R v Wasley - [2010] SASC 347

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WASLEY
[2010] SASC 347
Reasons for Ruling of The Honourable Justice Nyland
17 December 2010
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC
Accused charged with attempted murder - finding that accused unfit to stand trial - objective elements of crime established - significant impact on victim who was threatened with a knife - serious example of crime - reports indicate that accused has ongoing psychiatric problems - protection of community - not appropriate to release on licence - supervision order committing accused to detention - after giving credit for time served limiting term fixed of 13 years.
Criminal Law Consolidation Act 1935 ss 269B, 269H, 269L, 269M, 269O, referred to.

R v WASLEY
[2010] SASC 347

Cameron Bryce Wasley (the accused) is charged on Information that on 8 December 2009 at Hackham West he attempted to murder Rosemary Duncan. The penalty prescribed for this offence is imprisonment for life.
Upon his arraignment the accused raised a defence of mental unfitness to stand trial pursuant to s 269H Criminal Law Consolidation Act 1935 (“CLCA”). The accused then made an election for trial by judge alone pursuant to s 269B CLCA.
Pursuant to s 269L CLCA I decided to proceed first to determine the accused’s fitness to stand trial. By consent I was provided with a report of Dr Raeside, a psychiatrist, dated 20 April 2010, an additional report of Dr Raeside dated 22 June 2010, a report of Mr Ireland, a psychologist, dated 5 May 2010 and a report of Mr Balfour, a psychologist, dated 5 August 2010.
There was a consensus of opinion expressed in those reports as to the unfitness of the accused, which I summarise from the report of Mr Balfour dated 5 August 2010 as follows:
… I believe he would experience difficulty understanding the nature of the technical forensic evidence upon which the charges are based upon (ie DNA evidence, blood evidence, etc). He also has a very poor understanding of time concepts which would further impair his ability to understand the evidence.
… I believe that Mr Wasley has an insufficient understanding of the adversarial nature of the court room and the role of different court officers … However there are numerous significant gaps in his basic legal knowledge. I also do not believe he is capable of exercising his procedural rights in the court room in a meaningful manner.
… I do not believe that he has the intellectual and cognitive capacity to follow the gist of the legal proceedings or the course of the evidence presented during a trial. He would be prone to suffering from information overload. He would quickly become detached from the legal proceedings, confused and just acquiesce.
… Overall, on the balance of probabilities, I believe that Mr Wasley is legally unfit to stand trial.
Mr Wasley’s intellectual disability and autism are permanent medical conditions. I do not believe he will become legally fit to stand trial within the next 12 months. There is no psychological or medical treatment which can restore his intellectual functioning to the normal range.
As a result of the information contained in the reports, pursuant to s 269MA(5) CLCA, and with the agreement of the prosecution and the defence, I dispensed with further investigation into the accused’s fitness for trial and recorded a finding in accordance with s 269H(c) CLCA that the accused was unfit to stand trial on the ground that he would be unable to follow the evidence or the course of the proceedings.
As a result of that finding it was then necessary to proceed with the trial of the objective facts of the crime of attempted murder. By consent, the prosecution tendered a number of declarations of witnesses in this matter, namely:
statement of Rosemary Duncan dated 16 January 2010;
a further statement of Rosemary Duncan dated 21 March 2010;
statement of Andron Abdul dated 9 December 2009 (attached to which was a record of interview transcript marked Exhibit AA-CBW-Transcript);
statement of Jason Neil Tank dated 16 January 2009 (attached to which was a record of Interview transcript marked Exhibit JT-CBW-1 & 2 – Transcript);
statement of Bruce James Hockley dated 8 December 2009;
statement of Timothy Parry dated 8 December 2009;
statement of Austin Paul Reid dated 30 December 2009;
statement of Philip John Trenerry dated 9 December 2009;
statement of Grant Alan Norris, Crime Scene Examiner, dated 14 January 2010;
statement of Kimberley Anne Windram, Forensic Scientist, dated 12 May 2010.
The defence did not call any evidence.
Having considered the evidence contained in the declarations, I was satisfied beyond reasonable doubt, pursuant to s 269MB(2) CLCA that the objective elements of the crime of attempted murder had been established and I declared that the accused was liable to supervision. I then adjourned the question of the making of a supervision order and the fixing of a limiting term, to enable further reports to be obtained.
In considering the fixing of a limiting term it is necessary to have regard to the circumstances which resulted in the accused being charged with the crime of attempted murder. At the relevant time Ms Duncan had been working as a support worker for a company called Community Support for a period of about five years. On 8 December 2009 she had been the carer for the accused for about four weeks. Ms Duncan described the accused as “a lovely young man” with “the mental capacity of about a five year old” but she said that his temperament was “always up and down”. He repeated himself constantly and became frustrated when he could not express himself.
