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 Mr Wiszniewski did try his best to manage Ms Cameron as her illness progressed. However, Mr Cameron is of the view that Mr Wiszniewski was out of his depth and had no idea of what was coming. He said that Mr Wiszniewski hid the mistakes he was making by not allowing Ms Cameron’s family access to her.
Mr Cameron said that in his view Mr Wiszniewski was psychologically ill equipped to care for his daughter, and the loneliness that became his life in the last five years caring for Ms Cameron only increased this. Mr Cameron spoke of how Huntington’s disease has afflicted his family. He told me that he looked after his wife, who suffered Huntington’s disease, for the last 11 years of her life. He said he did it alone, as Mr Wiszniewski tried to do. As a result, Mr Cameron said it left him in very poor mental health. Mr Cameron’s eldest daughter Elizabeth also suffered and died because of Huntington’s disease. Mr Cameron is the guardian for his son, who suffers Huntington’s disease, and now Ms Cameron, both of whom are in 24-hour, seven days a week care, with NDIS support structures in place. Mr Cameron stated he often wondered how Mr Wiszniewski was coping, and that he hopes he has benefited from the psychiatric help and counselling he has received in James Nash House.
Mr Cameron concluded his statement saying, “It is no good feeling bitter towards Mr Wiszniewski” and that “if there is anything positive that came out of the fire in the unit it is Rachel has got the structure, services, and supports she required to end her life’s journey”. He added that Mr Wiszniewski “has been relieved of the ‘burden’ of what caring for a Huntington’s person entails and is now receiving the help he needs to adjust back into society” and that he “hopes he moves onto better times”.
Statement of Rebecca Cameron
Ms Cameron’s older sister, Rebecca Cameron, detailed in her statement how Ms Cameron was a young, vulnerable woman struggling with mental health issues who came to live with her and her husband. Rebecca Cameron said that in many ways she was a mother figure to Ms Cameron, as their own mother was too incapacitated to care for Ms Cameron due to Huntington’s disease.
Rebecca Cameron said that Ms Cameron then decided to move out and live with friends but, as she was young and experiencing her own health issues, she regressed quickly and became very mentally unwell and vulnerable. It was at about this time Rebecca Cameron said that Ms Cameron met Mr Wiszniewski who was unemployed and living in his car. Rebecca Cameron said that he attached himself to Ms Cameron, leading her to believe that he would support and care for her. Rebecca Cameron said that she pleaded with Ms Cameron to get medical help as she had become so mentally unwell that she was having psychotic episodes. However, Ms Cameron feared authority and believed that she was Jesus. Rebecca Cameron said at this point Ms Cameron became a danger to herself and others. She said Mr Cameron tried via the Public Trustee to get Ms Cameron medical help. It was at this point that Mr Wiszniewski intervened and said Ms Cameron did not need any medication, as the medical profession is just another form of authority and control. Rebecca Cameron reported that during a Public Trustee hearing she attended to support her father’s view that Ms Cameron needed to be on a compulsory medication plan, Mr Wiszniewski told Ms Cameron that she and her father wanted to drug her and put her into care. Rebecca Cameron reported that Ms Cameron was scared and aggressive at the hearing, shouting out in anger towards her family. Following the hearing, Ms Cameron went to live with Mr Wiszniewski with an enforced health and medication plan. Rebecca Cameron said thereafter Ms Cameron was totally isolated from family and friends.
Rebecca Cameron was watching the news when she found out about Ms Cameron being rescued from the fires and was distressed seeing her removed from the unit on an ambulance stretcher. She said that all she could think about was how terrified Ms Cameron must have been as she could not walk to free herself or call out for help.
Rebecca Cameron said that she went to hospital to visit Ms Cameron after she was rescued and saw a scared child who no longer had a voice and was cradling a filthy, one-eyed doll to her chest. Rebecca Cameron said that it triggered memories of her own childhood, growing up with her mother’s illness, and a sense of betrayal at a system that could allow Mr Wiszniewski to have the level of control that stole the years Ms Cameron should have had with her family and friends. Rebecca Cameron said that writing the statement was important to her as Ms Cameron no longer has a voice.
