Wasley v Director of Public Prosecutions (SA)
[2020] SASC 52
•15 April 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
WASLEY v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2020] SASC 52
Reasons for Ruling of The Honourable Justice Stanley
15 April 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
This is an application to vary licence conditions pursuant to s 269P(1) of the Criminal Law Consolidation Act 1935 (CLCA).
On 11 August 2010, Nyland J found the defendant, Cameron Bryce Wasley mentally incompetent to commit the offence of attempted murder, pursuant to s 269M(B) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). An order was made committing Mr Wasley to detention for a period of 13 years. That order was made on 17 December 2010.
The Court was provided with an expert psychiatric report in relation to Mr Wasley from Dr Oliver Burgess, dated 11 September 2019. The report has been provided pursuant to s 269Q of the CLCA. Dr Burgess states that Mr Wasley is on a graded transition and discharge plan leading towards disability supported accommodation. However, due to the cessation of disability funding in June 2019, Mr Wasley’s transition has had to be temporarily ceased. The cessation of funding means a staff member of Disability SA is no longer available to participate in Mr Wasley’s transitional leave plan.
Dr Burgess advises that it would be extremely helpful if Mr Wasley’s licence conditions could be altered so as to provide that for the purposes of his transitional leave plan Mr Wasley could be escorted by two staff, either from James Nash House, the forensic mental health service or the disability sector, thereby eliminating the need for one staff member to be employed by Disability SA or a disability service provider.
The Director of Public Prosecutions does not oppose the variation.
Held:
1. The conditions of Mr Wasley’s licence are to be varied such that for the purposes of his transitional leave plan he can be escorted by two staff, either from James Nash House, the forensic mental health service or the disability sector.
Criminal Law Consolidation Act 1935 (SA) s 269M(B), s 269P, s 269Q, s 269T, referred to.
WASLEY v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2020] SASC 52Criminal
STANLEY J: On 11 August 2010, Nyland J found the defendant, Cameron Bryce Wasley, mentally incompetent to commit the offence of attempted murder, pursuant to s 269MB of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). An order was made committing Mr Wasley to detention for a period of 13 years. That order was made on 17 December 2010.
I have been provided with an expert psychiatric report in relation to Mr Wasley from Dr Oliver Burgess, dated 11 September 2019. The report has been provided pursuant to s 269Q of the CLCA. The report provides a statement of the treatment that the defendant has undergone since the last report and addresses any changes to the prognosis of his condition and the treatment plan for managing that condition.
Dr Burgess reports that the most significant change for Mr Wasley has been the cessation of support from a non-governmental organisation Community Living Options. This is due to funding changes as a result of the move towards the NDIS and closure of Disability SA. Mr Wasley now receives no support from the disability sector. Consequently, Mr Wasley’s transition program, which had been occurring with some success, has had to cease. He is now limited to the hospital ward. His current licence conditions stipulate than when on transition he is to be accompanied by two persons, at least one of those persons being a staff member of Disability SA or the disability care provider.
Dr Burgess reports that since beginning his transitional leave program, Mr Wasley has undertaken at least 100 episodes of leave. These have mostly occurred without issue. There have been several points in which he may either refuse leave or sabotage his leave, such as complaining about pain, even from walking, or making threatening gestures prior to leave commencing. However, Dr Burgess reports that these episodes are rare and the exception.
Dr Burgess advises that Mr Wasley is now in a difficult catch 22 situation. As noted in the psychiatric s 269T reports by Dr Brereton, Dr Nguyen and Dr Connell, a slow and graded approach to discharge, slowly exposing Mr Wasley to the community, is needed to safely manage his discharge. However, he is unlikely to receive funding for disability support until his discharge is much more imminent.
The overall treatment plan remains the plan described in the s 269T report by Dr Nguyen on 2 August 2017, namely, a graded transition and discharge plan leading towards disability supported accommodation. However, due to the cessation of disability funding in June 2019, Mr Wasley’s transition has had to be temporarily ceased. The cessation of funding means a staff member of Disability SA is no longer available to participate in Mr Wasley’s transitional leave plan.
In the circumstances, Dr Burgess advises that it would be extremely helpful if Mr Wasley’s licence conditions could be altered so as to provide that for the purposes of his transitional leave plan Mr Wasley could be escorted by two staff, either from James Nash House, the Forensic Mental Health Service or the disability sector, thereby eliminating the need for one staff member to be employed by Disability SA or a disability service provider.
Dr Burgess advises that he hopes that, following a period of successful transition, Mr Wasley may be able to be progressed to receiving NDIS funding prior to the contemplation of an eventual discharge destination and a return to Court for the commencement of stage 4 of his transition plan.
Pursuant to s 269P(1) at any time during a limiting term, the Court may, on the application of the Crown, the defendant, the Parole Board, the Public Advocate, the Commissioner for Victims’ Rights or another person with a proper interest in the matter, vary or revoke a supervision order.
I am satisfied that Dr Burgess, as Mr Wasley’s treating psychiatrist, is a person with a proper interest in the matter for the purpose of s 269P(1) of the CLCA.
Section 269T(2) provides that the Court cannot release a defendant under Subdivision 2 of Division 4 of Part 8A of the CLCA or significantly reduce the degree of supervision to which a defendant is subject unless certain conditions are satisfied. Those conditions are that the Court:
(a)has considered a report (an expert report) prepared by a psychiatrist or other appropriate expert who has personally examined the defendant, on—
(i) the mental condition of the defendant; and
(ii) the possible effects of the proposed action on the behaviour of the defendant; and
(b)has considered the report most recently submitted to the court by the Minister under this Subdivision; and
(ba)is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release; and
(c)has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; and
(d) is satisfied that—
(i) the defendant's next of kin; and
(ii) the victim (if any) of the defendant's conduct; and
(iii) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,
have been given reasonable notice of the proceedings.
The variation to Mr Wasley’s licence which is recommended by Dr Burgess does not involve a significant reduction in the degree of supervision to which he is subject. The Director of Public Prosecutions does not oppose the variation.
Accordingly, I am satisfied that the Court can proceed to vary the terms of the supervision order without regard to those matters sets out in s 269T(2)(b) to (d). Having considered the expert report of Dr Burgess, I am satisfied that it is appropriate to vary the conditions of Mr Wasley’s licence such that he can be escorted by two staff, either from James Nash House, the forensic mental health service or the disability sector.
I order accordingly.
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