Director of Public Prosecutions v Ashford

[2019] VCC 2162

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-01140

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM TANE ASHFORD

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JUDGE:

HER HONOUR JUDGE LAWSON

WHERE HELD:

Melbourne

DATES OF HEARING:

30 May 2018, 22 June 2018, 20 July 2018, 3 August 2018, 21 September 2018, 16 October 2018, 19 December 2018,

DATE OF SENTENCE:

18 December 2019, 22 January 2019, 12 February 2019, 13 February 2019, 14 February 2019, 1 May 2019, 2 May 2019, 3 May 2019, 6 May 2019, 19 August 2019, 12 September 2019, 4 October 2019, 15 November 2019, 16 December 2019

18 December 2019

CASE MAY BE CITED AS:

DPP v Ashford

MEDIUM NEUTRAL CITATION:

[2019] VCC 2126

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997- Non custodial supervision order imposed.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Triandos	Abbey Hogan, Acting Solicitor for the Office of Public Prosecutions
APPEARANCES (CONT.)	Counsel	Solicitors
For the Accused	Mr A Pyne	Victoria Legal Aid
For the Secretary to the Department of Health and Human Services	19 August 2019, 12 September 2019, 4 October 2019, 15 November 2019 Ms S Varney (with leave of the Court) 16 December 2019 Ms M Wilson (with leave of the Court)	Legal and Executive Services, Department of Health and Human Services

HER HONOUR:

1       Adam Tane Ashford is a 20-year-old man of Maori descent.  He experienced a severe brain injury as a result of being struck by a car whilst riding his bicycle as a three-year-old toddler.  He suffered further head injury as a consequence of being struck in the head by a hammer some time in 2016.

2       Mr Ashford has Major Neurocognitive Disorder of Traumatic Brain Injury as a consequence of which he has significant behavioural difficulties. In addition, he has a history of poly-substance abuse and has been diagnosed with suffering from a significant disturbance in personality. 

3       On 11 January 2018, he was charged with armed robbery, make threat to kill and common assault.  These offences were committed when he was aged 18.  The charges arose out of an incident on the Geelong train where it was alleged that he was armed with a knife and used violence to steal a backpack belonging to another male passenger.

4       Mr Ashford was initially granted on bail on these charges. However, he committed further offending involving multiple theft charges relating to the Dan Murphy’s liquor store, Geelong (the unrelated offending) such that his bail for the unrelated offending was revoked. 

5       His bail in respect to these proceedings continued until 21 September 2018, when an application to revoke his bail was granted, having regard to the fact that he had breached bail by committing further offending and was an unacceptable risk of re-offending, and deemed to be a risk to public safety due to the nature of some of the offences committed whilst on bail.  Thereafter, he has been on remand since that date.  As at 16 December 2019 he has been in custody on remand for these charges for a total of 459 days.

6       Whilst on remand, Mr Ashford has presented many management problems within the prison system and, at times, has been held in isolation in 23-hour lockdown, and has been subject to being managed by instruments of restraint, including spit hoods.

7       It is not apparent that the correctional authorities were fully apprised of Mr Ashford’s profound disabilities, notwithstanding his long-term history of involvement with the criminal justice system through the youth justice system. 

8       Mr Ashford’s early development was marked by family dysfunction, parental instability, mental illness and domestic violence.  Ultimately, his mother was not able to properly care for him. His father has an Acquired Brain Injury. 

9       He was placed under the care by Secretary Order in late adolescence.  He lived in a facility run by McKillop Family Services until he was aged 17. 

10      He was, in 2016, assessed as being able to live independently, and was listed as a tenant of a house in Norlane. 

11      In the community, prior to remand, Mr Ashford was provided with support through his entitlements pursuant to the Transport Accident Act.

12      In May 2016, the TAC recommended funding in a Multi and Complex Need Model Service (“MACNM”) for Mr Ashford that was provided through another agency, Cohealth. 

13      The MACNM Service is a model of care for significantly complex TAC clients who have exhausted all other suitable options. 

14      Cohealth contracted an outreach service, Eastern Region Mental Health Association (“ERMHA”) to assist Mr Ashford live independently.  They provided him with daily support six to seven hours per day, six days per week.  They organised his medications, took Mr Ashford to appointments and assisted him with his daily-living skills and access to the community.  That service stopped when he was remanded in custody. 