About 10.10 am he was visited by two police officers who were endeavouring to clarify whether the accused wanted to press charges in relation to another unrelated matter. She said that the accused became anxious and angry because he could not comprehend the reason for the police presence and once they had left he was saying words to the effect of “police are there for murder, they kill people”.
Ms Duncan said she was standing in the kitchen cooking pasta. The accused was in the kitchen, pacing up and down. She tried to calm him down but he walked to the drawer and said, “I’ll show you what murder is”. She said that she knew he was looking for a knife so she walked to the front screen door. When she looked back, she saw the accused holding a knife and he began walking towards her. She went out the front door but fell down a couple of times. Eventually, she fell and landed on her back. The accused caught up with her and sat on her stomach and pinned her down. He held the knife with both hands together up over his head. Ms Duncan said she tried to grab the knife with her hands and as she did that, the accused forced the knife down to her chest. She continued to struggle and eventually, the accused got up and walked away. She then saw that she was bleeding from her chest and hands. Ms Duncan was fearful for her life but thanked god that the accused had not killed her, although she said she did not think the accused really meant to hurt her.
The knife was subsequently located and examined by Mr Norris, a crime scene examiner, who described it as a knife with “a brown plastic handle which was 11 centimetres long and a blade which was 13.5 centimetres long”. He found a large amount of blood stains on the right hand side of the blade and smeared staining on the left and he noted that the blade was bent to the left as he held it in his right hand.
These events have understandably had a significant impact upon Ms Duncan. She told the social worker preparing the next of kin report that she had goose bumps when thinking about the incident and had goose bumps during the interview. She has not been able to eat or sleep properly and has not been able to work and she said “I felt like I needed to look over my shoulder all the time around people”. She has also suffered financial loss as no-one has paid her medical bills. She has been seeing a psychologist and a psychiatrist for anxiety and stress. She felt that she had moved on but nevertheless said “My life will never be the same because I can forgive, but never forget”.
Ms Duncan asked that the Court give consideration to setting a number of conditions which she believed would be beneficial to the accused, namely:
·That the accused not reside at his previous accommodation;
·Two people to work with the accused at any one time in a supported environment;
·That the accused continue receiving psychiatric and disability support;
·That the accused has a public advocate assigned under a guardianship order;
·That the accused does not have access to knives in the community.
The accused was subsequently assessed by Mr Balfour on 22 September 2010 at James Nash House. Mr Balfour said that the accused’s behavioural outbursts could be attributed to:
a combination of his low tolerance of frustration, his slow information processing which leads him to experiencing information overload and his lack of conceptual and social skills to appropriately assert himself.
Mr Balfour believed that the accused presented a significant risk to his carers and went on to say:
I am concerned that he now holds a rigid belief you must murder someone if you have a conflict with them. I believe his future carers would need to be fully briefed about how to manage his angry outbursts and given the appropriate training. His accommodation would need to be physically structured and tailored to his specific needs to reduce risk of harm to his carers, (eg removal of knives, duress alarms for staff, implementation of a behaviour management program by a psychologist, staff training, etc).
However, Mr Balfour believed that with the assistance of a supervised, structured rehabilitation program, the accused’s level of risk in the community could be reduced to an acceptable level and adequately managed. Mr Balfour made the following recommendations as part of a suggested treatment plan for managing the accused’s condition:
1.   Mr Wasley is already a client of Disability SA. It is recommended that Disability SA assist him to engage with rehabilitation programs to address his angry outbursts.
2.   Referral to a clinical psychologist for cognitive-behavioural therapy to increase his social skills and repertoire of coping strategies.
3.   Until Mr Wasley has participated in rehabilitation and developed a wider range of coping skills, people involved in Mr Wasley’s care may be at risk. As such, Mr Wasley should reside in supported accommodation, with additional staff and safeguards, until such time as his progress with rehabilitation is able to be reviewed.
4.   Referral to Autism SA.
5.   Referral to a living skills program. He would benefit from having his living skills assessed by an occupational therapist.
6.   I generally doubt his competency to make important decisions regarding his life. However, I do not believe he requires the assistance of the public Advocate’s office at present because he has a supportive mother to look after his best interests.
7.   That an application be made to the Guardianship Board for an administration order to assist with his financial management.
8.   That his medication needs are monitored by his general practitioner.
Dr Brereton is a psychiatrist working at James Nash House. He interviewed the accused on several occasions during the first six months of 2010, whilst conducting a psychiatric clinic in Yatala Labour Prison. He became the accused’s treating psychiatrist at James Nash House from 1 September 2010. His opinion and recommendations were as follows:
Mr Wasley has an intellectual disability and some significant difficulties in functioning as a result. This includes his ability to live independently but also affects his relationships with others. This might also be related to a possible diagnosis of high functioning autism. His diagnosis of a psychotic illness (schizophrenia or schizoaffective disorder) is less clear-cut. There has been some debate over whether he has a diagnosis of a psychotic illness and some reservations expressed given the atypical nature of his symptoms. Elsewhere, clinicians appear to have been more confident about such a diagnosis. On balance, given the persecutory nature of some of the beliefs he has expressed in the past, I am inclined to accept that Mr Wasley has a diagnosis of schizophrenia and so continue to treat him with a depot injection of an antipsychotic medication – which is, in either case, likely to be beneficial in terms of reducing his agitation and aggression. Assuming that he does suffer from a psychotic illness, it is fair to say that his symptoms respond well to treatment; he is currently free of any symptoms of psychosis or symptoms of a mood disorder, and it appears that he has been stable for some time.
