.’
Ms Chamberlain remains concerned about the defendant’s application as it is additional nights away from the structured and supervised environment of Ashton House, and does not account for her own feelings, trauma or needs as a victim. Ms Chamberlain understands and appreciates the opportunity to be consulted as a victim, but feels her opinion, views or opposition to the applications have made little difference to the consideration and overall decision made. Ms Chamberlain has observed that the applications are always granted. Ms Chamberlain observed that there is always an answer to all the questions she has ever posed during the s269R process, but that these answers are not solutions to the issues and concerns raised. She is of the view that the defendant should remain under the care of the Forensic Community Mental Health Service, rather than be transferred to Northern Community Mental Health due to the high risk she believes her sister still poses and the historical context of the offence occurring whilst the defendant was under the care of a community mental health team. Ms Chamberlain stated ‘I can’t express my emotions. To us she is not special, she has got away with murder. Vicky blames everything on other people, it is always someone else’s fault. They want to give her 5 nights leave and she killed my mum. What she did was horrendous. It is not about her rehab, this is wrong, it is about my mum who we lost. I loved my mum.’
Counsel for Ms Wagner commenced her submissions by focusing on the one negative aspect of Dr Brereton’s report[2] — Ms Wagner’s insight into her emotions. This appears an aspect of her personality. Any negative affect it may have is, counsel submitted, currently overcome by the support and supervision Ms Wagner receives.
[2] See above at [15].

Next counsel referred to Ms Wagner’s relationship with Mr Hull. Both had adjusted well to her overnight stays. They remain mutually supportive and are both well. Mr Hull’s cooperation with the Forensic Mental Health Service is one manifestation of his support. It also provides comfort to the Court in assessing Ms Wagner’s risk of relapse and risk to the community.
Counsel emphasised the supports in place for Ms Wagner, her response to those supports, her compliance with her medication, and the fact that the transition to five nights unaccompanied overnight leave will be gradual and subject to Ms Wagner’s continued good progress. The order sought allows for adjustment to meet any unforeseen contingencies.
The Director of Public Prosecutions did not oppose the application. Having regard to Ms Chamberlain’s views, counsel for the Director submitted that such comfort as an order might give victims and next of kin was limited largely to conditions controlling Ms Wagner’s movements in the community and avoiding contact, assuming contact was not wanted. The victim’s or next of kin’s attitude was a factor to be taken into account in the exercise of the discretion vested in the Court by s 269P CLCA, it was submitted, but such attitude will not necessarily outweigh the opinions of the mental health professionals.
Counsel for Ms Chamberlain referred to his client’s greatest concern being Ms Wagner’s perceived lack of emotion and, in particular, that Ms Wagner does not understand the depth of the loss and harm that she has caused Ms Chamberlain and the family more widely. Ms Chamberlain urges caution. She is concerned that it now appears that Ms Wagner is caring for Mr Hull rather than him caring for her. Bearing in mind the circumstances in which Ms Wagner killed her mother, this was a further reason to tread cautiously. Continuing in this vein, counsel for Ms Chamberlain referred to Ms Wagner’s cessation of involvement with a quilting course because of media scrutiny. It was suggested that this indicates avoidance of responsibility. Lastly, being practical, Ms Chamberlain accepts that at some point her sister will be permitted greater freedom in the community, but she cautions against the speed with which the Forensic Mental Health Service is moving in that direction. I understood the essential submission to be that absent satisfaction that Ms Wagner accepted responsibility for all she had done, including the wider harm caused to the family, the Court should be cautious in accepting that behavioural change has truly occurred.
Section 269T(1) CLCA provides:
(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.
Ms Wagner has been diagnosed as suffering chronic schizoaffective disorder and marijuana dependence. Both are in remission and have been in remission for some years. The history of Ms Wagner’s treatment indicates that she has responded extremely well to the clozapine, antipsychotic medication prescribed for her. She has regularly been described as possessing good insight into her mental illness and the importance of being medication compliant, which she has been. It is also important to the maintenance of her mental health that there be in place, which there currently are, structures and supports that prevent her becoming isolated and unmotivated giving rise to the risk of relapse.
All the evidence suggests that the current risk that Ms Wagner poses to the community is minimal. I accept that evidence. Of course, her risk remains minimal for so long, and provided that, she remains in remission. That, in turn, demands that she remain medication compliant, that the structures and supports to which reference has been made remain in place and functioning, and that she engage fully with the various support persons and mental health professionals assisting her. Again the evidence establishes this to be the case at the moment.