15      Mr Ashford remains eligible for assistance from the TAC on his release from custody with respect to income support and other services.

16      Following the revocation of his bail for these charges Mr Ashford has been held on remand.

17      On 1 May 2019, following a fitness investigation hearing, Mr Ashford was found unfit to stand trial pursuant to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“The Act”).

18      Dr Dion Gee gave evidence at the fitness investigation hearing. He assessed Mr Ashford on 7 May 2018 and provided a psychological report, dated 29 October 2018. 

19      He confirmed that Mr Ashford gave the impression of a man whose general cognitive capacities fell within the extremely low range, albeit with his cognitive profile highly contaminated by multiple biopsychosocial factors and an insidious traumatic brain injury, and a failure to thrive. 

20      An earlier assessment performed by Dr Danny Sullivan on 1 January 2017, found that Mr Ashford:

“… has a propensity to impulsive and reckless poly-substance abuse … he is markedly impaired by intoxication, reflecting synergistic effects of intoxication on his damaged brain … he would meet a diagnosis of Conduct Disorder.  In part his moral reasoning is likely affected by Acquired Brain Injury … there is no overt indication of psychotic illness or mood disorder.  However, he is more prone to labile or volatile mood due to Acquired Brain Injury … impaired judgment and limited insight into his problems renders independent living highly unlikely in the long term”.

21      Dr Gee confirmed that, at the time of engaging in the conduct constituted by the offending, the subject of the Indictment, he suffered from a mental impairment (that is, Major Neurocognitive Disorder of Traumatic Brain Injury). 

22      He recommended a comprehensive re-evaluation of Mr Ashford’s neuropsychological functioning to be undertaken prior to him being relocated from his current environment.

23 The fact that Mr Ashford was not fit to be tried was not in contention. Notwithstanding that it was found that he had a basic and probably adequate understanding of the nature of the charges, he was not considered fit in regards to the remaining criteria under the Act.

24      Dr Adam Deakin, consultant psychiatrist, also provided a report, dated 6 June 2018. He was not called to give evidence. Dr Gee was provided with a copy of that report. Dr Deakin confirmed in his expressed opinion that Mr Ashford was not fit to stand trial. 

25      Dr Deakin concluded that it was unfortunate that NDIS or MACNM have not been able to provide a more comprehensive package of care that caters to Mr Ashford’s complex needs to reduce his propensity towards offending.  He concluded that his prognosis is unfortunately very poor unless he is supported and supervised.  He postulated that he would be very vulnerable in a prison setting and at great risk of being harmed and exploited. 

26      Following the determination that Mr Ashford was unfit to stand trial, a Special Hearing was conducted. 

27      Ultimately, the prosecution filed over an amended Indictment and the armed robbery charge, Charge 1, was resolved to a robbery charge, and a Statement of Agreed Facts was read to the jury. 

28      The Statement of Agreed Facts that was read to the jury is attached as a Schedule to these Reasons.

29 On the 6 May 2019 the Special Hearing concluded with the jury finding that Mr Ashford had committed the three charged offences. He was declared liable to supervision pursuant to s18(4(1)(a) of the Act.

30 Following the Special Hearing, a Certificate of Available Services and a report, pursuant to s41(1) of the Act was requested.

31 On 10 June 2019, pursuant to s41(1) of the Act Ms Jacqui Brown, clinical psychologist, provided a report.

32      A Certificate of Available Services, dated 9 August 2019, was obtained. The Department of Health and Human Services (“DHHS”) confirmed that it had no facilities for the custody of Mr Ashford in the event that a Custodial Supervision Order was imposed.  In the event that a Non-Custodial Supervision Order was imposed, DHHS could only provide case coordination for the duration of the Order to facilitate participation in services aimed at reducing his likelihood of re-offending and could play a coordination role only. 

33      DHHS noted that Mr Ashford met the requirements for the National Disability Insurance Scheme (“NDIS”), however no plan had been entered into. 

34      Disability Justice Coordination offered to assist Mr Ashford with the NDIS planning process to obtain supports to meet his disability-related needs in the community.  It was proposed that they would engage with a neuropsychologist to assess his adaptive living skills to inform the NDIS planning process. 

