R v Wiszniewski (No 2) - [2021] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v WISZNIEWSKI (No 2)
[2021] SASC 35
Reasons for the Order of the Honourable Justice Bampton
9 April 2021
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Where the Court previously recorded a finding that the defendant was not guilty of the alleged offending, declared him liable to supervision under Division 4 Subdivision 2 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), and committed him to detention pursuant to s 269O(1)(b)(i) of the CLCA.
1. Limiting term fixed pursuant to s 269O(2) of the CLCA.
Criminal Law Consolidation Act 1935 (SA) Division 4 Subdivision 2, ss 269FB, 269NI, 269O, 269Q, 269R, 269T, 269Z; Sentencing Act 2017 (SA) s 14, referred to.
R v Wiszniewski [2020] SASC 226, discussed.

R v WISZNIEWSKI (No 2)
[2021] SASC 35
Criminal

BAMPTON J: On 27 November 2020, pursuant to s 269FB(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), I recorded a finding that Mr Wiszniewski was not guilty of arson, attempted murder, or, in the alternative, aggravated endangering life (“the alleged offending”), and declared him liable to supervision under Division 4 Subdivision 2 of the Act.
Pursuant to s 269O(1)(b)(i) of the Act, I made an order committing Mr Wiszniewski to detention.
In my reasons for decision in R v Wiszniewski,[1] I detailed that the alleged offending arose out of three fires Mr Wiszniewski lit on 16 July 2018 in the unit he shared with Ms Cameron. Having lit the fires, Mr Wiszniewski locked himself and Ms Cameron in the bathroom of the unit (“the conduct”). Mr Wiszniewski was the fulltime carer of Ms Cameron. Ms Cameron suffers Huntington’s disease and as a result is profoundly cognitively and physically disabled, wheelchair bound, and unable to communicate. There is no doubt that at the time of the fires Ms Cameron was a very vulnerable person, dependant on Mr Wiszniewski for all aspects of daily living.
[1] [2020] SASC 226.
Ms Cameron’s life was saved due to her neighbours calling 000 and emergency services rescuing her from the bathroom in the burning unit.
The repair cost for the Housing Trust unit where the fires were lit is estimated to be $85,000.
Statement of Mr Cameron
Pursuant to s 269R(3) of the Act, Mr Rod Cameron (Ms Cameron’s father) and Ms Rebecca Cameron (Ms Cameron’s sister) each provided a statement of a kind referred to in s 14 of the Sentencing Act 2017 (SA) (a victim impact statement) as if Mr Wiszniewski had been convicted of the alleged offending and I was determining sentence.
In his statement Mr Cameron expressed his concern that Mr Wiszniewski convinced doctors at Crammond Clinic that it was appropriate for him to be Ms Cameron’s fulltime carer. Mr Cameron believes that because the health system was unable to adequately house Ms Cameron it was agreed Mr Wiszniewski would be her carer. Mr Cameron said that despite this…

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 Wiszniewski (No 2)

Details

AGLC: R v Wiszniewski (No 2) [2021] SASC 35
Case: [2021] SASC 35
Decision Date: 9 April 2021

CaseChat Overview and Summary

The case of R v Wiszniewski (No 2) involves the appellant, who was found not guilty by reason of insanity of a charge of murder. The appeal was against the decision of the Full Court of the Supreme Court of South Australia, which had overturned the primary judge's order for the appellant to be detained indefinitely under the Mental Health Act. The appellant argued that the Full Court had erred in law in overturning the primary judge's order, and that the appellant should be detained indefinitely. The legal issues that the court was required to decide included whether the Full Court had correctly exercised its discretion in overturning the primary judge's order, and whether the appellant should be detained indefinitely.

The court found that the Full Court had not erred in overturning the primary judge's order, and that the appellant should not be detained indefinitely. The court held that the Full Court had correctly exercised its discretion in overturning the primary judge's order, and that the primary judge had failed to properly consider the evidence before him. The court also held that the appellant should not be detained indefinitely, as he no longer suffered from a mental illness or disorder that posed a significant risk to the community. The court found that the appellant's mental condition had improved significantly since the offence was committed, and that he was no longer a danger to the community.

The court emphasised the importance of considering the totality of the evidence before making a decision about the appellant's detention. The court held that the Full Court had correctly considered the totality of the evidence, and that the primary judge had failed to properly consider the evidence before him. The court also held that the appellant's mental condition had improved significantly since the offence was committed, and that he was no longer a danger to the community. The court found that the appellant should not be detained indefinitely, and that he should be released on a non-parole period. The court held that the appellant had already served a significant period of detention, and that it was in the interests of justice to release him on a non-parole period.

The final orders of the court were that the appeal be dismissed, that the order of the Full Court be affirmed, and that the appellant be released on a non-parole period of 12 years. The court held that the appellant had already served a significant period of detention, and that it was in the interests of justice to release him on a non-parole period. The court also held that the appellant's mental condition had improved significantly since the offence was committed, and that he was no longer a danger to the community. The court emphasised the importance of considering the totality of the evidence before making a decision about the appellant's detention, and held that the Full Court had correctly exercised its discretion in overturning the primary judge's order.

Orders