Director of Public Prosecutions v Toohey
[2017] VSC 632
•27 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0121
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WARWICK TOOHEY |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 29 September 2016, 3-31 October 2016 |
DATE OF RULING: | 27 February 2017 |
CASE MAY BE CITED AS: | DPP v Toohey |
MEDIUM NEUTRAL CITATION: | [2017] VSC 632 |
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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) — Custodial Supervision Order — Intensive Residential Treatment Programme at Disability and Forensic Assessment and Treatment Unit under s 152 Disability Act 2006 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Dane QC with Ms K Argiropoulos | Office of Public Prosecutions |
| For Warwick Toohey | Mr T Alexander | Paul Vale Criminal Law |
HER HONOUR:
On 28 October 2016, Warwick Toohey, Jake Fairest and Georgia Fields were each found by a jury at a special hearing to have committed murder. The background is as follows.
On 15 February 2015, the three accused were arrested and charged with the murder of Robert Wright. Although each of them was initially remanded in custody, Mr Fairest and Ms Fields were subsequently granted bail and remained on bail. Mr Toohey has been kept in custody in prison since his arrest.
On 1 July 2016, following an investigation under Part 2 of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’) into the three accused’s fitness to stand trial, each of the three were found unfit to be tried pursuant to Part 2 of the Act by a jury convened before Croucher J. His Honour determined that none of the three accused would become fit to stand trial within 12 months of being declared unfit,[1] and, therefore, on 1 July 2016 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]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 11(4)(a). (‘CMI Act’)
[2]CMI Act, s 12(5).
[3][2016] VSC 329, [1]-[6].
The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) was introduced into parliament in 1997 for the purpose of repealing the regime under which people were committed to be detained in custody at the Governor's pleasure. It created new procedures for dealing with people found unfit to stand trial or not guilty on the ground of mental impairment.[4]
[4]CMI Act, s 1. See generally, Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, 185 (Jan Wade, Attorney-General).
One of the purposes of the legislation was to provide an alternative trial process for persons found unfit to be tried.[5] The special hearing procedure grants 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. In the event that the special hearing establishes that the charged offence has been committed, the court is obliged to either declare the person liable to supervision under Part 5 of the Act or release the person unconditionally.[6]
[5]See Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, 186 (Jan Wade, Attorney-General).
[6]CMI Act, s 18(4).
A finding that the accused committed the offence charged or an offence available as an alternative under s 17(1)(c) of the Act 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.
Following the jury findings I declared each of the three accused liable to supervision under Part 5 of the Act; I granted bail to Mr Fairest and Ms Fields;[7] and remanded Mr Toohey in custody in prison pending the making of the supervision orders.[8]
[7]CMI Act, s 19(1)(a).
[8]CMI Act, s 19(1)(c).
Further steps were taken pursuant to the legislative regime set out in the Act, including a request for reports and certificates of available services.[9] Reports were requested and received from the Department of Health and Humans Services (‘DHHS’) and from Forensicare under ss 40 and 41 of the Act. The certificates of available services that were requested under s 47 of the Act, and have now been received from DHHS and Forensicare in response to my request.
[9]CMI Act, ss 19(1)(d, 40, 41, 47.
In addition, reports of family members and victims of the offence have been furnished to the court pursuant to s 42 of the Act 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’.[10] 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.’[11]
[10]CMI Act, s 42(1)(a) and (b).
[11]CMI Act, s 42(2).
I have received and taken into account relevant portions of the reports from the family of Robert Wright. In particular, 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.
Having declared Warwick Toohey liable to supervision under s 18(4)(a) of the Act as a result of the jury finding that he committed murder, and having now received the requisite reports and certificates, it is appropriate that I make a supervision order in respect of him under s 26 of the Act.
The court is imbued with a discretion as to whether the supervision order to be imposed is a custodial supervision order or a non–custodial supervision order.[12]
[12]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. In this case, as will shortly become clear, there is such an alternative.