35      No other specific supports were suggested to enable Mr Ashford to return to live at his public housing tenancy in Norlane.

36      A further issue was highlighted with respect to that property. Mr Ashford had consented to some friends staying there whilst he was in prison. It was likely that methylamphetamines were being used at the property and, therefore, the possibility that the property may have to be the subject of a chemical clean was raised. Such a process would mean that the house may not be habitable for up to nine months.

37      On 19 August 2019, when the matter was the subject of a further hearing, DHHS were requested to make further enquiries so that a specific plan could be provided to the Court with respect to what other residential options are available that would be appropriate for the Court to consider in the making of a proposed Non-Custodial Supervision Order. The need to balance Mr Ashford’s needs with the necessity to protect the public was emphasised. 

38      In addition, the need to release Mr Ashford with suitable community supports was emphasised, having regard to the Court’s concern that he had been in custody for a length of time that exceeded what would otherwise have been imposed for a person who did not have a disability.

39      On the next hearing date, on 12 September 2019, DHHS was represented by Ms S Varney.

40      On that date the Court was informed that an NDIS plan is now in place.  An NDIS planning meeting had been convened on 5 September 2019 at the Port Phillip Prison.  The plan was approved on 11 September 2019.  A total of $140,000 has been allocated for one year to assist with providing appropriate supports to Mr Ashford. 

41      At that stage DHHS was still making enquiries in respect to MACNM funding.

42      It was agreed that the people who were occupying Mr Ashford’s house in Norlane would be evicted. The eviction was to take place on 18 September 2019, following which DHHS would then be able to assess the state of the house and determine whether it is habitable.  If it is capable of being habitable, then subject to Mr Ashford being able to receive a suitable level of support, it was said that it may be appropriate accommodation.

43      Discussions were then undertaken between the NDIS and TAC concerning the potential for further sufficient support to be provided to Mr Ashford. It was considered that the amount of funding allocated by the NDIA was not sufficient to support the number of hours required.

44      Ms Fiona Evans, a TAC representative, gave sworn evidence on 12 September 2019. She confirmed that she would speak with NDIS and Mr Ashford, with a view to try to come to an appropriate arrangement concerning funding.

45      Other alternatives were to be explored including supported accommodation at a facility known as Nicholson House in Preston.  Ms Varney confirmed that DHHS considered that the facility could be suitable for Mr Ashford and steps were taken for him to be considered for a vacancy.  A decision was anticipated on 13 September 2019.

46      In addition there would be further exploration of whether Mr Ashford could be considered for accommodation operated by the Community Brain Disorders Assessment and Treatment Services (“CBDATS”).  That is a service which MACNM has referred Mr Ashford to, and operates through the Austin Hospital, Heidelberg. 

47      It was not anticipated that this referral could be done expeditiously because Mr Ashford needed to go on a list to be considered eligible for their service, and also MACNM considered a neuropsychological assessment could be helpful, and efforts were going to be made to find out whether this could be done via CBDATS, or whether some other avenue should be pursued. 

48      The matter was further adjourned for mention on 4 October 2019 and the 8 November 2019 until the 16 December 2019 because the Certificate of Services could not be completed due to there being no confirmation that suitable accommodation was available.

49      A further Certificate of Available Services dated 11 December 2019 has now been signed and filed with the Court that supersedes the earlier certificate, a copy of which is attached to these reasons.

50      Mr Ashford has now been accepted by Nicholson House, Preston, a Specialist Forensic Disability Accommodation, with a structured, 24 hour staffing model and he has indicated his willingness to be a resident.

51      Therefore Disability Justice Co-ordination will provide the services outlined in the certificate.

52      Mr Ashford is an exceptionally vulnerable and impressionable young man who struggles to cope independently. In the absence of extensive supports addressed at managing his complex needs he is at high risk of re-offending. 

53      In all the circumstances a Non-Custodial Supervision Order is appropriate.  My observation is that, had Mr Ashford been charged with robbery, and the matter proceeded as a plea of guilty in the Magistrates’ Court, it is most probable that he would not have spent the extended time in custody that has regrettably occurred. There have been 460 days spent in custody on remand for these matters.