Rebecca Cameron said that despite also having Huntington’s disease her mother, sister, and brother were all able to talk and communicate up to the end of their lives as they had people around them to talk with them, allowing them to exercise the muscles needed to speak. Rebecca Cameron believes that Ms Cameron’s condition has worsened due to the isolation and absence of the appropriate human interaction, stimulation, therapy, and medical intervention she deserved.
Rebecca Cameron said that what happened to her sister has left her depressed and scared, as she does not know how to reconnect and start again. She grieves for her sister and the time and connection with her she has lost. She feels sick and sad that what happened to Ms Cameron has brought back the traumatic stress from her past. She said she will need to get her own help and support to work through what has happened whilst balancing her fulltime job, family, and other stressors, including the fact that her brother is also terminally ill with Huntington’s disease.
Section 269R and section 269Z report
Mr Cameron was also consulted by Ms D’Alessandro for the purposes of the victim pursuant to s 269R[2] and next of kin counselling report pursuant to s 269Z[3] of the Act. Mr Cameron has requested that Mr Wiszniewski does not make any contact with Ms Cameron, her carers, him or any other member of his family.
[2] Section 269R provides the Crown must provide the Court with a report detailing the views of the victim(s) of the defendant’s conduct and the next of kin of the defendant.
[3] Section 269Z provides that if an application is made under Division 4 of the Act which might result in the defendant being released from detention the Crown must ensure that counselling services in respect of the application are made available to the victim(s) of the defendant’s conduct and the next of kin of the defendant.
Ms D’Alessandro spoke to Mr Wiszniewski’s sister, Katrina Wiszniewski, who is the spokesperson for Mr Wiszniewski’s family of nine brothers and sisters. Ms Wiszniewski has indicated that she is willing to offer Mr Wiszniewski accommodation when he is ready for release. Ms Wiszniewski said that her family were not fully aware of how their brother was struggling with his circumstances otherwise they would have offered to assist him.
Dr Haeney’s report
Dr Owen Haeney provided a report pursuant to s 269Q(1)[4] and s 269T(2)(a)[5] of the Act.
[4] Section 269Q(1) provides the Minister must upon a defendant being declared liable to supervision submit a report prepared by a psychiatrist on the mental condition of the defendant containing a diagnosis and prognosis of the condition and a suggested treatment plan
[5] Section 269T provides that the Court cannot release a defendant under subdivision 2 of Division 4 of the Act or significantly reduce the degree of supervision to which the defendant is subject unless the court inter alia has considered a report prepared pursuant to s269T(2)(a) by a psychiatrist, who has examined the defendant, on the mental condition and the possible effects of the proposed action on the behaviour of the defendant.
Dr Haeney confirms Mr Wiszniewski suffers delusional disorder characterised by the presence of delusions occurring in the absence of other symptoms more typically associated with schizophrenia. He states that Mr Wiszniewski’s delusions took approximately two years to resolve but it does appear that he accepts he was not persecuted in the way he previously believed. Mr Wiszniewski now demonstrates a good understanding of the benefits of medication and the need for ongoing treatment. As such, Dr Haeney believes that Mr Wiszniewski’s prognosis is very positive. Dr Haeney believes that in accordance with his suggested treatment plan, Mr Wiszniewski’s condition is unlikely to significantly relapse and if he did begin to deteriorate, he would be able to detect it himself. It would likely be detected by Mr Wiszniewski himself, by the family with whom he would be living, or by professional services mandated to supervise and support him.
Dr Haeney states that the conduct occurred only at the culmination of long term stress, isolation, lack of treatment/recognition of his illness and drug use. With plans in place underpinned by a supervision order, Dr Haeney believes it is unlikely Mr Wiszniewski would pose a risk to the public.
