Director of Public Prosecutions v Fields
[2017] VSC 530
•6 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0120
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGIA FIELDS |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Special hearing: 29 September 2016, 3-28 October 2016 |
DATE OF RULING: | 6 September 2017 |
CASE MAY BE CITED AS: | DPP v Fields |
MEDIUM NEUTRAL CITATION: | [2017] VSC 530 |
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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 profoundly deaf and intellectually disabled — Application of principles in ss 39, 40 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) — Non-Custodial Supervision Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Dane QC with Ms K Argiropolous | Office of Public Prosecutions |
| For Georgia Fields | M P Kilduff | Stary Norton Halphen |
HER HONOUR:
On 28 October 2016, Georgia Fields, along with two co-accused Warwick Toohey and Jake Fairest, were found at a special hearing under Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the CMI Act’) to have committed the offence of murder. I declared Fields, Toohey and Fairest liable to supervision under s 18(4)(a) of the CMI Act.[1] The matters of Mr Toohey and Mr Fairest have been disposed of under Part 5 of the CMI Act, and they have each been committed to the custody of the Department of Health and Human Services (‘DHHS’) under the Disability Forensic Assessment and Treatment Service (‘DFATS’). [2] I will now address the disposition of Ms Fields.
[1]DPP v Toohey, Fairest and Fields (Ruling No 2 – Liability for supervision and extension of bail) [2016] VSC 827 (4 November 2016).
[2]DPP v Toohey [2016] VSC 825 (27 February 2017); DPP v Fairest [2017] VSC 428 (19 April 2017).
Ms Fields was charged with the murder of Robert Wright on 12 February 2015.
On 15 January 2015, Mr Robert Wright was pushed from the balcony of his second-floor apartment at approximately 9.40 pm, and fell to his death. Mr Wright had been sharing a two-bedroom apartment with Mr Toohey. Mr Toohey was friendly with his co-accused Mr Fairest and Ms Fields. He appears to have been involved in an intimate relationship with Ms Fields. There was a build-up of tension between Mr Toohey and Mr Wright in the lead up to the offending. There was also evidence of a plan to kill Mr Wright which evolved over a period of time. In February 2014, Mr Toohey, Mr Fairest and Ms Fields were noticed on a city-bound train at Ringwood discussing amongst themselves in Auslan possible ways in which a person could be killed. This conversation was witnessed by Michelle O’Neill who knew the three accused from past association with the Victorian College for the deaf.
On 15 January 2015, CCTV footage gathered from a Ringwood bound train and from inside the foyer and lift of the building where Mr Wright lived with Mr Toohey showed further conversations in Auslan between the three co-accused about bringing about the death of Mr Wright by causing him to fall down. When the three accused entered the apartment, Mr Wright was confronted and subsequently pushed over the balcony. He fell a distance of approximately 12 meters. Mr Wright suffered catastrophic head injuries and cardiac arrest and died a short while later at the Royal Melbourne Hospital. Following the offence, the three accused entered Mr Wright’s bedroom and took an ipad, and several cards from Mr Wright’s wallet. Ms Fields ultimately admitted involvement in the preparatory discussions and told police that the two male co-accused pushed the deceased off the balcony. She made a number of significant admissions. The Crown have submitted that Ms Fields was an active participant of the planning and execution of the offence, and I agree with that submission.
Ms Fields was remanded in custody at the Dame Phyllis Frost Centre on 13 February 2015 until her successful application for bail before Kaye JA on 24 June 2015.[3] The Crown filed for revocation of bail in April 2016 following a series of breaches including travelling interstate, contacting another female online, and allegedly breaking into her old school to steal Ipads. On 20 April 2016, Weinberg JA found it appropriate to further extend bail and imposed more stringent conditions.[4] Ms Fields breached her bail conditions on one occasion since the start of substantive proceedings. This was when she went to the Royal Melbourne Show with Mr Fairest on 17 September 2016. There have been no breaches of bail for almost 12 months.
[3]In the matter of an application for bail by Georgia Fields [2015] VSC 309 (24 June 2015).
[4]Transcript (Application for Bail, Weinberg JA), 29 July 2015.