The transition from James Nash House to Ashton House to the community carries with it the transferral of greater responsibility to Ms Wagner for the maintenance of her mental health. Again she has responded favourably to the process to date. With the transition comes exposure to the stressors of life in the community. These will test her resilience. So far she has coped well with adjusting to participating more fully in Mr Hull’s life and I note his support has been unwavering. I do not overlook, however, the note of caution sounded by Dr Brereton. An avoidant approach to recognising and reflecting on emotions amounts to a vulnerability to relapse. Prevention appears to reside in the structures and supports surrounding Ms Wagner being able to detect any deterioration. At present this may not be a concern, but it provides reason to exercise caution in proceeding quickly to a release date and with it vesting any expectation in Ms Wagner that she will simply be discharged in six or so months’ time. In time she will be responsible for maintaining and committing to the supports and structures that protect her from relapse and the community from the risk she poses in the event of relapse. It is important then that she address the vulnerabilities observed by Dr Brereton with the assistance of the mental health professionals so that, confronted by an emotional stressor in future, she does not simply avoid issues by cutting herself off.
There is no suggestion that the resources are not available to implement the next stage of the management plan for Ms Wagner and there is no present fear that she will not comply with the terms of her licence. The primary fear at present is the one to which I have referred (Ms Wagner confronts a situation where, not working through her emotional response, but rather avoiding it, leads to social withdrawal and reduced volition and motivation). I anticipate, however, that it is this shortcoming that may be worked on with the assistance of a psychologist. To that end I note that Ms Wagner has been referred for private psychology follow-up with ClinPsych. Working with a psychologist on her insight into her emotions and her emotional response to negative stimuli in particular will be important as I have indicated to any ultimate decision to release her.
I return to the Victim and Next of Kin Counselling Report. It is an unfortunate by-product of s 269R(1) CLCA that the victim or next of kin may be re-traumatised by applications such as the present. I acknowledge the personal cost to Ms Chamberlain and her family that the process has. As counsel for the Director pointed out, some assistance may be available under s 269Z CLCA.
The scheme provided for by Part 8A CLCA is not punitive. A person found not guilty by reason of mental impairment, as Ms Wagner was, is not punished. Rather such person is subject of a treatment regime intended, if possible, to restore that person to health and to the community. The restoration of a person found not guilty by reason of mental impairment to health will, ordinarily, carry with it a concomitant reduction in the danger that he or she poses to the community. This follows from the relationship between the mental impairment and the conduct subject of the offence with which the person was charged. But all that said, s 269NI CLCA does not provide that the person found not guilty by reason of mental impairment must be released upon him or her recovering his or her health. The paramount consideration in determining release and/or the conditions of a licence is the safety of the community. The fact that provision is made for release on licence reflects the likelihood that a person will recover their mental health gradually and in doing so will need to be gradually reintroduced to the pressures of living in the community. It also reflects the fact that the recovery and maintenance of a person’s mental health can turn on dealing with situational or external factors. The process of recovery may be long and gradual, with lapses along the way. Conditions conducive to treatment and recovery must be tempered by those necessary to protect the public. The latter, in view of the risk of relapse and the possible consequences, (evident in the past conduct subject of the charge in relation to which the defendant was found not guilty by reason of mental impairment) may be accepted as only receding from trenching upon the individual’s personal freedom to the extent that the person has made lasting gains in the recovery of their health. That is to say, conditions may be expected to promote treatment and recovery but they must also be apt to protect the public from the risk associated with the person’s mental impairment and possible relapse.
In all this it is easy to overlook the victim and next of kin. Their loss and their ongoing suffering are of little relevance to the question of whether, having regard to the progress that a person found not guilty by reason of mental incompetence makes in the recovery of his or her health, that person should be released on licence, and, whether the conditions to be imposed adequately protect the community. Still some work must be given to Parliament’s command that the Court take into account the views of the victim and next of kin. I agree with counsel for the Director that one important function of reports received under s 269R CLCA is to ensure that conditions imposed are sensitive to the predicament of the victim and next of kin. In the present case no alteration to the conditions that constrain Ms Wagner’s movement in the community is proposed. I add, I am grateful for Ms Chamberlain’s assistance and I admire the courage she has shown. I do not overlook the knowledge that she has of her sister’s personality.
In all the circumstances, I remain of the view that the cautious approach that this Court has previously adopted should continue to be followed. I would grant the application but permit the graduation to five nights unaccompanied overnight leave at a slower place. I consider that Ms Wagner should not gain the impression that progressing to five nights unaccompanied overnight leave will provide an automatic ticket to her release. Rather, whilst accepting that the increase in her overnight unaccompanied leave is important to the next stage in her recovery of her health, it should occur in tandem with her addressing the vulnerability to which Dr Brereton referred. Release or the prospect of release should not outpace that work. Accordingly, I would vary the order made on 3 August 2018 to allow Ms Wagner unaccompanied overnight leave at the discretion of the Clinical Director of the Forensic Mental Health Service or his nominee provided that overnight leave does not exceed three nights per week between the date of this order and 14 June 2019, four nights per week between 15 June 2019 and 31 August 2019, and thereafter five nights per week and, in every instance, must be for the purpose of Ms Wagner staying overnight with Mr Hull at his place of residence. Otherwise I dismiss the application.