Re Toohey
[2020] VSC 660
•9 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 03174
| IN THE MATTER OF the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER OF an application by Warwick Toohey |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 September 2020 (on the papers) |
DATE OF JUDGMENT: | 9 October 2020 |
CASE MAY BE CITED AS: | Re Toohey |
MEDIUM NEUTRAL CITATION: | [2020] VSC 660 |
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COMMON LAW – Mental impairment – Review of Custodial Supervision Order – Application for Extended Leave – Whether granting the application would seriously endanger the applicant or members of the public – Application supported by the Secretary to the Department of Health and Human Services and Attorney-General – Custodial Supervision Order confirmed – Extended Leave granted for a period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Paul Vale Criminal Law | |
| For the Secretary to the Department of Health and Human Services | Department of Health and Human Services | |
| For the Attorney-General | Victorian Government Solicitor’s Office | |
| For the Director of Public Prosecutions | Office of Public Prosecutions |
HER HONOUR:
On 15 January 2015 Warwick Toohey, Jake Fairest and Georgia Fields killed Mr Toohey’s housemate by forcing him over a second-floor apartment balcony. He died from catastrophic injuries to the head.
Mr Toohey, Mr Fairest and Ms Fields are each profoundly deaf, as was the deceased. Mr Toohey and Mr Fairest both suffer from an intellectual disability. Ms Fields has atypical autism and low intelligence.
A jury found Mr Toohey, Mr Fairest and Ms Fields unfit to stand trial for the charge of murder. Afterwards the Court determined that they were unlikely to become fit in the ensuing 12 months and directed a special hearing under s 12(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act).[1] At the conclusion of the special hearing, a jury found that each of Mr Toohey, Mr Fairest and Ms Fields had committed the offence of murder. They were each declared liable to supervision under Part 5 of the Act. Mr Toohey was remanded pending the making of a supervision order.[2]
[1]R v Fairest, Fields and Toohey [2016] VSC 329 (Croucher J).
[2]DPP v Toohey, Fairest and Fields [2016] VSC 827 (Jane Dixon J).
On 27 February 2017 Mr Toohey was placed on a custodial supervision order (CSO) for a nominal term of 25 years, commencing 15 February 2015.[3] He was committed to the custody of the Department of Health and Human Services (DHHS) at the Disability Forensic Assessment and Treatment Service (DFATS) Intensive Residential Treatment Program (IRTP). He has remained there since.
[3]DPP v Toohey [2017] VSC 632 (Jane Dixon J).
A review conducted on 1 February 2019 confirmed the CSO.[4] A further review of the CSO was ordered to be held within two years of that date.[5]
[4]Re Toohey [2019] VSC 730 (Jane Dixon J).
[5]The Act, s 32(5).
On 6 July 2020, the Secretary to the DHHS (Secretary) filed an application for extended leave on behalf of Mr Toohey.[6]
[6]The Act, s 57(1)(b).
Consequently, both the review and the application for extended leave now fall to be determined.
Each of Mr Toohey, the Secretary and the Attorney-General (Attorney) submit that Mr Toohey’s CSO ought to be confirmed and extended leave should be granted on the conditions proposed by the DHHS.
For the reasons that follow, the CSO is confirmed and a conditional grant of extended leave is made to Mr Toohey.
Manner of determination
This matter has been determined on the papers.
All parties consented to this manner of determination in accordance with the prevailing protocol.[7] I am satisfied that it is in the interests of justice to do so.
[7] Principles
On a further review of a CSO directed under s 32(5) of the Act, the Court must confirm the order, vary the place of custody or, subject to s 32, vary the CSO to a non-custodial supervision order (NCSO).[8] It is unnecessary to state the s 32 (2) and (3) preconditions for a variation of a CSO to a NCSO in this matter.
[8]The Act, s 32(1).
The Court may grant extended leave if satisfied on the evidence available that the safety of Mr Toohey or members of the public will not be seriously endangered as a result.[9]
[9]The Act, s 57(2).
‘Serious endangerment’ is undefined in the Act, but is a well understood concept. It encompasses both the probability that a harmful event might occur and the gravity of harm in that eventuality. At its core is the probability of risk. The focus is on the likelihood of some harm materialising:
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. In the absence of any parliamentary guidance on the meaning of the word, this much is clear from the term’s ordinary and literal meaning. … The ordinary meaning of endangerment entails the concept of chance or risk.[10]
[10]NOM v DPP [2012] VSCA 198, (Redlich and Harper JJA, Curtain AJA) (NOM), [58].
In determining both the review of the CSO and the application for extended leave, the Court must have regard to the matters delineated in s 40(1) of the Act and must apply the principle of parsimony as stated in s 39(1) of the Act.
Materials Received
The Court cannot significantly reduce the degree of supervision to which a person is subject without obtaining and considering the materials and factors set out in s 40(2) of the Act.
Initially, the following material was received by the Court:
(a) Report of Carolyn Husenovic, Acting Senior Disability Justice Coordinator (DHHS) dated 28 August 2020;
(b) Risk Assessment Report of Dina Abdul Salam, Clinician (Provisional Psychologist) (DFATS) dated 24 July 2020; and
(c) Leave Plan of Nick Nikolovksi, Forensic Residential Services Manager (DHHS) dated 25 August 2020.
The report of Ms Husenovic satisfied ss 40(2)(ab) and 41(3) of the Act. The Leave Plan of Mr Nikolovski satisfied s 40(2)(da) of the Act. However the report of Ms Salam did not satisfy s 40(2)(a) of the Act. That section mandates that I consider the report of at least one registered psychologist who has personally examined Mr Toohey as to his mental condition and the possible effects of the proposed order on his behaviour. ‘Registered psychologist’ is a defined term in s 3(1) of the Act. Ms Salam, as a provisional psychologist, did not satisfy that definition.
The issue was raised with the parties. As a result, Ms Salam provided an addendum report dated 1 October 2020. The addendum report states that she obtained her general registration as a psychologist on 3 September 2020. She has continued to personally examine the applicant. There have been no significant changes in him or in environmental factors affecting him since she assessed his risk using the ARMIDILO-G.[11]
[11]Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend – General.
Accordingly, I am satisfied that the report of Ms Salam, read together with her addendum report, satisfies s 40(2)(a) of the Act.
Notification of family members and victims
I am satisfied by the affidavit of Ms Louise Wilkinson, a solicitor for the Office of Public Prosecutions, sworn 15 September 2020 that the Director of Public Prosecutions has complied with her obligations under s 38C(2)(b) and (d) of the Act.
The Court has received no reports from a family member of Mr Toohey or a victim of the index offence.[12]
[12]The Act, s 42.
Personal Background and Index Offence
The applicant’s background and the circumstances of the index offence are extensively detailed elsewhere.[13] Here, it is sufficient to note the following.
[13]See the decisions cited in footnotes 1 to 4 inclusive.
The applicant is now aged 34 years. He was 28 years at the time of the index offence. He is profoundly deaf and has a mild intellectual disability. He also has diagnoses of attachment disorder, dysexecutive syndrome, depression and anxiety.
The applicant’s formative years were marked by abuse and neglect by his biological mother. He reports feeling that she hated him because he was deaf. The applicant was also exposed to his mother’s poor sexual boundaries and attempts at self-harm, reportedly witnessing at least one suicide attempt.
From the age of ten the applicant resided principally with a foster mother, although this was interspersed with periods of returning to live with his biological mother. A previous report noted that the applicant’s feelings towards his biological mother oscillated between trying to help her, as a person who needed protection, and feeling angry with her, as she had failed to protect him.[14]
[14]Report of Yvonne Maxwell, 20 December 2018, [19].
During his adolescence, the applicant moved to DHHS supported accommodation. It was there that he met the deceased.
In 2012 the applicant and deceased moved to independent accommodation in Ringwood. The relationship between them deteriorated.
In 2013 the applicant began a relationship with Ms Fields. She and Mr Fairest would regularly spend time with the applicant at the residence he shared with the deceased, a habit the deceased disliked. Tensions and differences escalated.
The applicant’s motivation for killing the deceased was apparently three-fold: the desire to be rid of household tensions; a desire to placate Ms Fields; and the belief that he could live with her if the deceased was killed.
On 15 January 2015 the applicant, Ms Fields and Mr Fairest discussed their plan to kill the deceased, including the method to do so. These discussions were captured by CCTV. That evening they confronted the deceased in the apartment. The applicant and Mr Fairest lifted him over the balcony handrail and let him fall. Ms Fields watched on.
Evidence
Report of Ms Husenovic
Ms Husenovic oversees the applicant’s Disability Justice Coordination on behalf of the DHHS. The ultimate goal is to transition the applicant successfully to community living. This involves regular liaison with DFATS regarding his progress and treatment, attendance at DFATS care team meetings, National Disability Insurance Scheme (NDIS) planning meetings and Forensic Leave Panel (FLP) hearings.
The multi-disciplinary treatment approach taken at the ITRP has, in the case of the applicant, included offence specific treatment, offence related treatment, vocational and educational activities, as well as targeted supports including communication aids and sensory items. Ms Husenovic reports that the applicant has responded well to all therapeutic interventions.
In February 2020 the applicant was offered a NDIS funded residency at a specialist disability accommodation (SDA) facility in Nunawading. This is the DHHS owned facility at which the applicant previously resided. It is operated by Expression Australia and its staff specialise in working with hearing impaired people.
On 29 July 2020 the FLP approved various escorted off-ground leave arrangements for the applicant. A transition plan for him was developed between DFATS and Expression Australia. At the date of Ms Husenovic’s report, the applicant had undertaken five day visits and three overnight visits to the SDA. Each was without incident and he was observed to mix well with both staff and residents.
The applicant has participated in structured vocational based TAFE lessons. He has expressed a desire to develop skills conducive to employment, reflected in the courses he has completed. The applicant’s enthusiasm for skill development is confirmed by his high attendance rate, attentiveness and positive engagement in the classes. In August 2020 the applicant was offered a supported employment position for two to three days a week through Ability Works. The arrangements had not been finalised at the time Ms Husenovic completed her report.
A particular issue identified during the therapeutic interventions at the ITRP was the applicant’s struggle to grasp abstract concepts and apply them to real life situations. Providing support to him to apply learned strategies is thought to be of assistance and it is anticipated that increased community access will provide him with opportunities to practise these strategies. An example was noted during one of the applicant’s visits to the SDA.
Prior to that visit, the applicant had been learning about how to deal with difficult emotions and situations. During the visit a resident of the SDA asked him about the index offence. The applicant was able to respond by stating that he did not wish to focus on the past. He later sought assistance from staff to help avoid that type of situation in the future.
Ms Husenovic noted that the applicant continues to enjoy the personal support of his foster mother and sister. During the restrictions on in-person meetings due to the COVID-19 virus, he has maintained contact with these family members through virtual means.
Addressing the impact of the COVID-19 restrictions on the circumstances of the applicant more broadly, Ms Husenovic notes that a number of visits to the SDA have been cancelled and both TAFE classes and NDIS outreach support are suspended. This has limited his ability to participate in and explore structured daytime activities. Nonetheless the applicant is reported as maintaining his enthusiasm to continue with treatment and practise learned strategies.
Overall Ms Husenovic reports that the applicant has made significant gains in his treatment since admission to the ITRP. His behaviour is consistently appropriate, both at the ITRP and in the community. Those involved in his care and treatment believe that he has reached a juncture in his recovery process where staged community transition is desirable.
If granted extended leave, the applicant’s transition plan will be managed by Expression Australia. He will continue to be supported by a care team comprised of representatives of DFATS[15], Disability Justice Coordination and NDIS Support Coordination.
[15]This will continue until the applicant is linked with appropriate behavioural support specialists under his NDIS plan, or insofar as required by any Court imposed condition.
Reports of Ms Salam
Ms Salam reports no change to the mental condition of the applicant secondary to his longstanding intellectual disability. He has developed a number of skills that mitigate some of the risk factors for violence that were present at the time of the index offence. He has expressed a strong desire to ‘stay out of trouble’ and states that he will do so by removing himself from ‘risky’ situations and seeking support.
Ms Salam notes that in 2015 the applicant was negatively influenced by his peers and also had a poor emotional coping ability and poor problem solving skills. Further, he lacked meaningful engagement in tasks and did not adequately use supports. These issues have been addressed in the treatment of the applicant at the ITRP. He has demonstrated progress in each area.
The applicant’s attachment disorder has previously led to relationship difficulties. In both professional and personal relationships he has become both over attached and under attached. Ms Salam notes that this disorder contributed to the applicant’s enmeshed relationship with Ms Fields and Mr Fairest in the lead up to the index offence. During his time at the ITRP, the applicant has been able to forge positive relationships with support staff and has been readily accepting of prosocial support and guidance once sufficient rapport is established.
The mental health of the applicant is regularly monitored by the Community Forensic Disability and Mental Health Service (CFDMHS). He is currently prescribed 60mg of Fluoxetine daily to treat anxiety and depression.
Historically, that anxiety has fluctuated depending on his environment and internal experiences. Ms Salam reports that the applicant has managed to effectively implement strategies to manage such fluctuations and shown considerable progress in his display and management of anxiety. This is illustrated by his lack of stress or anxiety response to the unexpected delays, and concomitant frustration, in his community transition process occasioned by the COVID-19 restrictions.
Overall, Ms Salam describes the mental state of the applicant as stable. He is continuously compliant with supervision and treatment.
The reports of Ms Salam consider the likely impact of the proposed extended leave on the applicant’s behaviour. She notes that in the nine-year period of the applicant’s previous residence at the SDA, his behaviour was appropriate and he complied with the structure and boundaries imposed. His move with the deceased to independent living was against the advice of staff. He had limited support and was influenced by anti-social peers. It was in this context that the index offence occurred. The applicant now identifies the SDA as a place that he enjoyed. He expresses enthusiasm and excitement at the prospect of returning.
The majority of the staff at the SDA are familiar with the applicant and well understand how to best support him and proactively manage his risk factors. They support his application for extended leave. The staff to resident ratio is small. Approximately three quarters of them are deaf and able to communicate proficiently with the applicant. In the event that extended leave is granted, the care team at DFATS will be able to train and support the SDA staff as required.
The SDA is not staffed between 9.00 am and 3.00 pm on weekdays. During that time it is proposed that the applicant will be supported by a NDIS outreach worker to work towards transition based goals, practise relapse prevention strategies and develop adaptive living skills. It is also anticipated that the applicant will use this time to participate in structured day-time activities including education and employment. The goal of the applicant’s transition plan is to increase his independence and access to the community so that his level of support can be gradually reduced.
Like Ms Husenovic, Ms Salam noted that the applicant has had difficulty comprehending some abstract aspects of his treatment. She also notes that he has difficulty retaining acquired information over extended periods. Ms Salam is of the opinion that these deficiencies can be addressed by the applicant being supported to regularly apply learned skills in the community. Ideally that would involve a gradual reduction in direct support so that he could generalise his learned skills and consolidate prosocial behaviours and routines. This would be best served at the SDA with the support of Expression Australia.
As already noted, Ms Salam assessed the applicant’s risk of violent re-offending using the ARMIDILO-G. It is a structured risk assessment tool for persons with intellectual disabilities who are at risk of general offending and combines dynamic risk and protective factors to produce an overall risk rating of future violence. The use of the tool focussed on the last 12 months.
The applicant’s main risk factors are his limited self-efficacy, emotional coping ability, relationships and access to services. He has an external locus of control and can be easily influenced by anti-social peers, particularly in the context of relationships. While Ms Salam did not identify any specific anti-social attitudes, she did note that the applicant can find it challenging to self-regulate or manage stressful and complex situations. His risk rating is low in an environment where he has immediate access to support staff.
The applicant’s protective factors were identified as being his access to support staff and compliance with treatment and supervision. His overall protective rating is moderate to high.
Combining the two, the applicant has an overall risk rating of low in the context of significant protective factors.
Ms Salam is of the opinion that if the applicant were to reside in the community absent pre-planning and structured supports, his risk rating may increase. She identified a number of future risk scenarios. First, if the applicant regularly engaged with anti-social peers who were encouraging of violence towards someone with whom the applicant was in conflict. Second, if the applicant experienced increased stress he may avoid professional support and revert to maladaptive coping strategies, such as damaging property or physically abusing others. Third, again in the context of increased stress, the applicant may be more susceptible to anti-social influences particularly if he did not have access to regular professional support. Fourth, if the applicant experienced ongoing conflict with a peer and felt unable to resolve or remove himself from it, he may be likely to revert to maladaptive coping strategies.
Ms Salam noted that the SDA will provide the applicant with an opportunity to engage in community based living while still having access to individually tailored supports. She is of the opinion that this transition will be of benefit to the applicant.
Leave Plan
The proposed leave plan outlines a step-down program to facilitate incremental reductions in the applicant’s level of supervision. Under it the applicant will increase his independent access to the community as he develops the application of his learned skills. His progress will be monitored by the SDA, with the support of DFATS and Disability Justice when needed.
The SDA has a COVID-19 delivery model, which varies its usual model so that it is currently staffed during the day and on weekdays. This has been done to accommodate residents whose normal schedules have been affected by the pandemic. Under either model the applicant will have access to 24 hour supervision. Further, the leave plan requires the applicant to be accompanied at all times when in the community.
Analysis
I am satisfied that the CSO should be confirmed pursuant to s 32(1)(a) of the Act. I note that the evidence does not raise issues that would require consideration of the alternative dispositions available on a review of a CSO, namely varying the place of custody or varying the CSO to a NCSO. Nor does any party make a submission that any such alternative disposition should be considered.
In considering the application for extended leave, I note that the applicant is profoundly deaf and suffers from a mild intellectual disability. He has significant deficits in the areas of executive functioning, communication and comprehension. These were present at the time of the index offence and directly linked to the finding that the applicant was unfit to stand trial.[16]
[16]See R v Fairest, Fields and Toohey [2016] VSC 329 [32]-[49] (Croucher J).
Since his admission to ITRP in February 2017, the applicant has worked with his treatment team to address these issues. The evidence demonstrates that he has not only achieved but exceeded his treatment goals. Further, I accept the evidence of Ms Salam that he poses a low risk of future offending in the context of ongoing access to support staff.
To this end, the residency offered at the SDA presents a unique opportunity for the applicant to transition to an environment that caters to his disability and risk profile while simultaneously offering opportunities for greater independence. He will continue to have access to a multi-disciplinary team made up of representatives from Expression Australia, DFATS, Disability Justice Coordination and the NDIS, which will ensure that he has adequate access to resources and treatment in the community.
I also consider as relevant that all parties support the application for extended leave.
Accordingly, considering the s 40(1) factors and applying the principle of parsimony in s 39, I am satisfied that the safety of the applicant and the community will not be seriously endangered if he is granted extended leave on the conditions proposed by DHHS.
Suppression Order
No party made an application that the public interest required the making of a suppression order under s 75 of the Act.
The issue was raised with the parties. It was indicated in an email that the applicant’s legal representatives were ‘supportive’ of such an order being made. That email also indicated that Ms Salam and Ms Fiona Griffiths (a registered psychologist who supervised Ms Salam) were similarly ‘supportive’, believing it to be of ‘therapeutic benefit’ to the applicant. As is customary, both the Attorney and the Secretary did not take a position.
While a s 75 order may be made on the Court’s own initiative as well as on the application of a party[17], I consider the absence of an application is in this matter significant. There are numerous unrestricted judgments of this Court referring to the applicant by name and detailing a large amount of information concerning both the index offence and impairments suffered by the applicant. Further, the fact and reasons for the imposition of the CSO and the first review of that CSO are also the subject of unrestricted judgments. In the circumstances, I do not consider reference in an email to ‘therapeutic benefit’ to be sufficient evidence for the Court to make a suppression order on its own motion.
[17]The Act, s 75(2).
Conclusion and Orders
The Orders of the Court will be:
1. Pursuant to s 32(1)(a) of the Act, the CSO is confirmed.
2. Pursuant to s 57 of the Act, the applicant is granted extended leave for a period of 12 months on the conditions detailed in the Leave Plan filed.
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