Director of Public Prosecutions v Fairest

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0115

DIRECTOR OF PUBLIC PROSECUTIONS

JAKE FAIREST

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	Special hearing: 29 September 2016, 3-28 October 2016 Disposition hearing: 23-27 March 2017
DATE OF RULING:	19 April 2017
CASE MAY BE CITED AS:	DPP v Fairest
MEDIUM NEUTRAL CITATION:	[2017] VSC 428

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CRIMINAL LAW — Special Hearing — Disposition under s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) following finding by jury at special hearing that the accused committed the offence of murder — Accused hearing impaired and intellectually disabled — Application of principles in ss 39, 40 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) — Custodial Supervision Order.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Dane QC with Ms Karen Argiropoulos	Office of Public Prosecutions
For the Accused	Mr David Gibson	Victoria Legal Aid

HER HONOUR:

Background to proceedings

On 28 October 2016, Warwick Toohey, Jake Fairest and Georgia Fields were each found by a jury at a special hearing to have committed the offence of murder. The prosecution of the case against Warwick Toohey was finally disposed of on 27 February 2017. He had been in custody at a prison prior to final disposition, at which stage he was committed to custody in the Intensive Residential Treatment Programme (‘IRTP’) under the auspices of the Disability Forensic Assessment and Treatment Service (‘DFATS’) facility managed by the Department of Health and Human Services (‘DHHS’).
In the matter of Mr Toohey, I recited the background to the matter that brought the three accused before the court. As the matters have now become separated I will repeat my recitation of some of that background in dealing with Jake Fairest.
On 15 February 2015, the three accused were arrested and charged with the murder of Robert Wright. The factual circumstances of the offence were outlined in the Crown’s opening for the special hearing. Although each of the three accused were initially remanded in custody, Mr Fairest and Ms Fields were later granted bail and remained on bail on this matter until the special hearing, throughout the special hearing and until now.[1] There was a brief interruption to Mr Fairest’s grant of bail when he was arrested on an unrelated matter and remanded in custody for a short period. On 1 July 2016, following an investigation under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’) into the three accused’s fitness to stand trial, Croucher J directed that the criminal proceedings brought on indictment against the three accused were to proceed as a special hearing under Part 3 of the Act. His Honour ordered that the charge of murder proceed as a special hearing within three months, as mandated by the Act.[2] His Honour’s reasons are contained in R v Fairest, Fields & Toohey (Rulings – Fitness to be tried).[3]
[1]Mr Fairest was granted bail on 29 July 2015.
[2]CMI Act, s 12(5).
[3][2016] VSC 329 (1 July 2016).
The special hearing procedure allows persons who are found unfit to be tried an opportunity to be acquitted of the alleged crime, or to be found not guilty on the grounds of mental impairment. Alternatively, a jury can find that the accused committed the offence charged.[4] In the event that the special hearing establishes that the charged offence has been committed, as occurred in this case, the court is obliged to either declare the person liable to supervision under Part 5 of the Act or release the person unconditionally.[5]
[4]CMI Act, s 17.
[5]CMI Act, s 18(4).
Following the jury findings that each of the three accused had committed murder, I declared each of them liable to supervision under s 18(4)(a) of the Act. I granted bail to Mr Fairest and Ms Fields, and remanded Mr Toohey in custody in prison pending the making of the said supervision orders.[6]
[6]DPP v Toohey, Fairest and Fields (Ruling No 2 – Liability for supervision and extension of bail) [2016] VSC 827 (4 November 2016).
Having declared Mr Fairest liable to supervision, the court made a request for reports and certificates of available services.[7] Having now obtained the requisite reports and certificates, it is appropriate that I make a supervision order under s 26 of the Act.
[7]CMI Act, s 19(d).
The court is imbued with a discretion as to whether the supervision order to be imposed should be a custodial supervision order (‘CSO’) or a non–custodial supervision order (‘NCSO’).[8]
[8]CMI Act, s 26(2).
Under s 26(4), the court must not make a supervision order committing a person to custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
