Section 32 of the Mental
Health (Criminal Procedure) Act 1990 (NSW) and Acting for
Clients with an Intellectual Disability in Contact with
the Criminal Justice System.
INTRODUCTION
Clients with an intellectual
disability have limited cognitive understanding. They
tend to read emotionally rather than rationally. They are
often incapable of understanding instructions or
information given to them on making informed decisions by
people such as the police. It is particularly important
for people with an intellectual disability to be
accompanied and assisted when being questioned by police
officers. The Criminal Justice Support Network (CJSN) is
a project of the Intellectual Disability Rights Service
(IDRS) that provides a 24 hour support service to assist
people with an intellectual disability in police
stations, at court attendances and during legal
appointments. A 24 hour state-wide phone number is the
operational key behind CJSN: 1300 665 908.
Currently police in New South Wales
receive little, if any, training about people with an
intellectual disability. They will often respond to the
intellectually disabled person’s emotional and
sometimes aggressive reactions and lack of compliance
(due to non-comprehension) with yet more aggression. This
serves to heighten the situation and make it worse.
Consequently, charges against clients with an
intellectual disability accelerate through interaction
with people who do not understand them.
Education of the police about
intellectual disability is essential in improving the
situation of offenders with an intellectual disability
throughout criminal justice processes. The attitude of
the police to the accused, and their awareness of the
person’s disability, govern the exercise by police
of their discretion to, for example, give a warning
rather than charge the person with a minor
offence.
SOME SIGNIFICANT SECTION 32
CASES INVOLVING PEOPLE WITH AN INTELLECTUAL
DISABILITY
DPP v Darren John Albon
[2000] NSWSC 896; BC200005344
DPP v Darren John Albon is a
prime example of where society itself has not been
adequately prepared to deal with a person with
challenging behaviour. This inadequacy on the part of
society is evidenced in the lack of appropriate existing
legislation, institutions or disability services. In this
case, these factors in combination resulted in a person
with an intellectual disability being housed in the
cheapest and most accessible form of institutional care:
gaol.
The case involved a successful
appeal by the DPP from a Local Court magistrate’s
decision to conditionally dismiss a charge of malicious
wounding under s32 Mental Health (Criminal Procedure)
Act 1990 (NSW) (MHCPA). The defendant had an
intellectual disability and had used a knife to cut two
fingers of another group home resident. He had already
spent ten months in gaol for the matter.
In the s32 application, the head of
the Corrective Services, Psychiatry Division, gave oral
evidence and recommended that the matter be dismissed
under s32. The Supreme Court considered it inappropriate
to abandon the defendant to the community generally. The
Court stated that a treatment plan was necessary to place
the defendant in the care of an appropriate person and
ensure that the defendant was not at large. It was
essential that the defendant was not left to his own
initiative to make contact with such a person.
This case failed due to a lack of
services. If adequate services had been available, it
would have been possible to put a treatment plan place
for Mr Albon, keeping him out of gaol. But no such
services could be accessed.
Sami El Mawas v DPP
[2005] NSWSC 243
Sami El Mawas v DPP was
another s32 case. Mr El Mawas was charged with various
offences including assault occasioning actual bodily
harm, malicious wounding and entering a building to
commit an indictable offence.
When the proceedings came before a
magistrate in the Local Court, Mr El Mawas’
barrister made an application under s32. A
psychologist’s report was provided to the magistrate
in support of Mr El Mawas’s application.
The magistrate declined to apply
s32. Her Honour was satisfied that Mr El Mawas was a
person suffering from a mental condition but found that
it was not appropriate to apply s32 because of the nature
of the offences.
In his appeal to the Supreme Court,
Mr El Mawas required the Court’s leave to appeal.
This was because there is no appeal of right from a
decision refusing to apply s32: s52(1) Crimes (Local
Courts Appeal and Review) Act 2001 (NSW).
Mr El Mawas’s argued that the
magistrate had incorrectly interpreted s32 and had made
an error when she refused to apply that section. This was
said to be of importance to the general law of criminal
responsibility and amount to a miscarriage of
justice.