54      A Non-Custodial Supervision Order will allow Mr Ashford to be accommodated in circumstances where he is provided with extensive supports in the community, offering him stability in his accommodation, supervision, treatment and social supports.  As a resident of Nicholson House he will receive assistance to increase his independent living skills and strategies to manage his behaviours of concern.

55 On the 6 May 2019 Mr Ashford was declared liable to supervision pursuant to s18(4)(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act.

56      The proposed formal Court Orders are -:

1. That Adam ASHFORD be released on a non-custodial supervision order pursuant to s26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), to be supervised by the Secretary to the Department of Health and Human Services or his/her delegate on the following conditions, namely, that he :

a.  Reside at Nicholson House, 13-15 Kenneth Street, Preston or any other address directed by the Secretary to the Department of Health and Human Services or his/her delegate;

b.  Abide by any lawful directions given by the Secretary to the Department of Health and Human Services or his/her delegate;

c.   Accept any services, and undertake any assessments, as directed by the Secretary to the Department of Health and Human Services or his/her delegate;

d.  Not leave the State of Victoria without the consent of the Secretary of the Department of Health and Human Services or his/her delegate.

2. That the nominal term of the non-custodial supervision order be 7.5 years,   commencing 13 September 2018.

57 I declare that pursuant to s28(4) of the Act, and in accordance with s28(5), the nominal term is 7.5 years, commencing from 13 September 2018.

Dated: 18 December 2019

Her Honour Judge Lawson

Crimes (Mental Impairment &

Unfitness to be Tried) Act 1997

Section 47

U.R. No.000000000

Unit Record No 00000000

Ward / Unit ...............................................................

Family Name ............................................................

Given Names ............................................................ D.O.B. ............................. Sex ................................. Alias .........................................................................

CERTIFICATE OF AVAILABLE SERVICES                  

OUTLINE OF AVAILABLE FACILITIES AND SERVICES

Should the court impose a Non-Custodial Supervision Order (NCSO) on Mr Ashford, the services which can be provided by the Department of Health and Human Services, on the assumption that he will be a resident of Nicholson House, are:

.

•   Disability Justice Coordination will be provided for Mr Ashford for the duration of his order to facilitate his participation in services aimed at reducing the risk of re-offending. 

•   Disability Justice Coordination will establish regular care team meetings with all service providers involved to establish and maintain a service system that is responsive to Mr Ashford’s needs. This will include the  Transport Accident Commission (TAC), Complex Psychology and any other service providers.

•   Disability Justice Coordination will arrange regular meetings with Mr Ashford to monitor his progress

•   Disability Justice Coordination has made a referral to Complex Psychology for a clinical psychologist to undertake a risk assessment that will provide further recommendations regarding treatment for Mr Ashford.

•   Disability Justice Coordination referred Mr Ashford to Specialist Forensic Disability Accommodation (SFDA) in July 2019 to assist with obtaining appropriate accommodation. Ms Jacqui Brown, clinical psychologist, recommends that SFDA will provide a structured, 24 hour staffed support model that is suited to Mr Ashford’s needs. The department understands that Mr Ashford will move into Nicholson House upon commencement of his NCSO. Nicholson House is an SFDA property with a 24 hour staffing model operated by the Australian Community Services Organisation (ACSO). 

•   As a resident of Nicholson House, Mr Ashford will receive assistance from ACSO staff to increase his independent living skills.

•   As a resident of Nicholson House, Mr Ashford will receive support from ACSO Clinical Services to develop a Behaviour Support Plan and to ensure staff working with him have strategies and supports to assist in managing his behaviours of concern.

•   Disability Justice Coordination will make a referral for a neuropsychological assessment to further inform Mr Ashford’s support needs.

•   Disability Justice Coordination has liaised with TAC and ACSO to ensure that Mr Ashford has support to increase his independent living skills funded through TAC and the National Disability Insurance Scheme (NDIS). 

I am a delegate of the Secretary to the Department of Human Services. Services are available for the care and treatment of the above named person.

Paul Smith
Deputy Secretary, West Division

Department of Health and Human Services

  Signed …………………………....Date 11/12/2019

TO *SUPREME / COUNTY COURT OF VICTORIA

In the matter of: Adam        Ashford