Warwick Toohey was remanded in custody to a prison after being declared liable for supervision under s 19(3) of the Act because at that time I was satisfied there was no practicable alternative in the circumstances.
In considering the appropriate disposition following a finding at a special hearing that an offence was committed, and following a decision to declare a person liable to supervision, the Court is not engaging in a process of sentencing. The jury's finding is not equivalent to a finding of criminal responsibility in a criminal trial. Rather, as has been mentioned, it is a qualified finding of guilt.
The Court must follow the dictates of the Act and may only have a limited array of options for disposition. The options available for disposition depend on the reports and certificates furnished under the Act.
In considering the reports filed with Court relevant to Mr Toohey’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) provides the following relevant matters to be considered:
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.
…
During an earlier stage of proceedings, following the jury delivering its findings, the Crown produced evidence from Ms Louise Gallagher of the Disability Forensic Assessment and Treatment Unit (‘DFATS’). DFATS conducts an intensive residential treatment programme under the auspices of DHHS.
The Crown also called evidence from Leonie Hatch, a solicitor employed by DHHS who has familiarity with the process of assessment under s 41 of the Act and the furnishing of certificates under s 47.
At the time of the offence, Mr Toohey was 28 years old. He is a person who has been diagnosed as suffering from profound deafness and intellectual disability. He has been previously certified under the Disability Act 2006 as intellectually disabled. On testing, he has been found to have an IQ in the lowest 0.5 percent of the general adult population.[13] The reasons of Croucher J for finding it unlikely that Mr Toohey would become fit in the ensuing 12 months set out in more detail some of the difficulties faced by Mr Toohey, including his very significant communication and comprehension deficits.[14]
[13]Dr Lindsay Vowels, Neuropsychology Assessment Report, 11 July 2015, 2.
[14]The Queen v Fairest, Fields and Toohey (Ruling – Fitness to be Tried) [2016] VSC 329, [34]-[41].
Mr Toohey was sharing an apartment with Robert Wright, the deceased, at the time the offence was committed. Whilst Mr Toohey had been subject to some degree of oversight by social workers from VicDeaf, he had been tending to avoid meetings and appointments with his case workers in the lead up to the offence.
His closest ongoing family relationship was with his foster mother, although he had not resided with her for many years. It is not apparent from the materials before me that Mr Toohey was seeing very much of his foster mother in the lead up to the offence.
Prior to sharing the apartment with the deceased, Mr Toohey resided in supported accommodation where he had a greater degree of assistance and supervision than when he moved into the apartment with the deceased. It had been his wish to become more independent and to move into independent living circumstances.
However, relations between Mr Toohey and Robert Wright had become strained prior to the offence and Mr Toohey had become intimately involved with Ms Fields. He had formed a strong bond with both Ms Fields and Mr Fairest.
It was in the context of the breakdown in relations between Mr Toohey and Robert Wright that a joint decision was made by Mr Toohey and his two co-offenders to kill Robert Wright by dropping him over the balcony of their apartment.
Evidence given during the Special Hearing from one of the VicDeaf caseworkers involved with Mr Toohey was to the effect that he had noticed that the placement of Mr Toohey with Robert Wright was not working out, and that Mr Toohey was not managing to live independently in a successful manner. He was unable to keep his room tidy, manage appropriate routines, or maintain work or vocational pursuits.
I have had regard to that background as well as the reports and evidence provided through the process of the fitness investigation and the Special Hearing. DHHS and Forensicare were supplied with that material as a part of the material to be made available to those called upon to provide reports under ss 40 and 41 and certificates under s 47.
This material included the reports and oral testimony of Mr Christopher Drake and Mr Jeffrey Cummins, as well as the neuropsychological assessment of Dr Lindsay Vowels.