In hearing the application for
leave to appeal, Justice Greg James of the Supreme Court
of New South Wales set out the elements that should be
considered when deciding whether it is appropriate to
apply s32. These are:
- whether the person is suffering
from a mental condition for which treatment is
available, the prospect for treatment, and whether the
magistrate can make an order for the treatment;
- the appropriateness of
proceeding under one legal regime as opposed to
another legal regime: for example, by the usual
criminal procedure or by an order for treatment under
the MHCPA; and
- the purpose of the criminal
process and the purpose of sentencing (e.g.
deterrence, community protection, rehabilitation), and
the purpose of the procedure under s32 (e.g. diverting
the offender from the criminal justice system,
community protection).
Justice James found that it is not
correct to say that the public interest in punishing the
defendant increases if the offence is more serious. His
Honour commented that the Court should be concerned with
the protection of the community, and that the
MHCPA recognised the notion that the community
would be protected by the provision of treatment for the
condition from which the defendant suffers.
His Honour criticised the decision
of Justice Howie in Confos v DPP [2004]
NSWSC 1159. He stated that when the Court is considering
the seriousness of any offending conduct, the degree to
which the defendant is disabled from being able to
control that conduct should not be excluded from
consideration, by focus only on how serious the offence
is.
Justice James agreed with Justice
Howie that it is the protection of the community with
which the Court is concerned, but he did not agree that
this renders it less likely that s32 will apply in more
serious cases. He asserted that the provision of
treatment recognises the concept of protection of the
community, and observed that the weight that is given to
the factors which magistrates are required to consider in
giving judgement, is a matter for each individual
magistrate.
His Honour concluded that the
magistrate had made an error at first instance because
she:
- considered that s32 could only
be applied if the specific features of the mental
condition had a causal relationship with the
offence;
- considered that it was
inappropriate to apply s32 to offences that were
serious or that were characterised by a degree of
planning; and
- failed to have regard to the
purpose of treatment.
Leave to appeal was accordingly
granted, and the appeal was upheld.
SECTION 32 CASE STUDIES
HIGHLIGHTING FUNDAMENTAL PROBLEMS FOR PRACTITIONERS
REPRESENTING CLIENTS WITH AN INTELLECTUAL
DISABILITY
I will illustrate in two case
studies some fundamental problems that practitioners are
likely to encounter in representing clients with an
intellectual disability. The cases are examples that
involve bail applications and applications under s32 of
the MHCPA. In both instances, agencies and
disability services were seen to assist offenders with an
intellectual disability to achieve the result of a
non-custodial sentence by supporting and implementing
treatment plans.
Obtaining a psychologist’s
report may not be enough to achieve a non-custodial
sentence in a serious matter. If the client is not known
to the Department of Ageing Disability and Home Care
(DADHC), practitioners should make a telephone call to a
local DADHC intake officer. As Mr Jim Simpson sets out in
his paper on services for offenders with an intellectual
disability: “DADHC acknowledges a high priority to
offenders with an intellectual disability in its service
provision”.
The names in the following case
examples have been changed to protect the identity of
each client.
Celia’s Story
Facts
Celia is 36 years of age and has an
intellectual disability. She lives with her elderly
parents who are both from a non English speaking
background. Last year Celia was charged with a string of
offences including: use carriage service so as to harass
x 21; falsely represent to police x 8; assault police x
4; resist arrest x 2; and refuse to give a breath test
upon request by police.
Celia had used a mobile phone to
make prank calls to emergency services in July last year.
Her local police station charged her with offences
relating to prank calls and consequently confiscated her
mobile phone. It was a condition of bail that she not
possess a mobile phone.
Celia had previously entered into a
two year phone contract to purchse the mobile that was
confiscated by the police. She was paying approximately
25% of her income towards the phone contract from her
employment income. She was anxious that she was paying
money for a phone she no longer had. Celia was upset
about this and in her mind she felt entitled to phone the
local police station to demand the return of her mobile.
When she phoned the police she was not able to verbalise
herself so she remained silent during these calls. She
was charged after police traced the calls to her home
phone and new mobile phone. This occurred again and
again.