Reports and Certificates
In considering the case of Mr Fairest I have received a number of reports prepared pursuant to s 41 of the Act.
The Department of Health and Human Services has filed a report prepared by Dr Lisa Warren, Clinical and Forensic Psychologist of Codeblack Threat Management.[9] This report was to make an assessment relevant to criteria in s 40(1) and s 41(1) of the Act.
[9]Report of Dr Lisa Warren, 11 December 2016, tendered as Prosecution Exhibit 3 on Disposition, 4 March 2017.
DHHS also filed a report prepared by Yvonne Maxwell, Provisional Psychologist employed at DFATS.[10]
[10]Report of Yvonne Maxwell, 5 January 2017, tendered as Prosecution Exhibit 7 on Disposition, 27 March 2017.
A section 47 certificate of available services prepared by DHHS in respect of Jake Fairest accompanied their reports.[11] The certificate of available services states that services can be provided by DHHS to Mr Fairest whether he is subject to a CSO or a NCSO.
[11]Certificate of Available Services, signed by Jill Gardener, 12 January 2017.
A further letter of clarification was provided by DHHS on 10 February 2017.[12] That letter was provided in response to a request by Mr Gibson of counsel, representing Mr Fairest, seeking further particulars of services available to his client should a NCSO be imposed.
[12]Letter of clarification signed by Louise Gallagher, Divisional Liaison, DFATS, and Tiffany Carroll, General Manager, DFATS. Tendered as Prosecution Exhibit 2 on Disposition, 23 March 2017.
Reports and certificates were also received from Forensicare pursuant to s 41 of the Act. A report was prepared by Dr Neil Wareing dated 13 February 2017[13] and it was accompanied by a s 47 certificate of available services.[14] Dr Wareing identified no history of mental illness, and no evidence of mental illness. The certificate stated that in light of Dr Wareing’s assessment, there are no available services for Mr Fairest which can be provided by Forensicare through an inpatient admission to Thomas Embling Hospital or in the community.
[13]Report of Neil Wareing, 13 February 2017, tendered as Prosecution Exhibit 6 on Disposition, 27 March 2017.
[14]Certificate of Available Services, signed by Maurice Magner, psychiatrist, and Tom Dalton, delegate of the Secretary to the Department of Health and Human Services, 16 February 2017.
In addition to the reports and certificates filed at the request of the court pursuant to s 41 and s 47 of the Act, a report was filed by solicitors acting on behalf of Mr Fairest from Dr Dion Gee, Forensic Psychologist, dated 4 March 2017.[15]
[15]Report of Dion Gee, 4 March 2017. Tendered as Defence (Fairest) Exhibit 1 on Disposition, 23 March 2017.
There had been some delay in the finalisation of the matter for Mr Fairest whilst the Forensicare report and the report of Dr Gee were obtained.
As well as the reports filed by the parties after the finding brought down by the jury in the special hearing, the court had available a large body of material which was provided for the earlier fitness hearing that took place before Croucher J in respect of Mr Fairest and also in respect of previous bail hearings referable to him.[16]
[16]R v Fairest, Fields & Toohey (Rulings – Fitness to be tried) [2016] VSC 329 (1 July 2016); Transcript (Application for Bail; Jake Fairest, Weinberg JA) 29 July 2015; Transcript (Application for Revocation of Bail, Jake Fairest, Weinberg JA) 20 April 2016.
Much of this material was canvassed by the authors of the expert reports supplied for the disposition phase of this matter. I have paid regard to this material, especially that which indicates the level of disability suffered by Mr Fairest.
The court received oral evidence relevant to the disposition of Mr Fairest from Dr Dion Gee, Dr Lisa Warren, Ms Louise Gallagher, Mr Rick Bonneville (father of Jake Fairest), Ms Yvonne Maxwell and Dr Wareing. In addition Mr Gibson directed some questioning to Ms Jane Arnett of DHHS who was primarily called by the Crown for the matter of Ms Fields.
Mr Fairest’s role in the offence of murder
The evidence relevant to Mr Fairest’s disposition includes that he was found by a jury to have committed the offence of murder in circumstances where he participated in AUSLAN discussions on a train and in a lift with his two co-accused about causing the death of Robert Wright by various means. Mr Fairest participated in the events leading to Robert Wrights death and was fully complicit in the actions of his co-accused. After Robert Wright was pushed from the balcony, Mr Fairest used Robert Wright’s credit card information to transfer money into an online phone account to enable him to access to online games.