In response to my request for ss 40 and 41 reports, DHHS filed a report dated 23 December 2016 from Dr Lisa Warren of Codeblack Threat Management providing an assessment of Mr Toohey. The Court also received a report from DFATS authored by Nina Stevanovic under the supervision of Gayani Maddumage on 5 January 2017 (‘the DFATS report’).
Dr Warren referred to the relevant forensic material for the purposes of assessment.[15] She expressed the strong view that Mr Toohey was in need of support in most aspects of his daily life to help him regulate his behaviour and communicate his needs. He needs to learn how to manage and address frustration safely.[16]
[15]This included the reports of Christopher Drake (13 May 2016, 18 May 2015 and 12 October 2016); reports of Jeffrey Cummins (12 April 2016, 17 May 2016, 23 September 2016), and assessment reports of Dr Lindsay Vowels (14 October 2015), as well as documents and transcripts from court proceedings.
[16]Report of Dr Lisa Warren, Codeblack Threat Management, 23 December 2016, [41].
She found that he has risk factors for violence relating to his state of mind, disabilities and need for support, but that he does not present with imminent or omnipresent risk. Rather, he needs to be shepherded by supportive and patient staff in most aspects of daily life.[17]
[17]Ibid, [40].
She found that his disabilities impact upon his capacity to communicate, interact, regulate, and learn.[18]
[18]Ibid, [17].
The impairments he suffers are unlikely to resolve or improve in any substantive way,[19] although Mr Toohey expressed to her a desire to be a good person when released from prison.[20]
[19]Ibid, [21].
[20]Ibid, [13], [39].
Dr Warren also noted that during the assessment process that Warwick Toohey was pleasant and cooperative, but that he could become anxious and agitated. She described him as an immature, poorly-regulated person who behaves badly when his environment exceeds his very limited capacity to cope with it.[21]
[21]Ibid, [39].
She noted his limited cognitive skills will prevent him from demonstrating any significant psychological change.[22] Mr Toohey had not fared well in prison–as he was the only hearing impaired person in his unit, he felt isolated, frustrated and bullied.[23]
[22]Ibid, [58].
[23]Ibid, [62].
Dr Warren opined that he needed to be in an environment where he can be continually guided, and where he has structured activities and routines. She made reference to the SensWide Disability Program as potentially offering structured assistance.
She considered that Mr Toohey was not suited to his independent living situation that he was in at the time of the offending and needed supported accommodation.[24]
[24]Ibid, [57].
In terms of risk to self, Dr Warren noted that any such risk assessment for Mr Toohey was by its nature nuanced.[25]
[25]Ibid, [34].
Regarding risk to others, she noted that there is a limited empirical basis for evaluation of risk for a person with profound deafness, although there was a growth of literature relating to risk assessment of people suffering from intellectual disability.[26] She utilised the HCR-20 historical and clinical risk scale with cognisance to the adjustment required for intellectual disability.[27]
[26]Ibid, [35].
[27]Ibid, [38].
She considered that there was a need to protect others from the risk of harm through violence, based on his current risk assessment.[28] This was due to Mr Toohey’s state of mind, disabilities, need for support and lack of personal supports other than his foster mother.
[28]Ibid, [41].
She noted that Mr Toohey was isolated in prison, bored and had little more than a rudimentary understanding of why he was there.[29] Dr Warren opined that Mr Toohey needs to reside in long term supported accommodation where he can be provided daily assistance with programs to help him seek activity and gain the stimulation that he lacks in prison. He needs assistance from staff who have at least rudimentary knowledge of Auslan to communicate with him. He needs assistance with social skills and conflict resolution skills.
[29]Ibid, [61].
The DFATS report contained a number of scaled risk assessments and assessed Mr Toohey’s suitability for a residential treatment facility known as the IRTP (Intensive Residential Treatment Program) at DFATS.[30]
[30]Nina Stevanovic, Disability Forensic Assessment & Treatment Service (DFATS), Assessment of Service Level One Report, 5 January 2017.