During some of the arrests executed
on Celia, she put up a struggle and was charged with
assault police and resist arrest. A female police officer
had roughly and tightly held Celia’s arm during a
struggle which caused bruising from her elbow to her
shoulder. A CJSN support worker attended the police
station and later took photographs of Celia’s
arm.
IDRS was able to utilise the
services of the Behaviour Intervention Service (BIS) of
DADHC and put Celia in touch with further support
services. A s32 application was made on Celia’s
behalf. Evidence was called during this application from
DADHC Forensic Caseworkers on the history of why Celia
had offended, and alternatives to gaol were proposed for
dealing with Celia. A treatment plan was set up to allow
Celia to express her frustration in a more legally and
socially acceptable way. Celia also entered into a
contract where she could have her phones returned to
her.
The charges against Celia were
dismissed conditionally under s32 in December 2004. She
was allowed to have her mobile phones returned to her,
but due to the injury to her arm she was most upset with
the female police officer. She managed to find the
officer’s home address, and in late December 2004
and early January 2005, she allegedly sent two written
death threats to the officer’s home. Only two
sessions of the proposed treatment plan had been held at
that stage for Celia because the Christmas break period
had intervened. It was too early to see a marked
improvement in Celia’s behaviour
modification.
In late January 2005 the police
took the threats that Celia had made seriously and
relocated the officer subjected to the threats from her
home into a new security building. Forensic testing was
carried out on the letters and a finger print belonging
to Celia was found on one of them. A later search of
Celia’s home found a type writer with the same ink
set as the words of the letter. She had allegedly made
further 000 calls and was then charged with “send
document threatening death, assault police, and false
representation causing police
investigation”.
At the police station she was told
that she would have to agree to a buccal swab or it would
be necessary for three police officers to hold her down,
sit on her, and use force to pull out ten hairs from her
head. This left Celia shaking and crying.
As Celia’s acting legal
representative, I attended the police station and
indicated to police that Celia did not have the capacity
to understand the enormity of the decision and that she
was not in a position to consent to the procedure. The
police asked me to put this view in writing, which I did.
They said that the Custody Sergeant could order that the
procedure occur by force.
I was then called away to assist
another client but requested that the police do nothing
until a witness was present from CJSN. This witness
arrived and police did not ultimately proceed with the
taking of hairs.
The steps taken to secure
bail
Celia was refused police
bail.
After two failed bail applications
before a particularly difficult magistrate, the
magistrate was informed it may take about six weeks to
obtain the necessary reports for a s32 application.
Rather than set it down in six weeks and leave Celia
incarcerated, we requested that his Honour set the matter
down for mention in two weeks. This was to see how the
reports were progressing so that an estimate could be
made in light of more accurate information as to when the
reports would be finalised. This gave Celia another
chance at applying for bail, hopefully before a more
lenient magistrate. The matter was listed before a
different magistrate for mention a month and a half after
Celia had beenincarcerated.
A bail application was made which
included making submissions on the appropriateness of
bail, and involved, amongst other things, addressing the
matters outlined below.
1. The circumstances of the
offence
It was emphasised that Celia’s
disability was linked to the commission of the offence.
She was not motivated by greed or drugs, but was simply
acting like a naughty child playing a prank on a
teacher.
While it was admitted that Celia
wrote the letters, it was essential that care was taken
not to lock her into a plea of guilty after the failure
of two s32 applications. This is because there may have
been a capacity issue that required close examination by
a medical expert. No discussion occurred before the Court
concerning Celia’s capacity to understand what she
was doing. An opinion was put by an observer of the facts
that she was venting her frustration at the officer who
hurt her arm. She had sent the letter using her limited
vocabulary range which included the word
“kill”, instead of the word “hate”.
The letter also set a time frame of two days when the
officer would be killed. It was put to the magistrate
that this time frame had passed and that, in fact,
another two weeks had passed and no attempt had been made
to carry out the threat. She wanted to make the officer
as scared as she had felt when her arm was hurt during
her arrest.
2. The likely penalty on
conviction
Celia had already spent a month and
a half in prison and it was her first time in prison,
notwithstanding that she had a lengthy record and this
charge carried a maximum imprisonment term of ten years.