Ms Fields appeared before Croucher J in May and June 2015 for an investigation before a jury to determine her fitness to be tried under Part 2 of the Act. On 1 July 2015, the jury declared Ms Fields unfit to stand trial. His Honour held that she was unlikely to become fit within 12 months,[5] and ordered a special hearing to commence within three months from that date.[6]
[5]Crime (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 11(4)(a). (‘CMI Act’).
[6]CMI Act, s 12(5). See, R v Fairest, Fields & Toohey (Rulings – Fitness to be tried) [2016] VSC 329 (1 July 2016).
The special hearing took place before me in September and October, whereby a jury returned the finding on 28 October 2016 that Ms Fields had committed the offence of murder.[7] A jury’s finding at a special hearing is not the equivalent to a finding of criminal responsibility in a criminal trial. It is a qualified finding of guilt, and does not serve as the basis in law for any conviction for the offence.[8]
[7]CMI Act, s 17(1)(c).
[8]CMI Act, s 18(3)(a).
Following the finding by the jury, I declared Ms Fields liable to supervision and I further extended her bail.[9] I must now make a supervision order under Part 5 of the CMI Act to either commit Ms Fields to custody by making a Custodial Supervision Order (‘CSO’), or release her on conditions specified in a Non-Custodial Supervision Order (‘NCSO’).[10]
[9]CMI Act, s 18(4)(a).
[10]CMI Act, s 26(2).
I have read, heard and considered family and victim reports submitted under s 42 of the Act. Reports filed under s 42 of the CMI Act are submitted by family members of the victim or of the offender, for the purposes of assisting counselling and treatment processes for those affected by an offence; and for assisting the court in determining any order made under the Act with respect to the offence.[11] I received reports from family members of Robert Wright, including reports from Joseph Wright, Brendan Wright, Karen Wright and Lee Ann Power.[12] Joseph Wright is the father of Robert Wright, and Brendan Wright, Karen Wright and Lee Ann Power are siblings of Robert Wright. I also received a report from Mr Doug Fields, the father of Georgia Fields.[13]
[11]CMI Act, s 42.
[12] Tendered as Prosecution Exhibit 4 on Disposition, 24 March 2017.
[13]Tendered as Defence (Fields) Exhibit 1 on Disposition, 24 March 2017.
The reports demonstrate the pain and loss suffered by Mr Wright’s family as a result of his untimely death, and express their appreciation for Mr Wright’s accomplishments during his life.
Prior to making a supervision order, the court requested a certificate of available services under s 47 of the Act, from DHHS and from the Victorian Institute of Forensic Mental Health (‘Forensicare’) and reports on the mental condition of Ms Fields under s 41 of the Act also from DHHS and Forensicare.
The court has now received a s 47 Certificate of Available Services from DHHS;[14] and a s 47 Certificate from Forensicare.[15] In addition, the court has received a s 41 reports from Pamela Matthews, Forensic Psychologist commissioned by DHHS, dated 8 December 2016;[16] a s 41 report filed by Dr Danny Sullivan, Forensic Psychiatrist at Forensicare, dated 14 February 2017;[17] and report of Yvonne Maxwell, Clinician at DFATS, dated 5 January 2017.[18] In addition, I have received a document titled “Proposed Treatment Plan and Conditions” authored by Ms Del Aulich, Acting Manager for Individual and Family Support at DHHS, dated 17 July 2017;[19] an addendum report to the Supreme Court prepared by Ms Del Aulich, dated 24 August 2017, and an ERMHA (mental health care service provider) Support Provision Quote 2017.[20]
[14]Section 47 Certificate of Available services, signed by Jill Gardener, delegate of the Secretary to the Department of Health and Human Services on 16 December 2017.
[15]Section 47 Certificate of Available services , signed by Maurice Magner and Tom Dalton on 16 February 2017.
[16]Tendered as Prosecution Exhibit 1 on Disposition, 23 March 2017.
[17]Tendered as Prosecution Exhibit 5 on Disposition, 27 March 2017.
[18]Tendered as Prosecution Exhibit 7 on Disposition, 27 March 2017.
[19]Tendered as Prosecution Exhibit 11 on Disposition, 6 September 2017.
[20]Tendered as Prosecution Exhibit 13 on Disposition, 6 September 2017.
At an earlier stage of proceedings, the court received a letter from Louise Gallagher, Divisional Liaison at DFATS, dated 10 February 2017;[21] an affidavit from Mr Brendan Money, Sentencing Manager at Corrections Victoria, sworn 27 March 2017. [22]
[21]Tendered as Prosecution Exhibit 2 on Disposition, 23 March 2017.
