Re Toohey
[2022] VSC 500
•26 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2020 03174
| IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order under ss 31(1) and 32(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and - |
| IN THE MATTER of an application for further extended leave under s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and - |
| IN THE MATTER of an application by the Secretary to the Department of Families, Fairness and Housing in respect of Warwick TOOHEY |
---
JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 October 2021 |
DATE OF JUDGMENT: | 26 August 2022 |
CASE MAY BE CITED AS: | Re Toohey |
MEDIUM NEUTRAL CITATION: | [2022] VSC 500 |
---
CRIMES MENTAL IMPAIRMENT – Application for variation of a custodial supervision order to a non-custodial supervision order – Application in the alternative for further extended leave – Low risk of future offending – Low risk of violence – Availability of supported disability accommodation with supported independent living services – Application for variation supported by all parties to the proceeding and treating experts – Application for variation granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 39, 40 and 57.
---
APPEARANCES: | Counsel | Solicitors |
| For the Secretary to the Department of Families, Fairness and Housing | Mr C Grant | Department of Families, Fairness and Housing, Legal Branch |
| For Warwick Toohey | Ms J McGarvie | Paul Vale Criminal Law |
| For the Attorney-General | Mr L McAuliffe | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms L Wilkinson | Abbey Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
Warwick Toohey (‘WT’) is subject to a custodial supervision order (‘CSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). WT has been the subject of a grant of extended leave under s 57(2) of the Act. On 16 August 2021, he filed an application for a grant of further extended leave (‘FEL’). Before the hearing of that application, the Secretary to the Department of Families, Fairness and Housing (‘the Secretary’) commenced an application for variation of WT’s CSO to a non-custodial supervision order (‘NCSO’).
Prior to the hearing of the applications, the Secretary, the Attorney-General and WT’s legal representatives submitted in their consolidated response[1] that the Court ‘should grant the application to vary’ WT’s CSO to a NCSO.[2] The parties did not indicate their positions with respect to the application for FEL. However, it can be inferred from the parties’ support of variation that a grant of FEL, in the alternative, would not be opposed.
[1]The Court, on its own initiative in recent years, requests a ‘consolidated response’ from parties to proceedings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
[2]Consolidated Response, 29 September 2021, 4 (‘Consolidated Response’).
A hearing of the application for variation was listed on 21 October 2021, that is, around two weeks after the expiry of WT’s grant of extended leave on 8 October 2021. In the circumstances, I was minded to grant WT’s application for FEL[3] by consent, on the papers, which allowed the hearing of the application for variation to occur after 8 October 2021.
[3]Amended Notice of Application for Further Extended Leave filed 16 August 2021.
At the time of granting FEL to WT, I was satisfied on the evidence available that the safety of WT or members of the public would not be seriously endangered as a result of him being allowed FEL.[4] In considering this application, I applied and had regard to the principles and matters set out in ss 39(1) and 40 of the Act respectively. Pursuant to s 56(1) of the Act, I granted WT FEL for a period of 12 months, that is, until 8 October 2022, on the conditions detailed in the leave plan filed by the Secretary.[5]
[4]The Act, s 57(2). I note that s 57(3) of the Act provides that extended leave applications can be made and granted more than once.
[5]The Act, s 57A(b).
The Director of Public Prosecutions (‘the Director’) indicated in the consolidated response that she did not take a position on the applications. That is the usual course. The Director was excused from attendance at the hearing, having discharged her obligation under s 38C of the Act to give notice of the hearing to the family members of WT and the victims of the index offence. At the time of the hearing, no reports under s 42 had been filed.[6]
[6]Affidavit of Louise Wilkinson, 27 September 2021 [10]. See also, transcript 16.
In their consolidated response, received by the Court on 29 September 2021, the Secretary, the Attorney-General and Mr Toohey’s representatives proposed that this matter ‘be dealt with on the papers.’[7] Parties were at one as to what the outcome of the proceeding should be, namely, that the Court should grant the application to vary the CSO to a NCSO. However, I considered it appropriate that the application for variation of the CSO to a NCSO proceed in open court, with a view to hearing further evidence from WT’s treating staff and submissions from the parties in respect of this.