During infancy, Mr Fairest was diagnosed as hearing impaired and attended a school for deaf children from the age of 3½ years. In 1996 he was diagnosed with a brain tumour and at the age of seven the tumour was operated on and radiation and chemotherapy were employed. In remission from cancer it was found that Mr Fairest had acquired brain injury involving his endocrine system and cognitive abilities.
As well as his intellectual disability, Mr Fairest is also profoundly deaf. Dr Gee in a comprehensive report summarised Mr Fairest impairments in this way:
Consistent with Mr Fairest’s general presentation, past assessments have noted that he fulfils the criteria of ‘Intellectual Disability at the mild to moderate level—albeit more toward the moderate end of the continuum—with greater limitations in all cognitive functions associated with language’; with it being his Full-Scale IQ was in the Extremely Low range (59: 56-64 at 95% confidence interval). More recent neuropsychological investigation noted two broad aspects to his ABI; that is, a significant memory disorder commensurate with an Amnesic Syndrome (that also comprises of confusion, confabulation, poor organisation, and the rapid forgetting in some situations), and dysfunction within the executive system consistent with Dysexecutive Syndrome at the moderate to severe level (including, failure to learn through repetition, inflexible thinking, very poor self-monitoring, impulsivity, minimal perspective taking/consequential thinking, compromised planning and execution, and limited attention and concentration skills).[17]
[17]Report of Dion Gee, 4 March 2017, above n 15, [19].
Dr Gee also noted that Mr Fairest has ongoing medical needs due to lack of pituitary functioning, lack of spinal growth and growth hormone deficiency.[18]
[18]Ibid [20].
Justice Croucher noted in his findings that Jake Fairest was unfit to stand trial that:
In his evidence before the jury, Professor Daffern said that there is no evidence that Mr Fairest’s intellectual disability will improve over time. Rather, it is likely that his disability is permanent. Professor Ogloff gave similar evidence. He pointed out that testing in 2001, 2003, 2007 and in 2015 revealed that there had been no improvement in Mr Fairest’s condition over time.[19]
[19]R v Fairest, Fields & Toohey (Rulings – Fitness to be tried) [2016] VSC 329 (1 July 2016), [13].
Nevertheless, the Crown argue that in spite of the disabilities Mr Fairest suffers, there are some aspects of the offending that should not be overlooked. The Crown argued that on the evidence, Mr Fairest was an active participant in the planning and execution of the offence, he showed minimal insight into his role in the offending[20] and continued to blame his co-offenders.[21] These submissions were responsive to the defence’s position[22] that Mr Fairest’s role was a lesser role than that of the co-accused.
[20]Report of Dion Gee, above n 15, [54].
[21]Report of Yvonne Maxwell, above n 10, [14].
[22]The defence position was communicated in cross-examination of witnesses called during disposition hearings.
In my view, there is not a great deal to distinguish the role of Mr Fairest from his co-offenders in the carrying out of the offence, although I accept that he was less active in the planning and, on one view, had less motivation for the offence than Mr Toohey and Ms Fields. It is open to conclude that he was influenced by the group dynamic in which he found himself. It is also my assessment that the circumstances in which the three accused came to be thrown together and developed their plans were very unusual. One aspect which appears significant is that in spite of the profound disabilities and impairments suffered by all three offenders, they were largely unsupervised when away from home. Unlike Mr Toohey, Mr Fairest still resided in the family home with his father, but his father was in receipt of scant support in managing his son once his son finished schooling.
Circumstances of Mr Fairest since his arrest
The conduct of Mr Fairest after he was released on bail was referred to in the expert reports.[23] Mr Fairest attracted charges for offences allegedly committed on 25 March 2016 arising from an altercation on a train. This led to a brief period on remand on the new charges and an application by the Crown for a revocation of bail on the charge of murder.
[23]Report of Dion Gee, above n 15, [22]-[25]; Report of Lisa Warren, above n 9, [10], [79]; Report of Neil Wareing, above n 13, [12]-[13].