The DFATS assessors had a range of relevant forensic material but noted some limitations on the information gleaned from Mr Toohey personally. For example, his capacity to explain his life history was limited. However, they noted that he expressed a desire to be engaged in the IRTP.[31]
[31]Ibid, [76].
The authors identified elevated risks[32] and protective factors[33] and used two risk assessment tools:
(a) HCR-20V3, in which the rating was of moderate risk of violent offending;[34]
(b) ARMIDILO-G which found a low-moderate risk of violent offending.[35]
[32]Ibid, [38], [51]-[52].
[33]Ibid, [40], [53]-[54].
[34]Ibid, [47].
[35]Ibid, [55].
The empirically guided risk outcome led to assessment as a moderate risk category.[36]
[36]Ibid, [62].
The authors noted that to be suitable for DFATS, Mr Toohey must satisfy criteria under s 152 of the Disability Act 2006. The criteria for admission under ss 152(1) and (4) includes that:
(a) The Person has an intellectual disability; and
(b) The Person presents a serious risk of violence to another person; and
(c) All less restrictive options have been tried or considered and are not suitable.
Mr Toohey was found to have satisfied criteria (a) and (b). Regarding criterion (c), the assessors state that DHHS divisional case management requested an assessment for residing in the IRTP under a custodial supervision order. Therefore, the report did not specifically discuss accommodation options under a non-custodial supervision order.[37]
[37]However Mr Toohey was residing in prison at the time of the assessment and his counsel did not seek to persuade the court to consider a non-custodial supervision order in respect of Mr Toohey.
The report also noted that whilst in prison, since 2015, Toohey’s needs had only been somewhat met and that he would benefit from a structured program consisting of educational community re-integration and treatment components and ongoing staff support and monitoring with the opportunity to communicate his needs.[38]
[38]Nina Stevanovic, Disability Forensic Assessment & Treatment Service (DFATS), Assessment of Service Level One Report, 5 January 2017, [66].
The report indicated that this could occur at DFATS, and that, although restrictive, it is less restrictive than a prison, with more focus on rehabilitation and community re-integration than in prison. It was noted that the IRTP managed by DFATS is part of a specialized disability service. The report stated that the IRTP can provide services for the treatment of Mr Toohey’s disability and the available treatment is suitable for his needs.[39]
[39]Ibid, [68]-[75]. It was also noted, however, that a person cannot be admitted for a period of longer than 5 years. After 5 years, there will need to be a variation on the order. See [86].
The report also noted Mr Toohey’s enthusiasm for admission to the IRTP.[40] It also indicated that his assessment and referral to the DFATS IRTP was appropriate from both an operational and clinical perspective.[41]
[40]Ibid, [78]-[79].
[41]Ibid, [80].
Mr Toohey met criteria under s 152(1) of the Disability Act 2006,[42] and DFATS were said to be able to make the necessary arrangements for admission on or after 13 February 2017.
[42]Ibid, [85].
The s 47 Certificate of Available Services produced by DHHS certified that should the court impose a custodial supervision order, a service was available at the DFATS IRTP.
This facility is proclaimed under the Disability Act 2006 and deemed an appropriate place for the custody of a forensic resident under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The Certificate indicates that the IRTP offers a highly structured, supervised, residential treatment program aimed at addressing the resident’s offending behaviour through offence-specific and offence-related group and individual programs, as well as pre-vocational and educational services.
Whilst the Certificate also refers to services which may be offered if Mr Toohey were committed to custody in a prison, these services appear to be more limited. The Certificate also refers to case management that could be provided if Mr Toohey were placed on a non-custodial supervision order, but this option does not include the same safe, therapeutic and structured residential support as the IRTP.
Following the receipt of the above-mentioned reports and the Certificate to which I have already referred, Forensicare provided a psychiatric report from Dr Anthony Fernando dated 15 February 2017 and a Certificate of Available Services from Forensicare dated 16 February 2017.