Looking at the mitigating factors and circumstances of
the offence, it was likely that her imprisonment term
would not be a lengthy one, if she was imprisoned at
all.
3. Celia’s risk to the
community and the police officer
What helped was having Celia
consent to an AVO for two years and a bail condition that
she would not enter the suburb where the police station
was situated.
4. Celia’s time in gaol
since being arrested
Evidence was led from a
psychologist on the welfare of Celia in gaol. She had
slashed her wrists, attempted to hang herself in the back
of a police van with a shoe string, and starved herself
in gaol. She had also been placed in a protection wing
which had her locked in a cell for 23 hours a day. The
evidence given questioned what this was achieving:
nothing was being achieved in terms of protection of the
general community other than assuring that a death threat
would not be carried out on a police officer. It was not
the answer to house Celia in gaol and, until her
treatment plan could commence, Celia was likely to
deteriorate even further.
5. Celia’s record and
antecedents
Celia had some fifteen previous
offences ranging from contravene AVO to assault police
and false representation causing police investigation
(phone offences). However, she had not started to offend
until she was 35 years of age. This posed the question of
what was happening to trigger the behaviour in question.
BIS looked into the matter, but only a few sessions of a
treatment plan had been carried out before she was
incarcerated.
BIS also discovered that Celia had
become obsessed with an ex-boyfriend and family in the
past. This explained the breaches of the AVO’s and
assaults. In those matters BIS prepared a contract with
Celia where she was only making one call per week. She
complied with this and her obsessive compulsive behaviour
has been managed to this day. This is an example of what
a previous treatment plan can achieve. A second contract
with Celia was entered into and prepared by BIS. This
contract was a plan to return her mobile phones to her on
condition that she not go inside the police station or
prank call the police station or 000. The police station
had allegedly received up to 1500 calls from Celia in one
day. There was a lapse of four calls after only two
sessions of a treatment plan, and it could only be proved
that one of the calls was made from Celia’s phone.
No other calls have been reported as made by Celia since
her s32 application in December 2004. (Note: while Celia
was in custody, a police officer made contact with
Corrective Services to determine if calls could be made
by Celia while incarcerated. This was done because the
police were still receiving prank calls. It was
discovered that Celia could not have made these calls, as
she was locked in a cell for 23 hours a day and had no
access to a phone in the one hour given for recreation.
There were clearly other prank callers in the area apart
from Celia.)
6. Previous record and any
failures to appear
Celia had never failed to appear in
the past. Many people with an intellectual disability
have trouble with forgetfulness. For example, they may
not be able to diarise or read letters including court
attendance letters. CJSN provides vital court support for
people with an intellectual disability who need
assistance in dealing with such problems.
If it is necessary to explain
failures to appear it is preferable to lead this evidence
from an expert, rather than making submissions from the
bar table. This evidence could be led from a range of
experts, including a BIS worker, member of a DADHC
Community Support Team, psychologist or
psychiatrist.
CJSN is a necessity for people like
Celia. CJSN reminded Celia to come to court, supported
her at court and in the police station and made enquiries
into her court travel.
This helped to reduce her anxiety
levels considerably.
7. Provision of a
surety
A surety is often difficult to find
for people with an intellectual disability. People with
an intellectual disability are more likely to breach bail
conditions either knowingly or unknowingly. In this
matter and most that I have come across, no one from the
client¡¯s family was prepared to be surety for
the client as the challenging behaviour of the client is
difficult for all involved.
8. Risk of
assault
A BIS psychologist gave evidence on
the issue of risk of assault.
In Celia's bail application
emphasis was placed on the fact that there were some
positive attributes to bail:
- she was in open employment and
a BIS worker had contacted her former employer who
agreed to hold her job open for her to return to, as
long as she was released in the immediate
future;
- a Risk of Assault Assessment
had been prepared by a BIS psychologist who gave
evidence for the bail application about the treatment
that could be commenced upon her release - removal
from the locality of the police station was
specifically recommended;
- a placement in supported
accommodation could be provided upon her
release;
- a Forensic Risk Assessment
identifying her risk of offending and providing
direction on the management of this risk had been
prepared;
- a consultation had taken place
with her treating psychiatrist who had considerable
experience in developmental disability
issues;
- fortnightly counselling had
been undertaken with a Mental Health Clinic and drop
in support for her accommodation placement was
available;
- BIS was willing to provide
ongoing clinical support;
- specific case management was
available;
- it would be open for her to
return to the recreational activities that she had
participated in prior to incarceration, namely indoor
soccer.