[22]Tendered as Prosecution Exhibit 9 on Disposition, 24 July 2017.
In addition to written reports, I heard evidence from Doug Fields, father of Ms Fields; Kristy-Lee Fields, sister of Ms Fields; Dr Danny Sullivan, psychiatrist; Pamela Matthews, psychologist and Louise Gallagher and Jan Arnot of DHHS. The hearing in which evidence was called by the parties relevant to disposition took place over three days, from Thursday, 23 March 2017 to Monday, 27 March 2017. I also received written submission from the Crown in favour of a CSO,[23] and from counsel for Ms Fields in favour of a NCSO.[24]
[23]Outline of Prosecution Submission Regarding Disposition, filed by email 5 September 2017.
[24]Outline of Submissions for a Non-Custodial Supervision Order, filed by counsel for Ms Fields on 10 March 2017; 1 September 2017.
While the two co-accused in this matter, Jake Fairest and Warwick Toohey, received custodial supervision orders and were placed under the care of the DFATS Intensive Residential Treatment Services, there are no equivalent non-prison services or residential treatment facilities available for females with special needs such as those experienced by Ms Fields.[25] Further, the s 47 Certificate of Available Services issued by Forensicare on 16 February 2017, stated that there are no appropriate treatments or services that Forensicare could provide to Georgia Fields, as she does not meet the criteria for admission to that facility. Therefore the only CSO option that is available to the court would be to commit Ms Fields to the custody of a prison. In practical terms that means Dame Phyllis Frost Centre where Ms Fields was remanded prior to being placed on bail.
[25]Reference is made to the Certificates of Available Services cited above in fn 14 and fn 15.
In making a determination I am obliged to apply s 26(4) of the CMI Act: the court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances
In light of the evidence before me, and in consideration of the principles listed in s 40 of the Act, as well as the restraint imposed under s 26(4) and the principle of parsimony in s 39(1) of the Act I have determined that there is a practicable alternative to imprisonment and that the most appropriate disposition for Ms Fields is a Non-Custodial Supervision Order with strict conditions, supervision, monitoring and support from DHHS.
The matters to which I must consider in deciding to make an order under Part 3 of the CMI Act are as follows:[26]
[26]CMI Act, s 40(1).
(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.
In light of the abovementioned criteria I have considered the s 41 reports as to the diagnosis and prognosis for and behavioural problems of Ms Fields, her responses to treatment therapy, or counselling and the suggested treatment plan that has been prepared for her. I have also given weight to the s 42 reports received in this matter.
Georgia Fields is a 21 year old woman with profound neural deafness and a diagnosis of atypical autism. She has borderline intellectual functioning, with a total IQ of 75 at most recent assessment; and adaptive behaviour functioning levels that fall below the 1st percentile compared to others of the same age. She is reported to demonstrate borderline personality traits, self-harming behaviours, anxiety, depression, suicidal ideation, and anger management issues. She has a history of complex behavioural issues and demonstrates sexualised behaviours of concern.
Ms Fields was diagnosed with enduring profound deafness at the age of ten weeks, and attended the Victorian College for the Deaf from the age of six and a half years until 18 years. Ms Fields was first registered with the public mental health database and engaged in case management with Child and Adolescent Mental Health Services when she was four years old, with a diagnosis of Receptive Language Disorder; and then again at the age of eight. At the age of 16, Ms Fields was referred to a child psychiatrist after exhibiting ‘inappropriate sexualised behaviour’. The child psychiatrist prescribed her with Risperidone, but this medication was discontinued.[27]
[27]Report of Dion Gee, [12], referring to a report of Dr Walton, dated 22 December 2015.
In a 2015 report,[28] Dr Lester Walton referred to an autism assessment report of paediatrician Dr Hughes[29] wherein Dr Hughes noted that Ms Fields exhibited some behaviour typical of autistic children, ‘but she does not have classical autism and her difficulties are more in keeping with the diagnoses of pervasive developmental disorder… The comorbidity of profound sensory neural deafness makes the presentation more complex.’[30]
[28]Report of Dr Lester A Walton, Consultant Psychiatrist, 29 March 2016.