Dr Haeney considers Mr Wiszniewski is safe to be managed in the community and would not significantly benefit from further time in hospital. He notes that Mr Wiszniewski has already been in James Nash House for over two years and eight months and has responded well to treatment. In Dr Haeney’s opinion, Mr Wiszniewski does not require detention in hospital. He recommends he be released on licence with conditions allowing for a brief period of transition (accompanied leave, initially with two staff, reducing to one) out of James Nash House to ascertain the resilience of his mental state and how he interacts with the public.
Dr Haeney is mindful that the Court’s primary concern is for the protection of the public. He acknowledges that Mr Wiszniewski’s offending was extremely serious and that his inability to explain his motivation, his blame of an innocent party, and the longstanding nature of his illness are all a cause for concern. Recognizing that the Court may not wish to entertain the idea of such a rapid discharge straight into the community at this stage, Dr Haeney suggests an alternative treatment plan that allow transition and discharge to Ashton House, the forensic stepdown unit. Upon such discharge, Mr Wiszniewski, whilst not having the same degree of physical security as in James Nash House, would still be closely monitored while he makes the transition back into the community. Under this treatment plan, Dr Haeney recommends release on licence with conditions permitting accompanied leave into the community escorted by staff from forensic mental health, progressing to unaccompanied leave at Ashton House and then overnight leave to Ashton House. If Mr Wiszniewski progresses as expected he could be discharged to Ashton House in approximately three to six months’ time. Dr Haeney also suggests that Mr Wiszniewski’s licence conditions stipulate that he have accompanied leave with staff from Ashton House.
The Director of Public Prosecutions is agreeable to the alternative treatment plan suggested by Dr Haeney.
During submissions, I was informed Mr Wiszniewski had worked with several organisations as a carer. I was provided with references attesting to the work he has done. Mr Wiszniewski had been living with and caring for Ms Cameron for over eight years prior to the conduct. Mr Wiszniewski’s counsel provided the letters from Ms Cameron’s general practitioner, Dr Jillian Maxwell, referred to my reasons for decision, wherein she refers to Mr Wiszniewski’s care of Ms Cameron as exemplary. I note Dr Maxwell’s observations but bear in mind both Mr Cameron’s and Rebecca Cameron’s concerns that Ms Cameron did not have access to appropriate care.
Mr Wiszniewski’s distrust of persons in authority and service providers increased as Ms Cameron’s condition and his mental condition deteriorated. Consequently, his ability to negotiate with service providers and advocate on behalf of Ms Cameron was severely compromised. Ms Cameron did not have access to the care and services she required culminating in a situation where she was perilously close to death. Similarly, Mr Wiszniewski’s worsening mental impairment stymied his access to the psychiatric help he needed.
The maximum penalty for attempted murder is life imprisonment and the maximum penalty for arson is life imprisonment.
Mr Wiszniewski was arrested on 16 July 2018 and has been detained since 17 July 2018.
Mr Wiszniewski has no history of relevant offending.
In fixing the limiting term I must proceed as if I am sentencing for the alleged offences of arson and attempted murder constituted by the objective conduct I have found established beyond reasonable doubt. Mr Wiszniewski’s objective proven conduct is very serious and the potential consequences for Ms Cameron were fatal. Having regard to all relevant factors pursuant to s 269O(2) of the Act, I fix a limiting term of eight years reduced by period Mr Wiszniewski has been in detention, leaving a term of five years and three months.
Pursuant to the regime for disposition of persons declared liable to supervision under Division 4 of the Act, the limiting term fixed is not a punishment. It is an order fixing the limit of the term of supervision Mr Wiszniewski is subject to under s 269O of the Act.
Having regard to Dr Haeney’s report pursuant to s 269Q and opinion pursuant to s 269T and the principle upon which the Court is to act as prescribed by s269NI[6] of the Act, I order that Mr Wiszniewski be subject to a supervision order pursuant to s 269O(1)(b)(ii) of the Act in terms of the draft supervision order provided to me.
[6] Section 269NI of the Act provides:
(1)The paramount consideration of the court in determining whether to release a defendant under this Division, or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general).
(2)The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum.
I list the matter for further consideration in four months and request that Dr Haeney provide a further s269T report regarding Mr Wiszniewski’s progress prior to the date of the next hearing.