[7]Consolidated Response 4.
At the hearing on 21 October 2021, I indicated that I would publish my decision on the application for variation at a future time. The decision on this application, as well as my reasons, follow.
Background
The background to this application is detailed in the original rulings of Croucher J, with a jury finding that WT was unfit to stand trial and his Honour subsequently finding that WT was unlikely to become fit within the 12 months following 1 July 2016.[8]
[8]R v F, F and Toohey [2016] VSC 329.
A special hearing followed, and a jury found that WT, along with two co-offenders, had committed the offence of murder. As a result, WT was declared liable to supervision under Part 5 of the Act and remanded in custody until a disposition hearing could proceed before this Court.[9]
[9]DPP v Toohey, F and F [2016] VSC 827 (Jane Dixon J).
On 27 February 2017, a CSO was made by Jane Dixon J in respect of WT for a nominal term of 25 years. He was committed to the custody of the Department of Health and Human Services[10] to reside at accommodation provided by the Disability Forensic Assessment and Treatment Service (‘DFATS’) Intensive Residential Treatment Program (‘IRTP’).
[10]On 1 February 2021, the Department of Health and Human Services was separated into the Department of Health and the Department of Families, Fairness and Housing (‘DFFH’). WT, as a forensic resident, falls under the care and supervision of DFFH.
At the hearing of the first review of WT’s CSO,[11] Jane Dixon J confirmed the CSO and ordered that the matter be brought back for further review in two years’ time pursuant to s 32(5) of the Act.[12]
[11]The Act, s 27(2).
[12]Re Toohey [2019] VSC 730.
On 4 August 2020, the Secretary filed an application for extended leave on WT’s behalf.[13] This application was granted, on the papers, by Taylor J for a period of 12 months on the conditions set out in the original leave plan.[14]
[13]Notice of Application for Extended Leave filed by the Secretary to the Department of Health and Human Services, 4 August 2020.
[14]Re Toohey [2020] VSC 660.
A condition of WT’s extended leave was that his place of residence be varied from the accommodation provided by the IRTP to a specialist disability accommodation facility in Nunawading.[15] This facility is operated by Expression Australia and its staff specialise in working with hearing impaired people. WT continues to reside in this accommodation pursuant to the conditions of the current leave plan.[16] It is not proposed by the Secretary that WT’s place of residence be varied in the event that his CSO is varied to a NCSO.[17]
[15]Re Toohey [2020] VSC 660 [62]-[66] (Taylor J). See also, original Leave Plan by Mr Nik Nikolovski, Forensic Residential Services, 25 August 2020.
[16]Leave Plan by Mr Nik Nikolovski, Forensic Residential Services, 4 October 2021.
[17]Transcript 18.
WT came before the Court as a 35 year old man[18] who is profoundly deaf with a mild intellectual disability. He has diagnoses of dysexecutive syndrome, depression and anxiety,[19] and a historical diagnosis of attachment disorder as a result of childhood disruption in family relationships, neglect and abuse.[20]
[18]He is now 36 years of age.
[19]Risk Assessment Report by Mr William Wainwright, 23 July 2021, 5 – 6.
[20]Re Toohey [2019] VSC 730 [12].
To briefly summarise the index offending, WT was found by a jury to have caused his housemate, Robert Wright, to fall from the balcony of their shared second-floor apartment.[21] Mr Wright sustained catastrophic head injuries from his fall and died in hospital.[22] As observed by Jane Dixon J:
The offence was the product of planning by Mr Toohey and his two co-defendants, Ms F and Mr F. Mr Toohey claims that Ms F[23] raised the idea of killing the deceased and that he felt pressured to go through with the plan because she would be mad if he did not do so. He hoped to be able to live in an apartment with Ms F if he complied with her wishes.[24]
[21]Indictment C1510049.
[22]Police summary filed 19 August 2015, 22.
[23]I note that Ms F and Mr Toohey were in an intimate relationship at the time of the index offence.
[24]Re Toohey [2019] VSC 730 [15].