[29]Dr S Hughes, author of an autism assessment report dated 26 May 2004.
[30]Report of Dr Lester A Walton, Consultant Psychiatrist, 29 March 2016, p 1.
For the purposes of disposition, three expert reports prepared under s 41 of the Act were tendered to the court and each of those reports linked Ms Fields offending to her combined disabilities and made observations about future risk.[31] Psychologist Pamela Matthews[32] diagnosed Ms Fields with neural deafness, borderline cognitive functioning, and Autism Spectrum Disorder Level 1. As a result of her intellectual limitations, Ms Fields’ overall development and adaptive behaviour was found to be delayed and it was predicted that it would continue to be delayed. Consequential to her delayed development were difficulties with emotional regulation and age appropriate behaviour.[33] In addition, Ms Matthews identified features of anti-social personality disorder, although said these could be attributed to the fact that Ms Fields has other disabilities, and her social contact is limited by her hearing disability, and not a personality disorder.[34]
[31]Report of Pamela Matthews, dated 8 December 2016; Dr Danny Sullivan, dated 14 February 2017; and Yvonne Maxwell, dated 31 May 2017.
[32]Forensic psychologist recognised by APHRA and the Australian Psychological Society.
[33]Report of Pamela Matthews dated 8 December 2017, p 7-8.
[34]Disposition transcript, 23 March 2017, p 3-4.
It was the view of Ms Matthews that Ms Fields’ impairments contributed to the offending behaviour. Ms Fields’ atypical combination of hearing impairment, developmental cognitive impairment and Autism Spectrum Disorder help to explain her conduct in planning the attack on Mr Wright, her lack of containing empathy, and her limited understanding of the seriousness of her behaviour.[35]
[35]Report of Pamela Matthews dated 8 December 2017, p 8.
Dr Danny Sullivan[36] also diagnosed Ms Fields with borderline intellectual functioning and Autism Spectrum Disorder which affect Ms Fields’ social understanding and is associated with a range of unusual and obsessional interests and behaviours. He noted that the combined effect of these diagnoses is that communication is severely impaired. This refers to her capacity to express herself and understand others, but it also indicates limited ability to empathise, appreciate the perspectives of others, and solve problems.[37] The prognosis was that her low intellectual functioning and Autism Spectrum Disorder are chronic, but may respond positively to adequate treatment.
[36]Forensic psychiatrist, Assistant Clinical Director of Victorian Institute of Forensic Mental Health.
[37]Report of Danny Sullivan dated 14 February 2017, [44].
Dr Sullivan diagnosed borderline personality disorder, manifesting in patterns of mood volatility and difficulty managing anger; and he identified symptoms of adjustment disorder with mixed anxiety and depressive reaction, mild in severity.[38] Dr Sullivan opined that there was no requirement to treat Ms Fields’ personality disorder with medication.
[38]Ibid, [45]-[46].
In her report Yvonne Maxwell referred to previous reports detailing traits of borderline personality disorder that would benefit from intervention.[39] Ms Maxwell identified social skills deficits, manifesting in lack of awareness of social cues in community environments, poor relationship skills leading to dysfunctional relationships, oversexualised behaviour, and difficulty in understanding how a situation or an environment could impact other people in ways that are different to how it may impact on her.
[39]Report of Yvonne Maxwell, dated 31 May 2017, [25].
In relation to the offence, Ms Maxwell identified several precipitating factors—negative peer influence, poor problem solving and lack of perspective-taking skills. She also considered that Ms Fields had complicated relationships with the co-offenders and the victim and inadequate social/relationship skills to properly manage those dynamics. This, combined with her general social isolation from the community contributed to the offending behaviour.
Ms Maxwell identified that certain of these precipitating factors may be perpetuating factors for further offending behaviour. Ms Maxwell was of the view that emotional dysregulation, peer influence, maladaptive coping strategies, poor problem-solving skills, and social and relationship skill deficits increase the likelihood of further offending if left untreated. In terms of protective factors, Ms Maxwell noted in her report that Ms Fields exhibits a strong interest in learning to manage her behaviours and in engaging with therapeutic services.