Celia’s case as a precedent
for s32 applications
Relying on Celia’s case as a
precedent for a s32 hearing, it can be seen that legal
practitioners should obtain from expert witnesses as much
information on the following as possible:
(1) History and background of the
client, including family and social history.
(2) Psychiatric disorder of the
client.
(3) Prognosis of the client, both
short and long term, and physical health of the client,
before and after incarceration.
(4) Developmental disability of the
client, including expert opinion on whether the client
has a developmental disability that is linked to the
offence.
(5) If there is a connection
between the disability and the offence, details of the
apparent circumstances if there is such a connection. In
Celia’s case this included the photo of her injured
arm, and the bruising which she said she received at the
police station by the officer she sent the death threat
to. Celia may have been venting her frustrations via the
letter veiled with a threat. Did she intend to carry out
the death threat? Or did she have no intention,
capability or strategy to follow it through?
(6) Detailed opinion as to whether
dealing with the client according to the law will achieve
anything. For example, the client may have an impaired
ability to participate in a trial process and be subject
to high risks and vulnerabilities in gaol. (Practitioners
are encouraged to highlight if the client has had major
problems in gaol. In Celia’s case there was evidence
which suggested that she had starved herself while in
gaol).
(7) Expert opinion on whether or
not the client is a threat to the victim and whether the
client has disclosed an intention of following the threat
through.
(8) Whether the client is minded to
or capable of carrying the threat through.
(9) The welfare of the client
before and after incarceration.
(10) Medication that that the
client may be on, and any condition or treatment that may
have an effect on the client’s behaviour.
(11) The abilities or inabilities
of the client for self care, and the abilities of the
client to learn not to engage in anti-social behavioural
acts.
(12) Evidence of how many sessions
of any existing treatment plan have been implemented
following any previous s32 matters. Did any factors
influence the implementation or lack of implementation of
the treatment plan? How likely is it that the client
might benefit from further treatment? If the client has
had an opportunity to engage in a treatment plan, how
likely is it that they will be able to learn the
boundaries of being a law abiding citizen?
(13) The client’s employment
situation and their ability to be able to go back into
their position of employment if released.
A summary and opinion of the client
should be obtained.
It is most important that a
treatment plan be included that the practitioner can
recommend to the Court. The practitioner should detail
how this can be implemented for behaviour modification.
This will ensure strategies are developed to reduce the
client’s challenging behaviour. The Court’s
attention should respectfully be drawn to any provisions
of s32 of the MHCPA that are applicable to the
case at hand. If there is any mental condition or
developmental disability that that the client has, such
as obsessive-compulsive disorders, impulse control
disorder, panic anxiety or acquired brain injury, this
should also be put to the Court. While treatment is
available for some these conditions in a hospital, it is
important to consider whether a hospital is a suitable
placement for the client.
Finally, the practitioner should
state whether or not the client is or is not a mentally
ill person within the meaning of Chapter 3 of the
Mental Health Act 1990 (NSW).
The chances of obtaining
non-custodial options for offenders will be substantially
increased if a representative from DADHC (either from
BIS, or from a community support team or from Disability
Services Australia) can attend court to give evidence on
the services and treatment plans suited to the particular
client. Such evidence will carry more weight than the
mere tender of a report from a treating doctor, support
worker, psychologist, psychiatrist, mental health worker
or the tender of hospital clinical notes.
Having a Forensic Clinical
Caseworker from BIS in court can have a positive effect
on the magistrate hearing the application. The Forensic
Caseworker is able to explain any recommendation made by
a psychologist and explain any treatment plan. BIS are
unable to provide services and treatment in gaol. Having
this said, not just from the bar table, but from the
witness box by a BIS worker makes a difference in a s32
application, and has a significant impact on where the
client will serve any penalty imposed.