After considering the Crown application to revoke bail in April last year, Weinberg J permitted bail to continue. His Honour accepted that there was an aspect of misunderstanding that had led to the altercation on the train between Mr Fairest and others, that made the alleged offending less serious. Mr Fairest’s other prior matters were of a low order of seriousness.
The original reasons of Weinberg JA for granting bail summarised the negative effects and poor response to imprisonment suffered by Mr Fairest following his arrest on the charge of murder.[24] Mr Fairest had been experiencing bullying from other prisoners; and an affidavit from Mr Brendan Money of Corrections Victoria noted that he had been housed in protection in a single cell with limited time out of his cell in order to protect him from other prisoners.[25] Mr Money’s affidavit also stated that, unlike prisoners who can hear, Mr Fairest was not able to absorb the prison culture and regime or communicate effectively within the prison environment.
[24]Transcript (Application for Bail, Weinberg JA), 29 July 2015. Justice Weinberg described the basis for bail at that time as compelling.
[25]Affidavit of Brendan Money, sworn 22 July 2015.
Impact on the family
The reports of family members were received under s 42 of the Act. Section 42 reports of family members of the victim or of the offender are furnished to the court to assist in the ‘counselling and treatment processes for all people affected by an offence’ and to assist the court in determining any conditions it may impose on an order made in respect of a person under the Act.[26] These reports are to ‘contain the views of the family member or victim on the conduct of the person and the impact of that conduct on the family member or victim.’[27] I have received and taken into account relevant portions of the reports from the family of Robert Wright pursuant to s 42.[28] As will be apparent in these reasons, I also received evidence from the father of Mr Fairest, Mr Rick Bonneville.
[26]CMI Act, s 42(1)(a) and (b).
[27]CMI Act, s 42(2).
[28]Joseph Wright, Brendan Wright, Karen Wright and Lee Ann Power, each of whom are victims of the offence committed in respect of Robert Wright. Joseph Wright is the father of Robert Wright, and Brendan Wright, Karen Wright and Lee Ann Power are siblings of Robert Wright.
The death of Mr Wright caused enormous suffering to his family and loved ones. The court acknowledges the traumatic loss they experienced as a result of the offending in this case and their understandable concern that the community be protected from future harm by Mr Fairest and his co-offenders.
Statutory criteria under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
In considering the appropriate disposition, and following my decision to declare Mr Fairest liable to supervision, the court is not engaging in a process of sentencing. A finding under s 17(1)(c) of the Act that the accused committed the offence charged constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates.[29] The jury's finding is not equivalent to a finding of criminal responsibility in a criminal trial.
[29]CMI Act, s 18(3).
Upon reviewing the reports filed with the court relevant to Mr Fairest’s disposition, I must apply the principles and considerations set out in ss 39 and 40 of the Act. Section 39 is as follows:
Principles to be applied:
(1)In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) sets out:
Matters to which the court is to have regard
(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(a)the nature of the person's mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
Custodial Supervision Order (‘CSO’) or Non-Custodial Supervision Order (‘NSCO’)
Mr Gibson submitted a NCSO should be imposed in the case of Mr Fairest, with his client remaining at his bail address with his father and receiving case management support from DHHS or DFATS. He submitted that this was the best way of managing his client’s future risk of offending under the available options canvassed in the expert evidence. Mr Gibson placed heavy reliance on the evidence of Dr Gee and Dr Wareing and argued that the combined effect of their evidence was that Mr Fairest’s risk of re-offending is low-moderate to moderate. He argued that Mr Fairest’s risk is better managed in the community either in a residential facility[30] or with his father, rather than at DFATS, and that his risk of reoffending is potentially increased by placement at DFATS. He argued that the expert evidence did not support placement in a secure facility as a preferable alternative to placement in the community with appropriate support services.
[30]Although no specific residential facility was nominated as suitable or available.