Ms Maxwell addressed in her report the level of risk that Ms Fields posed to herself and to people generally. She applied the ARMIDILO-G[40] test to evaluate the presence of risk factors associated with violent recidivism, and protective factors associated with risk mitigation. The ARMIDILO-G was designed for clients over the age of 18 years with mild or borderline intellectual impairment and histories of general offending. Ms Maxwell found that Ms Fields’ risk for future offending was moderate to high, and her protective factors at the time of testing were moderate.
[40]Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend – General.
Ms Matthews, forensic psychologist, also addressed future risk in her written report. She found that Ms Fields presented a moderate to high level of risk. However, Ms Matthews clarified this assertion under cross examination saying that this assessment referred to the risk of general offending, not all of which would be violent offending; and that Ms Fields’ risk of violent offending was lower than it was for general offending.[41] Further, Ms Matthews conceded that the ARMIDILO-G test was designed to assess men, and had to be adapted for application to Ms Fields.[42]
[41]Disposition transcript, 23 March 2017, p 26-7.
[42]Ibid, p 26, lns 13-16.
The difficulties in applying standard forms of risk assessment were canvassed by Mr Kilduff, counsel for Ms Fields, in cross-examination of Ms Matthews. Ms Matthews agreed that risk assessment in Ms Fields’ case was difficult, partly because risk instruments are not normed on females.[43] Further, standard testing instruments were generally unsuitable to the particular constellation of impairments suffered by Ms Fields.[44] Ms Matthews stated that the risk assessment she arrived at was therefore derived from applying her clinical judgment[45] based largely on Ms Fields’ prior behaviour, including the breaches of bail and past bullying behaviour at school. Therefore the prior behaviour that was taken into account in making an assessment included verbal and emotional violence.[46] Ms Mathews also accepted that there were prospects for Ms Fields to move forward in her development since the offending and that this would improve her prospects in relation to risk. Ms Matthews also found that Ms Fields’ protective factors were moderate, on the basis of Ms Fields residing in the family home and having the support of her family.
[43]Ibid, p 19, lns 10-12.
[44]Ibid, p 18, lns 15-28.
[45]Ibid p 19, lns 4-5.
[46]Ibid, pp 19-20 , lns 28–10.
In respect of risk posed to herself, both Ms Maxwell and Dr Sullivan noted in their reports previous behaviour of self-harm and occasional suicidal ideation. In court, Dr Sullivan opined that incarceration could exacerbate impulses towards self-harm, and that that was in fact the case with Ms Fields. Further, Dr Sullivan noted that in a prison environment, a person who is at risk of self-harm is often placed under observation or in management. This is the same intervention as is administered to prisoners who are physically violent or behaviourally disturbed. In observation units or in management units, prisoners are subject to adverse conditions that create a persistently elevated risk of self-harm.
Prior to being granted bail by Kaye JA in June 2015, Ms Fields was on remand for a period of four months. During this time, her mental health deteriorated and she was placed in observation units on several occasions as a result of repeated threats to suicide.[47] Doug Fields, father of Ms Fields, gave evidence in court describing the physical condition of Ms Fields when she came out of Dame Phyllis Frost Centre. He testified to various home-made piercings that she and other inmates had performed on her, some of which were infected. She was very skinny and had not been eating properly.[48] She took quite some time to settle down after returning to the family home.
[47]Evidence of Doug Fields, Disposition Transcript, 24 March 2017, p 141, lns 20-21.
[48]Evidence of Doug Fields, Disposition Transcript, 24 March 2017, p 145, lns 7-13.
Both Ms Matthews and Dr Sullivan were of the view that prison would not be an appropriate environment for Ms Fields, as she would not receive the social or therapeutic support she requires. Ms Matthews explained in oral evidence that Ms Fields has a compromised capacity to read social behaviours and develop protective behaviours due to her intellectual disabilities and autism, making Ms Fields particularly vulnerable in prison.[49] In addition, there are no staff at the Dame Phyllis Frost Centre who speak Auslan, and so effective communication would be limited to weekly visits by a case worker.[50]
[49]Disposition Transcript, 23 March 2017, p 33-34.
[50]Ibid, p 31.