Mr Wasley’s risk is more extensive than it might at first appear. He has a long history of being preoccupied with thoughts of death, murder, mutilation and sexual violence. The current offence is not the first concerning incident involving a knife. Mr Wasley has, on more than one occasion, while in James Nash House, told staff that he should have killed his victim and expressed regret that he did not, “finish the job”. He does not appear to understand that his violence was an inappropriate reaction to being frustrated and although he will sometimes say that what he did was wrong, there does not seem to be any real understanding or remorse. Similarly, he does not appear to appreciate the wrongfulness and consequences of non-consenting sexual violence. He is also vulnerable to exploitation and harassment from others.
In my opinion, Mr Wasley represents a very high risk of further violent offending. This risk is the consequence of his intellectual impairment and as such not easily amenable to interventions such as anger management programs or other therapeutic input. Any such therapy, if attempted, would have to be carried out by somebody with considerable experience in working with the intellectually disabled for it to be likely to assist. If Mr Wasley were to experience any psychotic symptoms again I believe this would increase the risk and so his mental state requires monitoring; the serious index offence did not however occur in the context of mental illness.
My understanding of the arrangements made so far for Mr Wasley’s care in the community is that he might be able to access accommodation in the Northern Suburbs (to be nearer his mother) through Community Mental Health Services. It has been proposed that he would then receive follow-up through an IPRSS package (NGO workers providing individual psychosocial rehabilitation). I have considerable concern about this as things stand. It is not clear to me who would be providing individual psychosocial rehabilitations). I have considerable concern about thins as things stand. It is not clear to me who would be providing the day-to-day care and monitoring that Mr Wasley requires, what their level of expertise and training would be and what measures would be in place to manage his risk. Some input would come from Mental Health Services, such as monitoring of his mental state and administration of his depot but they could not provide nearly the level of input that, in my opinion, Mr Wasley requires. I am concerned that Mr Wasley will essentially end up in the same situation, with the same type of input, that he was in when he nearly killed his carer.
I believe a lot more planning needs to be undertaken before Mr Wasley can be safely discharged. I have spoken with Disability SA, who are the lead agency in this case and would be co-ordinating his follow-up in the community. Josephine Arborn from Disability SA has informed me that ideally they would like to provide Mr Wasley with accommodation in a unit that has more than one client and which could provide 24-hour staffing and supervision. Unfortunately, no such accommodation is currently available. I would add that any staff in contact with Mr Wasley would have to be fully aware of the risk that he poses and to have had appropriate training and be made aware of how to respond it Mr Wasley were becoming agitated. I would envisage that most contact with Mr Wasley in the community would involve a minimum of two staff unless a number of other security measures could be put in place such as ensuring he did not have access to knives. I have contacted Disability SA with my concerns and suggested a review of Mr Wasley’s case to ascertain what resources would be available to him were he to be discharged into the community. With this in mind, I respectfully request the court consider that Mr Wasley be kept in detention at James Nash House for the time being and that the court approach Disability SA for a report outlining their proposal and the resources available for Mr Wasley’s future care in the community.
As a result of Dr Brereton’s recommendations, on 5 November 2010 I ordered a report be obtained from Disability SA as to possible arrangements which could be made if the accused was to be released on licence.
At the date hereof, the accused is 33 years of age. He has no prior criminal history. He clearly has significant cognitive limitations, as a result of which he has had limited education opportunities and employment and it is clear from the contents of the reports that he himself has been victimised for much of his life. However, given the seriousness of the offence and the matters expressed in the various reports, it is appropriate to make a supervision order committing the accused to detention, pursuant to s 269O(1)(b)(i) CLCA. It is also necessary for me to fix a limiting term, pursuant to s 269O(2) CLCA, which is equivalent to the period of imprisonment or supervision that would in the Court’s opinion, have been appropriate if the accused had been convicted of the offence of attempted murder and without taking account of the accused’s mental impairment. I take into account that the accused has been in custody since 8 December 2009, and I give him credit for that. I fix a limiting term of 13 years to commence from today. It is not appropriate at present to make any order for release on licence. That is a matter which should await the outcome of further reports as to the accused’s progress in James Nash House and proposals as to appropriate conditions for future care in the community for his benefit as well as for the protection of the community.