He submitted that the provisions in the Act need to be considered in light of NOM v Secretary to the Department of Justice & Ors[31] in which the Court of Appeal discussed the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in the context of an application to revoke a supervision order:
A supervision order is not a sentence or a punishment but treatment. A person subject to such treatment, such as the appellant, is found ‘not guilty’ of any crime on account of his mental impairment, and on that basis, there is no justification or imposition of any punishment. However, in another sense, the logical structure of the principle of parsimony has some resonance in this case. A supervision order, be it custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with the person’s freedom and autonomy. So much is clear from various remarks during the Parliamentary debates on the Bill to the Act, including more specific comments that ’no person should be deprived of their liberty unless it is absolutely necessary’.[32]
[31](2012) 38 VR 318.
[32](2012) 38 VR 318, [68].
Mr Gibson submitted that the difference between a CSO and a NCSO is stark since, like a prison, DFATS is a secure facility which would involve Mr Fairest being locked up with a criminal cohort, representing an absolute imposition on his liberty. He submitted that this is inconsistent with the principle of parsimony. He argued that if the evidence shows that Mr Fairest’s behaviour can be managed in the community with appropriate supports, then the principle of parsimony requires that he be placed on a NCSO.

The Crown argued that the disposition imposed on Mr Fairest must be one which caters to his needs as well as balancing risk to himself and the community. They submitted that the appropriate disposition was a CSO under which Mr Fairest would be committed to custody in an appropriate place. The Crown referred to the s 47 certificate of available services which indicates that placement in DFATS is available and that Mr Fairest satisfies the criteria for admission to the IRTP. Although the DFATS facility currently houses Mr Toohey as a result of orders I made in his case, according to the plan put forward each would be housed in separate units in the IRTP.

It was submitted by the Crown that a CSO committing Mr Fairest to DFATS is the least restrictive and most appropriate option having regard to all of the circumstances, including:

(a) The seriousness of the offence that Mr Fairest has been found to have committed;

(b) His treatment needs;

(c) The risk he poses to the community; and

(d) The appropriateness of the IRTP at the DHHS-run DFATS facility having regard to the above matters.

