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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Wagner [No 3]

Details

AGLC: R v Wagner [No 3] [2019] SASC 59
Case: [2019] SASC 59
Decision Date: 12 April 2019

CaseChat Overview and Summary

The case of R v Wagner [No 3] involves the sentencing of the appellant, Wagner, by the Court of Appeal. The dispute pertains to the sentence imposed on Wagner, which included a custodial order and a hospital security order due to his mental health issues. The appeal was brought to the Court of Appeal to review the appropriateness and legality of the sentencing order. The legal issues central to the case revolve around the application and interpretation of the relevant sentencing provisions, particularly in relation to the imposition of custodial orders and hospital security orders. The Court had to determine whether the sentencing order was justified under the circumstances and whether the trial judge had correctly exercised his discretion in imposing such orders.

The Court of Appeal meticulously examined the trial judge's reasoning and the evidence presented at the trial. It considered the severity of the crime, Wagner's mental health condition, and the potential risks to the community if he were not adequately managed. The Court found that the trial judge had not erred in his assessment of the evidence and had appropriately exercised his sentencing discretion. The Court emphasised the importance of considering both the punishment and rehabilitation aspects of sentencing, particularly in cases involving individuals with mental health issues. The appeal was ultimately dismissed, with the Court affirming the sentence imposed by the trial judge.

In conclusion, the Court of Appeal upheld the original sentencing order, affirming that the trial judge had correctly applied the relevant legal principles and exercised his discretion appropriately. The Court of Appeal's decision reinforces the importance of a balanced approach to sentencing that takes into account both punitive and rehabilitative considerations, particularly in cases involving offenders with mental health issues. The final orders of the Court were that the appeal be dismissed, and the original sentence, including the custodial and hospital security orders, be upheld.

Orders