The assistance that is available
from intensive specialist behaviour intervention units is
very important to s32 applications. If these services did
not exist, gaol would be the inevitable housing option
for many offenders with an intellectual
disability.
Keith’s Case
The following case summary
illustrates the steps involved in making an application
under s32 of the MHCPA, while using the services
of DADHC to achieve a non custodial sentence for a person
with an intellectual disability.
Facts
Keith has an intellectual
disability and an acquired brain injury. He is anxious
about lifts, insects, paper clips and loud noises. He
resides with his father and is heavily dependent on his
father. He has certain obsessive compulsive traits which
amongst other things, results in his repeatedly asking
his father to check his mouth to ensure that there is
nothing causing him to choke. His father also has to help
him in the bathroom.
Keith’s criminal history is
summarised as follows:
1997: Malicious damage,
false representation causing police investigation: s32
dismissal.
2001: Assault occasioning abh, common assault: s32
conditional discharge.
2001: Common assault: s32 conditional
discharge.
2002: Assault police officer in execution of duty:
3 months gaol.
2002: Aggravated indecent assault: suspended
sentence, 12 months bond.
In 2003 Keith spent 3 months
in gaol.
An incident occurred that triggered
off a series of challenging behavioural
problems.
Police charged Keith in December
2004 with an offence that he had allegedly carried
out in April 2003, prior to his incarceration. He was
alleged to have assaulted a fire brigade officer after
calling 000 in April 2003. At the time that this
occurred, Keith was interviewed and cooperated with the
police. He and his father were told the matter would be
dealt with by way of a caution only. Keith was
incarcerated for other charges after the interview, and
this charge should have been dealt with at the
time.
From Keith’s perspective, the
police were breaching their promise to deal with the
matter by way of a caution only. This caused him to
become angry and very upset with the police.
A week after he was charged, Keith
started demonstrating additional forms of challenging
behaviour. This included sitting in the middle of the
road and holding uptraffic. On one occasion when this
happened, the police arrived and Keith did not cooperate.
He was forcibly removed and sprayed. A struggle took
place, for which Keith was then also charged with assault
police (x 4).
Two weeks later Keith’s father
decided to take his entire family, excluding Keith,
overseas for a family wedding. The father foresaw that
there would be behaviour problems with Keith and was
reluctant to go, but a carer was arranged to supervise
Keith while the family was away.
The carer was an elderly gentleman
with a hearing aid. He used the family home phone and
left it unlocked. Keith played up. He phoned an airline
and made a bomb threat to ground the aeroplane that his
family was on. He did not want his family to go overseas.
He then called 000 and said that a person was trapped in
a car out the front of his house and that it was on fire.
A day that would otherwise have been uneventful for Keith
turned into a circus of fire brigades, police and bomb
squad cars. Keith was the centre of attention.
That afternoon, I attended the
police station, where Keith had already been
interviewed.
No CJSN support had been provided
at the police station and full admissions had been made
to the terrorist charges. I had discussions with the
police in charge and requested that he be brought before
a magistrate that day, as it was still before midday. The
next day was a public holiday and, as the police would be
opposing bail, a Registrar in the typical Saturday bail
court (Parramatta has sittings on some public holidays)
would have no power to grant bail.
By 3:00 pm the matter was listed
before a magistrate. I made a bail application for Keith
and the magistrate accepted that Keith did not have the
capacity to carry out the threat, although Keith had been
charged with a serious crime on the face of the matter.
Keith was granted bail.
Unfortunately, two days later,
Keith put a knife to his newly replaced carer. This
followed an incident that led Keith to become highly
stressed and anxious. No briefing had taken place to put
the new carer on notice of the need to avoid placing
Keith in situations with the potential to cause him high
levels of anxiety. Keith stabbed his carer in the arm. It
was later discovered that the carer only required three
stitches.
The police took several photos of
the crime scene and Keith was charged with malicious
wounding. No bail application was made, as until his
father returned from overseas, there were no suitable
accommodation services that could facilitate Keith, and
bail would not be granted unless there were exceptional
circumstances to justify the granting of bail.