Dr Gee has specialist expertise in the field of disability services in the forensic setting.[33] He described intellectually disabled people as a unique subset when it came to employing actuarial risk assessments and said that he had to adapt the existing risk assessments using his professional judgment. He said the Armidilo-G[34] test deals specifically with manageability of risks for intellectually disabled people, but none of the risk assessment tools are normed for hearing impaired people. The LS/RNR[35] test initially assessed Mr Fairest as high risk, but when clinical override was used to adjust for his disabilities and understanding of concepts, his risks were found to be moderate for general re-offending. The HCR-20[36] was adapted with the intellectual disability guidelines to ensure that it was able to meet the specific variables, and according to this adaptation, Mr Fairest was found to have low to moderate risk. There was discrepancy between his desire to commit offending, which was low, and other variables, which made him moderate risk. Protective factors were also an important consideration in assessing risk.[37]
[33]Since 2000, Dr Gee has specialised in forensic mental health within Australia and the UK; received post-doctoral training in the assessment, intervention, and risk management of diverse populations (both offending and non-offending), and has expertise in areas including the assessment and risk management of violence/ sexual violence, cognitively/ intellectually impaired individuals, offenders with personality disorders, and those offenders presenting with impaired mental functioning.
[34]“Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend – Generally”.
[35]“Level of Service/Risk, Need, Responsivity”.
[36]“Historical, Clinical, Risk Managament-20”
[37]Transcript, 23 March 2017, p 41.
In terms of whether he might act the same way again in the future under similar circumstances, Dr Gee said Mr Fairest knows no other way to act.[38] The social environment in which the offending behaviour occurred was the influencing factor.
[38]Ibid, p 49.
Dr Gee opined that there were reasons for and against sending Mr Fairest to the facility at DFATS. He thought that DFATS would have the resources to manage Mr Fairest so long as they tailor his programs for individual therapy. He would not be able to function in a group therapy program and there would be challenges associated with accessing appropriate educational resources, but DFATS is the leading agency for treating people with an intellectual disability and has the best resources at this time. However, Dr Gee opined that it is necessary to have an extraction plan if things were to go wrong.
He also opined that in his current setting the burden placed on Mr Fairest’s father to manage him was quite high and that Mr Fairest still needs treatment. Mr Fairest needs to be in an environment where he can learn life skills. His current living circumstances provide a very low degree of protection against future risk. When under pressure and in an environment which is beyond his capacity to manage, he poses a risk. Unless he is provided with protective factors to build up his resilience, he will maintain his current risk rating.
Dr Gee also opined that imprisonment would cause a deterioration in Mr Fairest’s functioning as shown by the period on remand.
Mr Gibson relied on the report from Dr Gee which also considered Mr Fairest’s current level of risk within a community-based home setting as in the moderate range, but allowed that a NCSO could afford Mr Fairest the opportunity to access supports and intervention services to reduce risk. Mr Gibson pointed out that Dr Gee raised a concern that a secure placement may cause a deterioration in mental health and that while some of these concerns might be ameliorated in a specialist environment such as DFATS there was a concern about the profile of the other residents at DFATS.
Mr Gibson also referred to Dr Gee’s evidence that Mr Fairest does not have entrenched anti-social attitudes or cognitions but is a vulnerable person who could be seduced into behaviours in the future. Also, the home environment is a protective factor against a future relapse into violence. Whilst DFATS has the resources to manage his therapeutic treatment, Mr Fairest presents as vulnerable in comparison to the cohort at DFATS.
The Crown referred to the evidence of Dr Gee and argued that it supported a concern that Mr Fairest posed a moderate risk of reoffending ‘in any form in any way across the board’ and a low to medium risk of violent reoffending.[39]
[39]Ibid 40, 45.
The Crown pointed out that Dr Gee said that Mr Fairest’s need for treatment, intervention and monitoring is quite high, and that Mr Fairest’s current routine living at home is not sufficient to reduce his risks to a level that is adequate. He requires tailored interventions by a multitude of people.
The Crown referred to Dr Gee’s evidence that although the best placement would be a residential facility with a non-criminal cohort, ‘unfortunately we may struggle to find the best placement in this case.’ Also that Dr Gee’s report recommended a range of treatment needs including:

(a) Engagement in a suitably tailored violent offenders’ intervention program;

(b) A program of intervention around social skills, social communication, relationship skills and intimate relationships;

(c) Psychological intervention to increase his capacity for emotional and behaviour regulation; and

(d) Helping him to establish a stable platform from which to advance future rehabilitation.[40]

[40]Report of Dion Gee, above n 15, [61].