The law
The discretion to vary a CSO to a NCSO cannot be exercised during the nominal term of the order unless the Court is satisfied that the safety of the person subject to the CSO, or members of the public, will not be seriously endangered as a result of the variation.[25] Additionally, the person the subject of the CSO must have completed a period of at least 12 months extended leave under s 57 of the Act before such a variation can be made.[26] I note that at the time of the hearing, WT had completed just over 12 months’ extended leave. That period is now in excess of 20 months.
[25]The Act, s 32(2).
[26]Ibid, s 32(3)(a).
Section 31 of the Act sets out who may apply to the court for variation of a CSO to a NCSO:
(1)Any of the following may apply to the court that made a supervision order for a variation of the order (in the case of a custodial supervision order)…
(a) the person subject to the order;
(b)a person having the custody, care, control or supervision of that person;
(c) the Director of Public Prosecutions;
(d) the Attorney-General.
(2)If the court refuses an application under this section by a person who is subject to a custodial supervision order, a later application cannot be made by that person for 3 years or such lesser period as the court directs.
With respect to this application, I note that the Secretary to the DFFH is applying for variation pursuant to s 31(1)(b) of the Act. Accordingly, s 31(2) of the Act does not apply.
Section 32(1) provides that, on an application for variation of a CSO, the court must, by order:
(a) confirm the order; or
(b) vary the place of custody; or
(c)subject to this section, vary the order to a non-custodial supervision order.
Section 32(2) – (6) relevantly provides:
(2)The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
(3) In the case of … a forensic resident –
(a)the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the… forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b)in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the … forensic resident has complied with any conditions of their extended leave.
(4)If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5)The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
The Court of Appeal in Hammond (a Pseudonym) v Secretary to the Department of Health and Human Services & Ors[27] described the ‘critical issue’ in applications under s 32 of the Act as follows:
… in a case such as this concerned with an application for variation of a custodial supervision order, the court has two alternatives: first, confirm the order; or, secondly, vary it to a non-custodial supervision order. With respect to the second alternative – whether to vary the order – there is one critical issue that must be determined: is the court satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order?[28]
[27][2018] VSCA 356 (Priest and T Forrest JJA and Macaulay AJA) (‘Hammond’).
[28]Hammond [43] (emphasis in original).
Any determination under s 32 of the Act must be informed by the guiding principle in s 39(1) and the matters set out in s 40 of the Act. Section 39(1) provides:
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) and (2) relevantly provide:
(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 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.
(2)The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, unless it—
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on —
(i) the person’s mental condition; and
(ii)the possible effect of the proposed order on the person’s behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b)has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c)is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d)has considered any report of the family members or victims made under section 42; and
…
(e)has obtained and considered any other reports the court considers necessary.
The Court of Appeal in NOM v Director of Public Prosecutions (‘NOM’)[29] discussed the relationship between the guiding principle in s 39(1) and the matters to which the court must have regard under s 40(1):
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the applicant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[30]
[29](2012) 38 VR 618 (Redlich and Harper JJA and Curtain AJA).
[30] Ibid 633 [47] (footnotes omitted).
Expert evidence
The Court received four expert reports filed by the Secretary:
• Risk assessment report by Mr William Wainwright dated 23 July 2021 (‘first report’).[31]
[31]Exhibit A.
• Addendum to risk assessment report by Mr William Wainwright dated 4 October 2021 (‘addendum report’).[32]
• Progress report by Dina Abdul Salam dated 8 August 2021.
· Report to Supreme Court by Carolyn Husenovic dated 26 August 2021.
[32]Exhibit B. This report was filed by the Secretary in response to a concern raised by me, via an email to the parties on 1 October 2021, that the original report did not satisfy the requirement under s 40(2)(a)(ii) of the Act.
It would be correct to say that the various expert reports painted a very positive picture of the progress made by WT from the time of the making of the CSO, and in particular, since the grant of extended leave. No behaviours of concern had been exhibited by him, and he was considered to be very accepting of the high level of supervision and support provided to him.
I had regard to these reports when considering the application for FEL and was satisfied on the evidence available that the threshold in s 57(2) of the Act had been met. I now turn to consider these reports, and the evidence of Mr Wainwright who was called at the hearing on the primary application.
WT was referred to Mr Wainwright, forensic psychologist, for the purposes of assessing Mr Toohey’s risk of future offending and his disability support needs. In preparing his two reports, Mr Wainwright had access to earlier risk assessment materials, as well as various neuropsychological and other reports.[33]
[33]First Report by William Wainwright, 23 July 2021, 2.
In terms of his risk assessment, Mr Wainwright was aided by the use of WT’s most recent results of the Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend – General (‘ARMIDILO-G’) tool. Mr Wainwright provided the Court with a ‘risk summary’ with respect to WT:
Warwick’s overall risk rating, according to the factors measured by the ARMIDILO-G, is low, and his overall protective rating is high. Given this, Warwick’s overall adjusted risk is assessed to be low. This assessment remains contingent on Warwick remaining is (sic) his current living circumstances, attending therapy, having limited external stressors, and containing his access to internet and social media to supervised only. This risk summary level is consistent with the previous ARMADILO-G dated July 2020, written by Ms Dina Abdul.[34]
[34]Ibid 14 (emphasis omitted). The last line is a reference to a risk assessment by Ms Dina Abdul Salam, 24 July 2020.
Mr Wainwright qualified his opinion on Mr Toohey’s ‘risk rating’ as follows:
It is noted that Warwick’s risk rating is only valid while Warwick resides in the current environment. He is reliant on access to supervision for [assistance] with emotional regulation and validation in decision making and problem solving. It is important that the risk and protective considerations are evident within any future proposed change or transition plan for Warwick prior to the commencement of the transition process.[35]
[35]Ibid 15.
In his evidence before me, Mr Wainwright stated that ‘under the current conditions and supports,’ he considered the risk of re-offending posed by WT to be low.[36] Mr Wainwright referred the Court to his first report which detailed various supports funded by the National Disability Insurance Scheme (‘NDIS’) that are currently in place for WT, including education through the Victorian Certificate of Applied Learning (‘VCAL’) program and social activities such as attendance at football games and live performances in the company of support workers.[37] WT’s engagement in the community includes employment with an organisation called Ability Works Australia, where he works three days a week.
[36]Transcript 5.
[37]First report by William Wainwright, 23 July 2021, 11 – 12. The author notes that Mr Toohey’s support workers are all fluent in AUSLAN interpreting.
When asked by Mr Grant, who appeared for the Secretary, to identify any concerns arising from his risk assessment, Mr Wainwright grouped his concerns into three categories:[38]
[38]Transcript 6.
(a) Regulation of social media use. In his report, Mr Wainwright described WT as vulnerable on social media, particularly when communicating to strangers online. He recommended that WT’s online activities continue to be time-limited and supervised by support staff. Mr Wainwright suggested that WT’s social media accounts be randomly checked by staff to ensure that he is ‘not being exploited or engaging with strangers who may ask for money or [are] coercing’ him.[39]
(b) Isolation and loneliness. Mr Wainwright described isolation and loneliness as ‘both precipitating and perpetuating factors in [WT’s] depression.’[40] In his report, Mr Wainwright opined that WT is cautious when developing new friendships as he regards poor friendship choices in the past as a key factor in his involvement in the index offence.[41] I pause here to note an earlier finding of this Court that WT had formed a ‘strong bond’ with his co-offenders GF and JF prior to their offending – with WT and GF intimately involved – and it was in the context of a breakdown in the relationship between WT and his housemate, Robert Wright, that a joint decision was made by the three co-offenders to kill Mr Wright.[42] Notwithstanding this, Mr Wainwright opined in his report that he did not regard WT’s difficulty with interpersonal skills and developing friendships as ‘a risk to [WT] in terms of re-offending.’ He recommended that this area of concern continue to be a target for therapy.[43]
(c) The need to build emotional coping abilities. Mr Wainwright described WT’s difficulty with emotional coping as one of his vulnerabilities which poses a dynamic risk; that is, a risk associated with offending (including violence) that is triggered by changeable factors.[44] One of the changeable factors here is WT’s ability to cope emotionally with situations – affected by his conditions of dysexecutive syndrome, depression and anxiety – and thus it remains an intervention target in therapy.[45]
[39]First report 17.
[40]Ibid.
[41]First report 10.
[42]DPP v Toohey [2017] VSC 632, [24]-[26] (Jane Dixon J). See also, Re Toohey [2020] VSC 660 [30]-[31] (Taylor J).
[43]First report 10.
[44]First report 8 – 9.
[45]First report 9 – 10.
In terms of any supports that could be put in place to address these three areas of concern, Mr Wainwright opined:
I think the supports that are provided currently within the house do meet those needs, specifically the ability to monitor the social media.
…
Specifically the need to provide an environment that encourages and allows [for] communication and connection due to his disability and hearing impairment which has previously been limited, and finally to access services and to have staff members who understand the triggers to his emotional dysregulation or anxious reactions and put in the correct supports as needed in the situation, and have access to other supports through the NDIS that can support them as the staff members.[46]
[46]Transcript 6.
When asked if he held concerns around any pro-criminal or offence-specific behaviours exhibited by WT, Mr Wainwright stated that he did not.[47]
[47]Transcript 6.
As to the practical effects of varying WT’s CSO to a NCSO, Mr Wainwright opined that the current supports available to WT would not change in the event of variation. Mr Wainwright concluded his evidence in chief by stating: ‘I believe that if the conditions that he’s under were to remain then his risk will remain.’[48] I take this to mean that if the conditions of a NCSO largely reflected the conditions of the CSO, including a condition that WT continue to reside in accommodation provided by Expression Australia under the auspices of DFATS, then Mr Wainwright’s assessment of WT’s risk would remain as ‘low.’
[48]Transcript 7.
In cross-examination from Mr McAuliffe, who appeared for the Attorney-General, Mr Wainwright was directed to a portion of the progress report by Dina Abdul Salam dated 8 August 2021, clinical psychologist, which reads:
During some interpersonal conflicts, Mr Toohey has demonstrated positive problem solving, however, at times, he required prompting to perspective-take and communicate effectively when dysregulated.[49]
[49]Progress report by Dina Abdul Salam, 8 August 2021 [7].
Mr Wainwright responded that he was not aware of any interpersonal conflicts at the time of his interview with WT and his support worker, and that ‘any conflict[s] seemed to be of a mild nature’ and were quickly resolved.[50]
[50]Transcript 8.
Mr Wainwright was also directed to the report by Carolyn Husenovic dated 26 August 2021, in which Ms Husenovic, Disability Justice Coordinator, wrote:
Mr Toohey self-reported to Disability Justice Coordinator, Carolyn Husenovic, on 9 June 2021, that he had received a request to follow, Ms GF (a co offender), on the social media platform, Instagram. Mr Toohey stated that he deleted the request, blocked the person, and reported this to staff at Expression Australia.[51]
[51]Report to Supreme Court by Carolyn Husenovic, 26 August 2021, 7.
Mr Wainwright stated that he was not aware of Ms F having attempted to contact WT via social media. However, he expressed the view that were this to occur in future, ‘the strength of the relationship between Mr Toohey and the staff…is enough that…he would highlight this as a problem’ or show a level of concern that would enable staff to detect that there was a problem and respond appropriately.[52]
[52]Transcript 9.
Lastly, Mr McAuliffe referred Mr Wainwright to a section in his first report under the heading ‘Risk Summary’ which reads:
[Mr Toohey] has attended intensive treatment, and this has been of significant benefit to him. It is recommended that he continue intensive treatment as this is a key protective factor in the risk assessment.[53]
Mr Wainwright explained that ‘intensive treatment’ was a reference to offence-specific and offence-related treatment received in the past by WT. The treatment involved discussions between treating staff and WT on issues such as pro-offending attitudes, isolation, loneliness, and emotional dysregulation; areas of concern which, as stated above, are tied to WT’s risk of re-offending. However, Mr Wainwright clarified his recommendation that WT continue intensive treatment as follows:
I’m probably overstating my hand to say that [continued treatment] needs to be intensive; but I think regular, and…regular discussions and care teams ensuring that [WT’s] level of engagement, his level of understanding, and the reflective behaviour is monitored and reviewed.
[53]First report 14.
In cross-examination from Ms McGarvie, who appeared for WT, Mr Wainwright was asked whether there would ‘effectively be no significant effect on [WT’s] behaviour if the CSO was downgraded to a NCSO, if the same level of supports remain in place?’[54] Mr Wainwright agreed with this proposition.
[54]Transcript 12. This question was asked by Ms McGarvie in reference to the addendum report by Mr Wainwright which specifically addresses s 40(2)(a)(ii) of the Act.
The Secretary’s other expert witnesses, Ms Salam and Ms Husenovic, were not called to give evidence. I have had regard to their reports pursuant to ss 40(2)(ab) and 40(2)(e) of the Act in determining this application.
Submissions
The Court received written submissions from the Secretary to the DFFH and heard briefly from Mr Grant who submitted that the evidence on this application does support variation. In the Secretary’s view, a NCSO is the minimum restrictive position for WT that still provides adequate protection for the community.[55]
[55]Transcript 15.
Mr McAuliffe indicated to the Court that the Secretary’s submissions were adopted by the Attorney-General.
Ms McGarvie also adopted the Secretary’s submissions, adding that WT had been taken through the conditions of the NCSO proposed by the Secretary and that he had consented to, and agreed to comply with, all of the conditions.[56]
[56]Email from Diane Chapman, solicitor, to the Court on 4 October 2021.
Analysis
I accept in this case that the conditions of the NCSO proposed by the parties largely mirror the conditions of the current CSO, meaning that WT’s day-to-day arrangements would not change in any substantial way were the order to be varied. However, this does not absolve the Court of the requirement to weigh in the balance all of the factors in s 40(1) – taking into account the principle stated in s 39 – and apply the test in s 32(2) of the Act which prevents a court from ‘ordering a variation unless satisfied on the available evidence that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person.’[57]
[57]Hammond [41].
Variation of a CSO to a NCSO marks a significant reduction in the degree of supervision required by a court over a person who has been declared liable to supervision under Part 5 of the Act. Pursuant to a CSO, a person is detained in custody and committed to an ‘appropriate place’ – that is, a designated mental health facility, a residential treatment facility, or prison if there is no practicable alternative.[58] The effect of varying a CSO to a NCSO is to release a person from custody on conditions specified by the court, and in doing so lessens the supervision received by that person to community-based, rather than custodial.
[58]The Act, ss 3(1) and 26(3).
Turning to the relevant provisions above, namely ss 32(2), 39 and 40(1) of the Act, I adopt the approach of the majority of the Court of Appeal in Hammond set out at [33] to [45] and applied by Lasry J in Re Hammond [2019] VSC 112R. In Hammond, Justices of Appeal Priest and T Forrest discussed the relationship between ss 32(2), 39 and 40(1) of the Act and noted that in determining the critical issue whether it is satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of a person on a NCSO, the court must take into account the cumulative considerations set out in s 40(1).[59]
[59]Hammond [44]. See also, Re Hammond [2019] VSC 112R [42].
Dealing first with the s 40(1) matters, their Honours described these as ‘generic’ in the sense that they apply to a range of different orders under the Act, and ‘cumulative’ to the extent that they must each be ‘weighed in the balance.’[60] With respect to s 40(1)(c) which refers to the applicant’s risk of endangerment – different from, but relevant to, the test under s 32(2) of the Act – their Honours stated:
In determining [the] critical issue, the court must…take into account the cumulative considerations set out in s 40(1), including whether the persons is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment, and the need to protect people from such danger. If, after having regard to the evidence bearing on those cumulative requirements, the court cannot be satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order, variation of the order must be refused.[61]
[60]Hammond, [40]-[44].
[61]Hammond [44] (emphasis in original).
Concerning the risk of endangerment, the Court of Appeal in NOM stated:
Endangerment is about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment…The ordinary meaning of endangerment entails the concept of chance or risk. The terms of section 40(1)(c) requires a court to assess whether a person is ‘likely to endanger themselves or others’. This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the ‘chance, risk’ or ‘peril of it’ eventuating is minimal then a person subject to a supervision order is not necessarily ‘likely to endanger’ himself or others under section 40(1)(c).[62]
[62]NOM [58] (footnotes omitted).
In assessing whether WT is likely to endanger himself or others if placed on a NCSO, along with the other requirements set out in s 40(1) and the principle in s 39, I accept that there was no challenge to the evidence, opinions or recommendations of the Secretary’s witnesses. I also have regard to this in making the finding of fact required of me under s 32(2) of the Act. In the circumstances, I accept the evidence on this application, with a focus on the following aspects as they relate to s 40(1) of the Act:
· Section 40(1)(a): As a profoundly deaf person with a mild intellectual disability, the nature of WT’s condition is ‘lifelong’ as described by Mr Wainwright.[63] As such, he is likely to require lifelong disability support.
[63]First report 14.
· Section 40(1)(b): The relationship between WT’s mental health conditions, his disabilities and the offending conduct has features of being social or situational in the sense that, as noted by Mr Wainwright, WT ‘attributes poor friendship choices as being a key factor in his involvement in the offence.’[64] This insight is consistent with the earlier findings of Jane Dixon J that WT had, prior to his offending, ‘fallen out with the deceased and did not wish to continue sharing his accommodation with him. He was romantically involved with Ms F and had formed a strong bond with both Ms F and Mr F.’[65] Thus, the relationship here under s 40(1)(b) of the Act can be distinguished from the relationship seen in cases where the offender was, for example, floridly psychotic at the time he or she committed the offence and has since stabilised with treatment. In contrast, WT’s own insights into the reasons for his offending conduct are outlined in the decision of Re Toohey [2019] VSC 730 at [15] in which it is observed, ‘Mr Toohey claims that Ms F raised the idea of killing the deceased and that he felt pressured to go through with the plan’. Notably, Mr Wainwright’s evidence on the current application is that WT’s poor friendship choices at the time of the index offending are no longer a risk to him in terms of re-offending. This opinion is of course contingent upon WT’s existing day-to-day supports remaining in place.
[64]First report 10.
[65]DPP v Toohey, F and F (Ruling No 2 – Liability for supervision and extension of bail) [2016] VSC 827 [31] (Jane Dixon J).
· Section 40(1)(c): I accept Mr Wainwright’s opinion that were WT to be placed on an NCSO, his low risk of future offending – including violence – would not change, provided that the existing protective factors remain.[66] Accordingly, I am satisfied that WT is not likely to endanger himself or others if released on a NCSO.
· Section 40(1)(d): In light of WT’s low risk of re-offending, the need to protect people from such danger as contemplated by s 40(1)(c) is not a prominent consideration in this case.
· Section 40(1)(e): This is not a case where WT is seeking a NCSO with conditions that will enable him to live independently in the community. What is proposed by the Secretary, with the support of WT and his treating staff, is that he continue to reside in accommodation described in the leave plan as ‘a Supported Disability Accommodation (SDA) with Supported Independent Living (SIL) provided by Expression Australia.’[67] In my view, the specialist services provided by Expression Australia to WT, along with the evidence that he is well-adjusted in the accommodation and engages positively with staff, amount to adequate resources available for the treatment and support of WT in the community.
[66]Transcript 12.
[67]Leave Plan by Mr Nik Nikolovski, Forensic Residential Services, 4 October 2021, 1.
Finally, in resolving the issue pursuant to s 32(2), I am satisfied on the evidence available, having weighed in the balance the above s 40(1) factors and applied the principle of parsimony in s 39 of the Act, that the safety of WT or members of the public will not be seriously endangered as a result of the release of WT on an NCSO.
Conclusion
I grant the application for variation of the CSO to a NCSO. The NCSO is on the conditions specified in the order.
Pursuant to s 32(5) of the Act, I direct that the matter be brought back to this Court for further review within two years from the date of these orders; that is, no later than 25 August 2024.
---
0
3
0