In court, Dr Sullivan gave evidence as to the therapeutic needs of Ms Fields and opined that it would not be possible to meet those needs in prison. He expressed the view that the women’s prison was not equipped to provide suitable support to a person with Ms Fields’ combined disability and that Ms Fields required careful supervision with respect to her peer group so that she was neither victimised by them nor negatively influenced by them. Further, in a prison environment Ms Fields would not have access to the degree of therapeutic input that she requires in order to rehabilitate. Dr Sullivan stated that Ms Fields’ treatment needs are likely to require significant psychological input. This could mean eight to twelve hours a week, as opposed to the one or two hours she would be likely to receive in prison; and would almost always require one‑to‑one input through an Auslan interpreter and with a psychiatrist.
In an affidavit sworn on 27 March 2017, Brendan Money of Corrections Victoria stated that Ms Fields was kept in the general prison population of Dame Phyllis Frost Centre during her time on remand. She was initially placed in cottage-style accommodation, but due to conflict with other prisoners, she was moved to single cell accommodation with close monitoring by prison staff. As Ms Fields has not been diagnosed with a mental illness, she was not eligible for the Marmak unit at the prison. Mr Money referred to a forthcoming health and well-being precinct to be constructed within the Dame Phyllis Frost Centre in 2018, but did not provide details as to what programmes and facilities would be offered when it is completed. Mr Money stated that a comprehensive assessment would be undertaken should a custodial supervision order be made.
A letter dated 10 February 2017 from Louise Gallagher, Divisional Liaison of DFATS, stated that if Ms Fields were to be imprisoned at Dame Phyllis Frost Centre, DHHS could facilitate case management services and arrange any necessary assessments and referrals, and ultimately develop a transition plan for Ms Fields eventual release back into the community.[51] In addition, the Crown tendered an email[52] referring to information received from the General Manager of the Dame Phyllis Frost Centre, to the effect that DPFC could replicate day and night curfew times, and provide support from service providers and peer workers. Those statements of possible service provision are vague and lacking in detail as to how Ms Fields specific therapeutic and rehabilitative needs would be met in prison.
[51]Above n 21.
[52]Email signed by Debra Coombs, sent Monday, 24 July 2017. Tendered as Prosecution Exhibit 10, 24 July 2017.
As an alternative to a custodial order committing Ms Fields to the care of the Dame Phyllis Frost Centre, the court has received s 47 report from DHHS dealing with a non CSO option and detailing services and conditions that are recommended to be attached to a non-custodial supervision order. The conditions have been recommended in order to ensure adequate oversight, risk-mitigation, guidance and therapy. In light of the principle captured by s 26(4) of the Act and the evidence set out above, it is my view that the services available to Ms Fields under non CSO will cater to her specific rehabilitative requirements. Ultimately, the safety of the community and Ms Fields is better served by ensuring that a regime of targeted treatment supervision and monitoring is put in place for Ms Fields. Ms Fields is still a young person who will have to adapt herself to safely navigating the general community in the future. She will need every available assistance to this end.
Both Dr Sullivan and Ms Matthews were of the opinion that a properly structured NCSO would be a more suitable disposition than imprisonment for Ms Fields. The court requested and received a proposed treatment plan from DHHS that would be implemented for Ms Fields should she be placed on a NCSO.[53] The reports of Ms Del Aulich confirmed that Ms Fields is within the Target Group for access to disability support under the Disability Services Act 2006.[54]
[53]Above n 19, 20.
[54]“A Target Group Assessment was completed by DHHS on 22 December 2016 which determined Ms Fields was within Target Group for access to disability support under the Disability Services Act 2006.” Report of Del Aulich, dated 17 July 2017, p 2.
The reports of Ms Aulich[55] included a proposed treatment plan and conditions. The report of 17 July 2017 includes details of a coordinated care model, specialist interventions and structured day programme proposed under the treatment plan and conditions.
[55]Dated 17 July 2017 and 24 August 2017.
The services that would commence under a NCSO supervised by DHHS have been designed after extensive meetings with Ms Fields and her family with AUSLAN interpreters attending to assist communication. Case management support will include coordination of service delivery and facilitation of care team meetings, assistance to link into social, recreational, educational and vocational activities, and support to attend medical appointments.
Specialist behavioural assessment is proposed along with psychological counselling and a structured day program.
ERMHA have been contracted to deliver services for an assertive outreach based structured day program for Ms Fields to receive whilst living at the family home in the community. Ms Fields will continue to reside with her family until such time as an alternative option is found suitable. ERMHA can also provide after-hours support to the family of Ms Fields and a crisis response if required.