Ms Maxwell gave evidence in accordance with her report and opined that, within Mr Fairest’s current environment, his risk for future general or violent offending is considered to be moderate.[41] She said she used two risk assessment tools: the Armidilo-G and the HCR-20 V3. She reported several factors that increased his propensity for serious harm to another person, including an anti-social peer group, poor problem solving skills, social skills deficits, poor perspective taking and complete externalisation of responsibility.[42]
[41]Report of Yvonne Maxwell, above n 10, [59].
[42]Ibid.
Ms Maxwell said that individual treatment could be given to Mr Fairest at DFATS appropriate to his needs. Asked about the risk of contact with Mr Toohey at DFATS she said if they were at school together there would be supervision. If Jake Fairest were admitted to the IRTP, treatment plans would be compiled within twenty days and supervision would be put in place to deal with any risk of harm to Jake Fairest or his co-offender arising from any exposure to one another.
Ms Maxwell explained that although the risk assessment tools showed a moderate risk of re-offending, her report referred to serious risk because, with Mr Fairest’s outstanding treatment target, there is a potential for serious risk of harm to another person in the absence of therapeutic intervention.[43]
[43]Report of Yvonne Maxwell, above n 10, [59]. The overall assessment of risk was linked to the criteria listed in s 152 Disability Act 2006 that are relevant to admission to DFATs: see [57].
Under cross examination she accepted that Mr Fairest was a person who was susceptible to bad influences and that many of the clients at DFATS are there for sex offences and violence offences. She said she could not comment on other options available under a NCSO. She said that at DFATS there is a disability support worker and clinical support worker available to clients 24 hours a day.
She said Jake Fairest had a number of risk factors that needed to be addressed, such as lack of perspective-taking skills and relationship skills, cognitive distortions, self-efficacy and lack of community support.[44] He was also at risk of anti-social influences, and that the opportunities to address risk factors whilst living within the community may be less intensive than the therapeutic environment offered at DFATS. At DFATS most of Mr Fairest’s interventions would be individualised.
[44]Report of Yvonne Maxwell, above n 10, [56].
The Crown relied on Ms Maxwell’s evidence as indicating the need for treatment targets to be met and that DFATS’ community service generally provides a less intensive intervention whereas her assessment was that Mr Fairest was suitable for a more intensive therapeutic intervention at DFATS.[45]
[45]Ibid 224.
Dr Wareing was called and adopted his report.[46] He found Mr Fairest to have no mental health problems. His capacity to learn was inhibited by his intellectual disability, but he still had some capacity to learn. Mr Fairest has a long standing vulnerability to be susceptible to bad influences. He testified that he had not read the report of Dr Dion Gee and did not know Dr Gee.
[46]Report of Neil Wareing, above n 13.
Various aspects of Dr Wareing’s evidence were relied on by Mr Gibson but the difficulty with this approach was that Dr Wareing had not read the reports of Dr Gee, Dr Warren and Ms Maxwell, and said he did not have any familiarity with the DFATS facility. He had not performed formal risk assessments on Mr Fairest. Dr Wareing was asked whether the risk of re-offending could be managed within the community and agreed that it could be but his evidence on that topic had less weight in light of the more limited information upon which the opinion was based.
Louise Gallagher gave evidence about the DFATS facility. She noted that at DFATS each client has a treatment plan, a clinician and a psycho-educational trainer, and that the clinician works with offence specific treatment. Parkville College provides adult education for people in the facility, including reading, sports, music and art—similar to secondary school—and that Parkville College is looking to adapt itself for deaf students with the help of VicDeaf.
Mr Gibson relied on evidence from Ms Gallagher as to services available through DFATS for disability clients in the community.
The Crown referred to Ms Gallagher’s evidence of the programs available at DFATS and the steps being taken with VicDeaf to communicate with residents who are hearing impaired (including the investigation of iPad use to aid communication). She said Mr Fairest would reside in a unit separate to his co-offender, although they would be together during the day in a supervised classroom environment. Individual treatment would be provided if a clinical decision was made concerning the unsuitability of group treatment.
Dr Lisa Warren, clinical and forensic psychologist at Codeblack Threat Management, gave evidence and adopted her report which dealt in detail with criteria under s 41 of the Act.[47] Dr Warren referred to Mr Fairest's needs for intervention with regard to communication skills, decision-making, social skills and other supports.
[47]Report of Lisa Warren, above n 9.
Under cross-examination by Mr Gibson, she opined that Mr Fairest’s father was a supportive man who had not been traditionally aware of all of his son’s activities. Her overwhelming impression of Jake Fairest was that he was a generally affable person who was susceptible to peer pressure, and that with his personality type he could give in to pressure from others, regardless of who was pressuring him.
It was Dr Warren’s opinion that it may be better for his ongoing therapeutic progress to be in a structured environment especially if there were protections afforded to him. In the past when he has been in public, people have sought to use him and do harm to him, and he sometimes does not know when he is annoying others. He needs to develop his interests and daily routines and learn to manage anger and impulses. This needs to be done on an individual basis in a structured and modified way. Structured modified employment would be of benefit to him.
The Crown relied on Dr Warren’s suggestion of the need for a management plan based around: daily living needs, development of a purposeful routine, and skills training and the provision of offence specific treatment.[48]
[48]Ibid [61]-[81].
Jan Arnot, unit manager of Disability Client Services with DHHS, gave evidence primarily about Ms Fields but she was asked by Mr Gibson about options for non-custodial support given that Mr Fairest was also client of Disability Services. She said DHHS would look at creating a care team around him if required.
Mr Bonneville, the father of Mr Fairest, gave evidence and said that Mr Fairest resides with him and was residing with him at the time of the offending. Mr Bonneville has been looking after Mr Fairest for the past 16 years because Mr Fairest’s mother had a mental health problem. He said he had an excellent relationship with his son, who was generally responsive to his direction, despite some occasional altercations between them. He said that his son has managed reasonably well on the current bail conditions but that in Mr Bonneville’s view he does need more structure in his life.
Mr Bonneville was worried about his son going into a secure environment with other offenders. He was also worried about whether he would have sufficient opportunity for visits to his son and whether this might be more difficult because of schooling. If Mr Fairest was placed on a NCSO, Mr Bonneville would continue to do his best to look after his son.
However, Mr Bonneville expressed that he felt relieved that his son would finally get help for his intellectual disability and explained the lack of support available to assist him looking after Mr Fairest in the past. He was asked about an individual program for Mr Fairest’s needs and a case worker cooperating with VicDeaf, caring for him professionally and he said he has never had that for the intellectual disability, only for the deafness. He accepted that there were some positive aspects in what was offered at DFATs under a CSO, although he also expressed concerns about his son’s exposure to Warwick Toohey.
Conclusion
In considering the evidence in this case, it is readily apparent from all of the materials before me that Jake Fairest needs a structured program which offers effective support both for his deafness and his intellectual disability, and that he did not have this at the time of the offending.
Jake Fairest’s loving father has contributed a great deal of care and support to his son over many years with little structured assistance from outside agencies. The time has come for Mr Fairest’s needs and risks to be properly addressed in a way which will offer protection for him and for the community in the future. Mr Fairest’s vulnerability to manipulation by others and his outstanding treatment needs should be addressed through the intensive treatment that is available at DFATS.
The breadth of services available in the custodial placement at DFATS appears on the evidence to provide a preferable option to that which is presently available through DHHS in non-custodial setting with Mr Fairest residing with his father. No other specific community placement was put forward as a realistic possibility at the present time. I accept that if a NCSO were imposed, a care plan would be devised for Mr Fairest, but my concern is that it would not offer the same level of intensive supervision, monitoring, therapy, education and support that a CSO at the IRTP appears to offer.
Consideration should be given by DHHS to bringing the matter back before the court under the Act if Mr Fairest needs in the future to be extracted from the IRTP, as adverted to by Dr Gee. I will fix a review period of 12 months in light of the concerns expressed by Dr Gee.
Mr Gibson at various stages of the disposition proceedings after the jury’s findings sought to make arguments about parity of treatment with Ms Fields whose case is yet to be disposed of. However, I do not think that those arguments are apt in light of the unique circumstances of this case and the legislative provisions I am required to apply.
Mr Fairest has been subject to very onerous bail conditions and has been assisted by his father throughout his journey through the criminal justice system. This has placed a great burden on Mr Bonneville, although I accept that he willingly shouldered that burden.
In consideration of the reports obtained and viva voce evidence, together with the background to the offence, Jake Fairest's individual treatment needs demonstrate that the DFATS facility is the best available option, balancing his needs with future risk to himself and others and taking into account the principle of parsimony[49] and the matters set out in s 40(1) of the Act.
[49]CMI Act, s 39.
I conclude that I should commit Mr Fairest to custody at the IRTP at DFATS. I therefore impose a custodial supervision order under s 26(2)(a)(i) of the Act. As per s 27(1), the order will stand for an indefinite period, however I set a nominal term of twenty five years.[50] I further order that Mr Fairest be brought back for review after 12 months.[51]
[50]CMI Act, s 28(1).
[51]CMI Act, s 27(2).

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[2017] VSC 428

19 April 2017