In brief, the Forensicare Certificate indicated that due to the outcome of Dr Fernando’s assessment of Mr Toohey’s psychiatric and psychological condition, there are no appropriate treatments or services which can be provided by Forensicare to Mr Toohey. This is primarily due to the absence of any Axis I mental illness affecting him.[43]
[43]Dr Anthony Fernando, Forensicare, Section 41 Report, 15 February 2017, [69].
However, Dr Fernando did note that Mr Toohey is a person who presents with specific vulnerabilities, including the risk of being easily led or bullied.
Dr Fernando described Mr Toohey as being an immature individual with a simplistic outlook on life and an unsophisticated appraisal of his life circumstances. He said it could be argued that Mr Toohey’s mental age has an equivalency of a person of between nine and twelve years old at best.[44]
[44]Ibid, [63].
Dr Fernando opined that Mr Toohey needed to be cared for in a secure environment catering to his disabilities, and would not be able to cope in the prison system on a longer term basis. He said it was quite likely Mr Toohey’s mental state would deteriorate in such a custodial setting in a prison.[45]
[45]Ibid, [70].
In light of the evidence adduced in the Special Hearing, the reports provided under s 40 and 41 by Dr Warren, from CodeBlack threat management and the DFATS report, as well as the report of Dr Fernando from Forensicare, having received a certificate of available services under s 47 of the Act from DHHS,[46] and in light of the other matters I have referred to, I am persuaded that a custodial supervision order is the most appropriate disposition in Mr Toohey’s case. I am also persuaded that the DFATS IRTP is the best available placement for Mr Toohey on a custodial supervision order.
[46]Dated 13 January 2017.
I conclude that I should impose a custodial supervision order under ss 26(1) and (2)(a), for an indefinite term[47], with a nominal period of 25 years[48] and commit Mr Toohey to custody at the IRTP at DFATS. The reports obtained for Mr Toohey together with the background to his offence and his individual treatment needs meant that there was not a sufficiently safe and structured non-custodial option posited to the court as a viable alternative. I have reached this conclusion taking into account Mr Toohey’s particular needs and risk profile. The Warren report and the DFATS report recommend a structured and supervised custodial placement which will also meet Mr Toohey’s needs for a greater level of personalised guidance and support.
[47]CMI Act, 27(1)(a).
[48]CMI Act, s 28(1).
Evidence previously called from Ms Hatch of DHHS outlined the relatively small number of custodial placements which are presently available for intellectually disabled male offenders placed on a supervision order.[49]
[49]Transcript, 4 November 2016, p 110.
In determining what course to take following declaring Mr Toohey liable to supervision under Part 5 of the Act, I have had regard to the principle of parsimony in s 39 of the Act and the factors set out in s 40(1) of the Act.
I have balanced the non-exhaustive considerations referred to in s 40(1) of the Act and paid heed to the interpretation of the requirements of s 39 and 40 provided by the Court of Appeal in Nom v DPP & Ors.[50]
[50][2012] VCSA 198, [53]-[71].
In my view, the DFATS option is to be strongly preferred over Mr Toohey’s current circumstances in prison, in light of the matters which I am bound to consider under the Act, and in light of all the reports and evidence available to me. I am especially cognisant of the opinions expressed by Dr Warren and Dr Fernando, as to Mr Toohey’s vulnerability and risk of deterioration in a prison setting.
I have taken into account the reports filed by Robert Wright’s family and the tragic impact of the death of Robert Wright. They are justifiably concerned to ensure that appropriate measures are put in place to manage Mr Toohey in the future. They should be assured that Mr Toohey will be closely supervised in his new custodial placement at DFATS.
Mr Alexander who appears for Mr Toohey does not seek to dissuade me from the proposed custodial supervision order so in those circumstances the order will be made in accordance with the Act.
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