The recommended conditions for a NCSO as set out in the Addendum report of Ms Aulich dated 28 August 2017 include that Ms Fields will:
(a) Be subject to the supervision of the Secretary of the Department of Health and Human Services (the Secretary), or his or her delegate;
(b) Abide by the lawful directions of the Secretary or his or her delegate;
(c) Remain in the State of Victoria and reside at [REDACTED], or such place as is directed by the Secretary or his or her delegate;
(d) Maintain an 8 pm to 6 am curfew at [REDACTED] unless otherwise directed by the Secretary or his or her delegate;
(e) Be supervised at all times when accessing the community by a specialist worker, support staff or member of the care team( the care team includes family members);
(f) Not at any time attend within 200 meters of 29-31 Nelson Street Ringwood (where the index offence occurred);
(g) Not at any time communicate with the co-offenders, Jake Fairest and Warwick Toohey;
(h) Attend the weekly scheduled appointments with her case manager or as directed by the Secretary or his or her delegate; and
(i) Undergo such medical treatment, assessments and attend appointments as directed by the Secretary, or his or her delegate, including psychological counselling and offence specific treatment programme targeting anger management.
(j) Under the proposed NCSO, the Secretary or his or her delegate will have responsibility for supervision of Ms Fields under the order, and will monitor her compliance.
Any instances of noncompliance will be reported in s 41(3) reports under the Act or may be brought back before the court under an application for variation under s 29(1) of the Act.
It was the Crown’s position in submissions filed on 5 September 2017 that the s 41 reports fail to adequately address certain factors—the seriousness of the offence; the risk she poses to the community; her treatment needs; the high risk that Ms Fields will not comply with a NCSO; and the unavailability of alternative accommodation apart from the family home. The Crown in particular emphasised the expert opinions which refer to ongoing risk of further breach of supervisory orders and the fact of past breaches of bail. The Crown also raised a concern about Ms Fields continuing to reside in the family home, placing a significant burden on her family, noting the current lack of other suitable alternative accommodation.
It was the Crown’s submission that the court should impose a CSO in which Ms Fields would be imprisoned at Dame Phyllis Frost Centre, owing to the seriousness of the offence she was found to have committed, and the identified risk factors.
The Crown also submitted that a range of treatment needs have been identified for Ms Fields in the reports of Ms Maxwell, Ms Matthews and Dr Sullivan, including the need for psychological counselling, supervision and assistance with appropriate educational, recreational and vocational activities. Although the Crown suggested that those needs may be met in prison, it is my view that the evidence does not support the submission that Ms Fields needs could be met to a sufficient degree in contrast with the arrangements available under a NCSO.
Counsel for Ms Fields submitted that the proposed NCSO adequately addresses issues of future risk whilst meeting the treatment and rehabilitative requirements of Ms Fields and the objects of the Act. In particular, the defence relied on the evidence of Dr Sullivan and Ms Matthews as to the vulnerability of Ms Fields in a custodial setting in prison, and as to her deterioration during her previous experience of imprisonment. I accept that submissions of Ms Fields’ representatives that a non-custodial supervision order is the preferred option in this case.
The disposition of Ms Fields has been under consideration for over 10 months now. I have had many opportunities to observe Ms Fields’ behaviour in Court and to observe the support that she receives from family members. I have also received updates over that period as to her compliance with bail conditions and other matters relevant to the assessment process whilst Ms Fields has been on bail. I recognise that the management of Ms Fields in the future will pose challenges for the Department, her family and the community, however, the community would not be well-served by the imposition of a CSO that would increase the level of dysfunction experienced and exhibited by Ms Fields.
I acknowledge the seriousness of the offence Ms Fields was found to have committed. Family and friends of the deceased may struggle to understand why a CSO should not be imposed in this case. However, I am bound to apply the provisions of the CMI Act, which include the requirement to balance management and monitoring of risk with consideration of disability, and impairment and the treatment needs of Ms Fields.
I therefore order that Ms Fields be subject to a Non-Custodial Supervision Order under s 26(2)(b) of the Act. As per s 27(1), the order will stand for an indefinite period, with a nominal term of twenty five years.[56] I further order that Ms Fields be brought back for review after 6 months.[57]
[56]CMI Act, s 28(1).
[57]CMI Act, s 27(2).
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