15 June 2018 and further written submissions filed by 28 June 2018
Date of orders:
13 July 2018
Decision date:
13 July 2018
Jurisdiction:
Common Law
Before:
Schmidt J
Decision:
(1) I nominate, as the limiting term in respect of Ms Pearl Wilson’s offence of manslaughter, to be a period of 2 years 6 months imprisonment commencing on 5 July 2018 and concluding on 4 January 2021. (2) In accordance with s 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) I refer Ms Wilson to the Mental Health Review Tribunal. (3) In accordance with s 24(1)(b) of the Mental Health (Forensic Provisions) Act Ms Wilson’s release from custody on bail is to continue, pending the making of orders in relation to Ms Wilson, under s 27 of that Act, on the following conditions: 1. Ms Wilson is to reside at XX XX XXXXX Rd, Dapto 2530. 2. Any change in address must be provided in writing to the Registrar of the Supreme Court of NSW and the Registrar of the Mental Health Review Tribunal within 48 hours. 3. Ms Wilson is to obey all directions given to her by the Mental Health Review Tribunal, including taking part in any psychiatric or psychological assessment required by the Tribunal and notified in writing to the Aboriginal Legal Service NSW/ACT Ltd, PO Box 191 Wollongong, NSW 2500 (Attention Jack Hibbard, jack.hibbard@alsnswact.org.au; Tel (02) 4276 7100; Fax (02) 4276 7101) (4) The Registrar is to give notice of these orders to: (a) the Minister for Health; (b) the Chairperson of the Mental Health Review Tribunal; and (c) the Commissioner for Corrective Services NSW. (5) The Registrar is also to provide a copy of this decision and R v Wilson (No 4) [2017] NSWSC 1730 to the Chairperson of the Mental Health Review Tribunal.
Catchwords:
CRIMINAL LAW – sentence – special hearing – judge alone – guilty of manslaughter on the limited evidence available – where term of imprisonment would have been imposed – limiting term nominated – Mental Health (Forensic Provisions) Act 1990 (NSW) s 23 – general and specific deterrence – aggravating and mitigating matters – personal circumstances – victim impact statement – length of limiting term – orders under s 24(1)(b) of the Mental Health (Forensic Provisions Act 1990 (NSW) – release from custody on conditions to continue
STATUTORY CONSTRUCTION – proper construction of s 24(1)(b) of the Mental Health (Forensic Provisions Act 1990 (NSW) – whether Court can order continuing release from custody on conditions, if considered appropriate
[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 Wilson (No 5)
Sign in free to access the full text
Details
AGLC
R v Wilson (No 5) [2018] NSWSC 1077
Case
[2018] NSWSC 1077
Decision Date
CaseChat Overview and Summary
In the case of R v Wilson (No 5), the defendant was convicted of manslaughter and sentenced under the Mental Health (Forensic Provisions) Act 1990 (NSW). The primary dispute centred around the appropriate length of a limiting term for the defendant's imprisonment and whether a release from custody on specific conditions was permissible under the statute. The case was heard by a single judge in the Supreme Court of New South Wales.
The legal issues that the court had to address included the proper construction of section 24(1)(b) of the Act, particularly whether it allowed the court to order the defendant's release from custody on conditions if deemed appropriate. Additionally, the court had to consider the appropriate length of the limiting term for the defendant's imprisonment, taking into account various aggravating and mitigating factors, as well as the personal circumstances of the defendant and the impact on the victim's family.
The court determined that the statutory provision did indeed permit the court to order the defendant's release from custody on conditions if it was considered appropriate. The judge found that the evidence supported the imposition of a limiting term, and after considering all relevant factors, including the victim impact statement, the court set a specific length for the limiting term. The court further concluded that releasing the defendant from custody on conditions was appropriate, taking into account the defendant's mental health and the need for ongoing treatment and supervision. This decision was based on the overall interests of justice and public safety.
The final orders of the court included a sentence that imposed a term of imprisonment for the defendant, with a specified limiting term. Additionally, the court ordered the defendant's release from custody on conditions to continue, as provided for under section 24(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW).