2.38 The discussion above of the disadvantages faced by offenders with an intellectual disability raises the final question of whether they should be dealt with by the criminal justice system at all. A specific term of the Commission’s reference was whether, and to what extent, people with an intellectual disability should be diverted from the criminal justice system, including consideration of the custodial and non-custodial alternatives to sentencing and detention. Diversion schemes are sometimes used when it is believed that the usual punishments would be inappropriate or ineffective; for example, in relation to juveniles, drug offenders and certain types of sex offenders. The advantages and disadvantages of the different forms of diversion have been discussed extensively elsewhere.73 2.39 Diversion from the criminal justice system means different things to different people - for some it means special units within the mainstream options, while for others it means transferring people from the criminal justice system into a completely separate system. Diversion is difficult to define precisely because many “alternatives” have now been incorporated within the mainstream criminal justice system (for example, the use of mediation or other forms of alternative dispute resolution, or offender
rehabilitation programs). Also, a number of measures sometimes described as “diversionary” may better be seen as alternative penalties. Many submissions received by the Commission supported diversion of some kind for people with an intellectual disability.74
2.40 However, the diversion of people with an intellectual disability does have its critics. A report of the Victorian Office of the Public Advocate argued that a decision by police not to charge because of a perception that people with an intellectual disability are childlike and therefore not “responsible” for their actions, or in need of “treatment” rather than legal sanctions, is not in the interests of the person (or the community), as the person is denied the right to an open examination of their guilt or innocence. The diversion away from the criminal justice system may also lead to additional social control or other adverse consequences.75 By contrast, the New South Wales Attorney General’s Committee considered that discretion should be used prior to charging an offender with an intellectual disability, such as is already available to police when administering cautions to children. While not advocating a lenient approach which would reinforce unacceptable behaviour in such an offender, the Committee considered that, in certain situations, having the police firmly impress on the offender that the behaviour is
inappropriate may be beneficial.76
2.41 Various submissions have supported the second approach, considering it appropriate to have an option whether or not to involve a person with an intellectual disability in the criminal justice system, particularly for minor crimes. For example, the Commonwealth Office of Legal Aid and Family Services supported diversion and rejected the involvement of people with an intellectual disability in the system merely for the sake of applying the principle of normalisation. It pointed out that taking the principle to its extreme would mean denying these people any special procedures within the criminal justice system.77 Also, the Legal Aid Commission of New South Wales stated that the option of not charging is
appropriate for people with an intellectual disability in some cases, in the same way that police may exercise this option for non-disabled people, especially given the added trauma and distress that a person with an intellectual disability may face.78 Diversion may be most appropriate for cases where the accused has such a severe level of disability that he or she is incapable of understanding the nature and effect of the alleged crime or the proceedings. In such cases prosecution is not in the public interest.79 Automatic diversion, however, assumes that all people with an intellectual disability are the same, without allowing for individual levels of responsibility, and poses the problem of where all these people are to be diverted, given that services and facilities in general are already inadequate. It may be in the interests of the accused to receive a finite penalty within the criminal justice system, rather than indefinite supervision or detention under some diversionary options.
2.42 Diversion to some extent already occurs at various stages of the criminal justice system, for example:
Police may not proceed against a person with an intellectual disability (see Chapter 4). Concern has been expressed, however about vesting in the police, who do not exercise legislative power, “discretionary powers which, for practical purposes, may amount to powers to make law, or dispense with compliance with the law”.80
Some offences can be dismissed at the Local Courts level because of the person’s disability (Mental Health (Criminal Procedure) Act 1990 (NSW), s 32 - see Chapter 5).
People who are unfit to be tried or found not guilty on the ground on mental illness follow a different path within the criminal justice system and are ultimately governed by the recommendations of the Mental Health Review Tribunal (see Chapters 5 and 6).
After conviction some people are “diverted” to special units (see Chapter 11).
2.43 The Commission does not consider that there should be automatic diversion from the criminal justice system. The appropriate treatment of a person with an intellectual disability should be
considered. The Commission’s recommendations for reform of such procedures at the various stages of the criminal justice system are outlined in the remainder of this Report.
FOOTNOTES
1. For the purposes of this chapter, “crimes” will refer to those offences found in the Crimes Act 1900 (NSW) and the Summary Offences Act 1988 (NSW), together with common law crimes.
2. See Chapter 3 for an explanation of this term.
3. J Noble and R Conley “Towards an epidemiology of relevant attributes” in R Conley, R Luckasson and G Bouthilet (eds) The Criminal Justice System and Mental Retardation: Defendants and Victims (Paul H Brookes, Baltimore, 1992) at 17-53; A MacEachron “Mentally retarded offenders: prevalence and characteristics” (1979) 84 (2) American Journal of Mental Deficiency at 165-176 as cited in K Deane “Better represented by a poodle: The case of Dominic Simm” (1994) 15 Socio-Legal Bulletin 47 at 48; Roeher Institute No More Victims: A Manual to Guide the Police in Addressing the Sexual Abuse of People with a Mental Handicap (Roeher Institute, Ontario, 1992) at 5-9.
4. See J Dudley Living with Stigma: The Plight of the People who we Label Mentally Retarded (Charles C Thomas, Illinois, 1983).
5. Intellectual Disability Rights Service Submission (6 January 1992) at 2.
6. Lack of data in this particular area is linked to the problem of a general paucity of routine data on the personal characteristics, such as ethnicity and socio-economic status, of both offenders and victims who enter the system: Letter from the New South Wales Bureau of Crime Statistics and Research to the Commission dated 13 September 1995.
7. Legal Aid Commission of New South Wales Submission (8 January 1992) at 1.
8. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 34, referring to S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (Sydney, November 1988) at 39.
9. J Cockram, R Jackson and R Underwood “People with an intellectual disability and the criminal justice system: The family perspective”, paper presented at Partnerships for the Future, 6th Joint National Conference of the National Council of Intellectual Disability and the Australian Society for the Study of Intellectual Disability (26-30 October 1994, Perth) (“Cockram, Jackson and Underwood (1994a)”) at 8.
10. See for example Hayes and Craddock at 30. For administrative purposes, an estimate of 1% is generally used, while 3% is regarded as the highest estimate: Hayes and Craddock at 31. 11. Hayes and McIlwain at 47. This study assessed the prevalence of intellectual disability in five
New South Wales prisons: Mulawa Training and Detention Centre for Women, Central Industrial Prison, Parramatta Gaol, Metropolitan Remand Centre and Broken Hill Gaol. The five gaols held a total population of 1,318 prisoners of whom 675 were screened: at 22.
12. New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993) (“NSWLRC RR 4”); and New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Two Rural Courts (Research Report 5, 1996) (“NSWLRC RR 5”).
13. NSWLRC RR 5 at para 3.67.
14. G Gudjonsson, I Clare, S Rutter and J Pearse Persons at Risk During Interviews in Police Custody: The Identification of Vulnerabilities (Royal Commission on Criminal Justice, HMSO, 1993) at 24. See also I Lyall, A J Holland, S Collins and P Styles “Incidence of persons with a learning disability detained in police custody: A needs assessment for service development” (1995) 35 Medicine, Science and the Law at 61-71.
15. See also NSWLRC RR 4 at paras 1.22-1.24 for a discussion of possible reasons for over- representation in prison.
16. C A Buser, P A Leone and M E Bannon “Segregation: Does educating the handicapped stop here?” (1987) 49 Corrections Today at 17.
17. J Zimmerman, W D Rich, I Keilitz and P K Broder “Some observations on the link between learning disabilities and juvenile delinquency” (1981) 9 Journal of Criminal Justice 1 at 10. 18. Hayes and McIlwain at 10.
19. Hayes and Craddock at 1-2.
20. K Deane and W Glaser The Characteristics and Prison Experience of Offenders with an Intellectual Disability: An Australian Study (University of Melbourne, 1994) at 1.
21. J Turk “Forensic aspects of mental handicap” (1989) 155 British Journal of Psychiatry 591 at 592, cited in Hayes and Craddock at 42.
22. See J Cockram, R Jackson and R Underwood “Attitudes towards people with an intellectual disability: Is there justice?”, paper presented at the First International Congress on Mental Retardation: The Mentally Retarded in the 2000’s Society (Rome, March 1994) (“Cockram, Underwood and Jackson (1994b)”) at 4. See also J Bright “Intellectual disability and the criminal justice system: New developments” (1989) 63 Law Institute Journal 933.
23. New South Wales Anti-Discrimination Board Discrimination and Intellectual Handicap (1981) at 320.
24. NSWLRC RR 4 at para 1.22.
25. See Cockram, Jackson and Underwood (1994b) at 4. 26. Hayes and McIlwain at 10.
27. NSWLRC RR 4 at para 1.22.
28. NSWLRC RR 4 at para 1.22; and Cockram, Jackson and Underwood (1994b) at 4.
29. M Ierace “Acting for the intellectually disabled offender” (1987) 25 (4) Law Society Journal 42 at 43; and Bright at 933. See also para 11.33.
30. Hayes and Craddock at 144.
31. W Wolfensberger A Brief Introduction to Social Role Valorisation as a High Order Concept for Structuring Human Services (Training Institute for Human Service Planning, Leadership and Change Agentry, Syracuse University, Syracuse NY, 1992) cited in Cockram, Jackson and Underwood (1994b) at 4.
32. Cockram, Jackson and Underwood (1994b). 33. Cockram, Jackson and Underwood (1994b) at 16.
34. Associate Professor L Gething, Community Disability and Ageing Program, University of Sydney Submission (5 July 1992) at 1.
35. L Gething Attitudes Towards People with an Intellectual Disability of Professionals within the Judicial System (Report compiled for the New South Wales Law Reform Commission, Community Disability and Ageing Program, University of Sydney, 14 September 1992). This preliminary report relied upon information taken from the computerised database for the Interaction with Disabled Persons Scale, which the report argues “is the only widely validated Australian instrument designed to measure community and professional attitudes towards people
with disabilities”: at 2. The size of the overall sample, and the small percentage of legal personnel (59 of a total 481), suggests that a larger survey of this group is necessary to gather information about their attitudes to, and the accuracy of their knowledge about, intellectual disability: at 10.
36. Deane and Glaser at 6.
37. Dr W Glaser Submission (23 August 1995) at 2. 38. Hayes and Craddock at 40.
39. Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales, Australia The Missing Services (Departments of Corrective Services and Youth and Community Services, Report, 1985) (“The Missing Services Report”) at 24. See also M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 5.
40. Cockram, Jackson and Underwood (1994b) at 3. 41. Ierace (1989) at 5.
42. The Missing Services Report at 24.
43. Confidential Submission (24 July 1992) at 2.
44. S Hodgins “Mental disorder, intellectual deficiency and crime: Evidence from a birth cohort” (1992) 49 (6) Archives of General Psychiatry 476.
45. Examples include the burning down of the Downunder Backpackers Hostel at Kings Cross (The Sydney Morning Herald (12 December 1992) at 44 and The Weekend Australian (12-13
December 1992) at 5); the bashing murder of an elderly woman near Newcastle (The Newcastle Herald (3 April 1993) at 1); and the strangling of a six year old girl (The Australian (23 March 1995) at 6).
46. Hayes and Craddock at 44. See also Deane and Glaser at 3-4.
47. See Deane and Glaser at 4; G P Jones and K Coombes The Prevalence of Intellectual Deficit among the West Australian Prisoner Population (Department of Corrective Services, Western Australia, October 1990) at 30.
48. For example, Deane and Glaser at 4.
49. Hayes and Craddock at 44, referring to S Hayes, “The intellectually disabled sex offender”, paper presented at the conference Sex Offenders: Management Strategies for the 1990s (Office of Corrections and Health Department Victoria, Melbourne, 1990) at 89-94; S Hayes “Sex offenders” (1991) 17(a) Australian and New Zealand Journal of Developmental Disabilities 221- 227.
50. Hayes and Craddock at 45-46.
51. Senior Constable P Fernandez Submission (8 December 1991) at 6.
52. “Disabled prisoners get raw deal with repeated jailings” (10-16 August 1995) Campus Review at 10.
53. New South Wales Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990) at 11. In this study, in the first six months of collection, 55 out of 855 (6.4%) adults referred to the Sexual Assault Service had an intellectual disability. The Report
also refers, at 11, to overseas research which revealed a high prevalence of sexual assault against people with an intellectual disability.
54. C Wilson The Incidence of Crime Victimization among Intellectually Disabled Adults (Final Report, National Police Research Unit, South Australia, 1990). This study found that people with an intellectual disability were twice as likely as people without this disability to be victims of a personal crime (eg assault). They were also one and a half times more likely to be victims of a property offence (eg theft).
55. For an overview of Australian and overseas studies of prevalence of victimisation of people with an intellectual disability, see Appendix B, Table 3.
56. K Johnson, R Andrew and V Topp Silent Victims: A Study of People with Intellectual Disabilities as Victims of Crime (Office of the Public Advocate, Victoria, 1988). In Victoria, 19 agencies agreed to monitor (during the last quarter of 1987) their cases of alleged crime against people with an intellectual disability. The agencies included government and non-government
organisations. Though the study stated that the data should be treated as tentative for a number of reasons, the survey revealed that the overwhelming majority of alleged crimes reported to agencies during the study period involved sexual offences: at Appendix 4.
57. Wilson at (ii).
58. Johnson, Andrew and Topp at 48.
59. Public Interest Advocacy Centre, cited in the Standing Committee on Social Issues’ Report Juvenile Justice in New South Wales (Parliament of New South Wales, Legislative Council, Standing Committee on Social Issues, Report 4, 1992) at 25.
60. C Wilson and N Brewer “The incidence of crime victimisation of individuals with an intellectual disability” (1992) 27 (2) Australian Psychologist 114.
61. Wilson at (ii).
62. D Sobsey and T Doe “Patterns of sexual abuse and assault” (1991) 9 (3) Sexuality and Disability 243 at 255.
63. Examples include the elderly invalid pensioner who allegedly gave away his home to a young woman who had promised to look after him, but instead, allegedly verbally and physically abused him and then threw him out (see The Sydney Morning Herald (29 March 1993) at 1); the robbery and bashing to death of a pensioner who had lived in constant fear of a violent death after schoolyard experiences of taunts and bashings (see The Sydney Morning Herald (21 April 1994) at 2); and stories alleging abuse in institutions, hostels and boarding houses feature frequently, especially involving staff members.
64. Johnson, Andrew and Topp at 25-27.
65. Intellectual Disability Rights Service Submission (16 October 1992) at 4-5.
66. Recent reports include the New South Wales Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (1988); the Youth Justice Coalition (NSW) Kids in Justice: A Blueprint for the 90s (1990); the New South Wales Legislative Council’s Standing Committee on Social Issues Juvenile Justice in New South Wales (Report 4, 1992), Juvenile Justice Advisory Council of New South Wales Future Directions for Juvenile Justice in New South Wales (Green Paper, 1993); and Breaking the Crime Cycle: New Directions for Juvenile Justice in New South Wales (New South Wales Government White Paper, August 1994). See also New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System:
Courts and Sentencing Issues (Discussion Paper 35, 1994) (“NSWLRC DP 35”) at paras 13.3- 13.8.
67. Royal Commission into Aboriginal Deaths in Custody National Report (AGPS, Canberra, 1991). See also NSWLRC DP 35 at paras 13.9-13.12.
68. NSWLRC RR 5 at ix.
69. NSWLRC DP 35 at para 13.11.
70. Human Rights and Equal Opportunity Commission Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness (AGPS, 1993) (the “Burdekin Report”), Ch 21.
71. NSWLRC DP 35 at paras 13.13-13.15. 72. NSWLRC RR 4 at paras 1.36-1.43.
73. See, for example, R Snashall (ed) Pre-Trial Diversion for Adult Offenders (Australian Institute of Criminology, Seminar Proceedings 10, 1985); and New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Policing Issues
(Discussion Paper 29, 1993) (“NSWLRC DP 29”), Ch 7.
74. For example, Mr M Porter Submission (27 October 1993); New South Wales Council for Intellectual Disability Submission (16 December 1993) at 5; Office of the Director of Public Prosecutions, New South Wales Submission (7 February 1994) at 2; Legal Aid Commission of New South Wales Submission (2 February 1994) at 2; and Office of the Public Guardian, New South Wales Submission (1 March 1995) at 3.
75. L M Osman Finding New Ways: A Review of Services to the Person with Intellectual Disability in the Victorian Criminal Justice System (Office of the Public Advocate, Victoria, 1988) at 19. 76. New South Wales - Attorney General’s Department The Intellectually Disabled in the Criminal
Justice System (Issues Paper, 1991) at 12.
77. Australia - Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 2-3.
78. Legal Aid Commission of New South Wales Submission (24 July 1992) at 3.
79. S Hayes “Prosecutorial discretion and mentally abnormal offenders” in I Potas (ed) Prosecutorial Discretion (Australian Institute of Criminology, Seminar Proceedings 6, Canberra, 1984) 191 at 195.
80. A M Gleeson in Keeping the Peace, Police Accountability and Oversight, RIPAA/ NSW Office of the Ombudsman, A National Conference (Nikko Hotel, Potts Point, Sydney, 20-21 May 1993) at 4. See also D Lane “The Victoria Police Shopstealing Warning Programme as alternative dispute resolution” (August 1992) 3 (3) Australian Dispute Resolution Journal 151-166; and D O’Connor “Legal aspects of pre-trial diversion schemes” in Snashall at 35-40.
REPORT 80 (1996) - PEOPLE WITH AN INTELLECTUAL DISABILITY AND THE CRIMINAL JUSTICE SYSTEM
3. Definitions of Intellectual Disability