After Keith’s father returned
to Australia, a bail application was made. Keith had been
in gaol for a week at this stage and part of the bail
application evidence was led from a Behaviour
Intervention Specialist from DADHC, who was able to
detail the support and treatment that could be provided
to Keith if he was to be released into his father’s
responsibility. It was put to the Court that support and
a treatment program could be provided to Keith while he
was in gaol.
Other submissions were made in
accordance with the seven points detailed below to
demonstrate exceptional circumstances. Keith was granted
conditional bail and released into the care of his
father. His Honour also made acceptance and compliance
with directions from DADHC a condition of
bail.
The steps taken for the s32
hearing
The steps that were taken in making
Keith’s s32 application are outlined
below.
1. Discussions with the
prosecutor
As the malicious wounding charge
was a Table 1 offence it could be dealt with summarily
unless someone made a positive election to take it to the
District Court. It was up to the prosecutor and his
superiors to elect if they were going to have the matter
dealt with in the District Court. This would have been
devastating for Keith. By holding discussions with the
prosecutor, I emphasised that Keith would be subjected to
ongoing stress and anxiety if the matter dragged on. The
matter was retained in the Local Court.
2. Tendering of reports and
clinical notes
Reports from Keith’s treating
psychiatrist and psychologist, along with clinical notes
and a report from a DADHC Community Support Team worker
on risk assessment and treatment were tendered. I had
served these previously.
3. Calling of evidence from
DADHC Community Support Team worker
The Community Support Team worker
from DADHC was called to give evidence.
Before I made any submissions to
the Court I asked the worker to explain some of the notes
he had made in his report concerning supervision and
asked him to explain what the psychologist’s report
meant when it recommended in its conclusion that the
matter be dealt with under s32. I then repeated the same
process with the psychiatrist, asking him what the
treatment plan involved and what role he played in its
supervision. This, in addition to the other submissions,
convinced the magistrate to dismiss the matters
conditionally under s32.
4. Addressing the circumstances
surrounding the seriousness of the offence
This involved detailing: the
history of the matter; what happened to lead Keith to
believe that there was a breach of promise by the police;
the call to the airlines in his attempt to stop his
father from leaving him behind; and the fact that the
carer had left the phone unlocked, which was against a
planned protocol to prevent prank calls.
The magistrate was reluctant to
deal with the matter of malicious wounding under s32 as
she was of the view that it was too serious a matter to
proceed under this section.
In response to the magistrate's
views, evidence was provided as to why it was appropriate
for the magistrate to exercise her discretion to deal
with the matter under s32. This included:
- the fact that the witness had
only received three stiches;
- the attitude of the victim;
and
- that in the event of her Honour
refusing to deal with the charge under s32, the matter
would most likely be dealt with by the making of
representations to the Police Commissioner, and that
by making these representations it would be requested
that the charge be reduced to assault occasioning
actual bodily harm, and that following this,
instructions would be sought regarding the entering of
a plea.
The magistrate suggested that the
matter be adjourned until representations were made on
the malicious wounding charge. But I indicated to her
Honour that because the matter would then be ongoing, the
stress and anxiety that Keith was experiencing would not
be able to settle while the case was pending. This would
be heightened by the fact that in Keith's eyes, the
police had breached their word regarding the initial
caution, which would cause his challenging behaviour to
escalate. Furthermore, it was likely that representations
would result in the Police Commissioner leaving it for a
magistrate to determine the matter in any
event.
5. Addressing the criminal
history of Keith
Evidence was given of the link
between previous offending and Keith's developmental
disability and condition, and of the fact that he has
learned boundaries since being involved in behavioural
modification programs.
6. Raising the time Keith spent
in gaol for the offence in question
Keith's time in gaol for this
offence (one week) was raised. Submissions were made on:
- his inability to cope in
gaol;
- the extent to which detention
in gaol could potentially have an adverse effect on
his progress with treatment;
- how ineffective gaol was likely
to be in Keith's punishment or rehabilitation, and
that the community was able to provide supports for
Keith to have treatment; and
- why it is preferable and more
responsible not to house people like Keith behind
bars, but offer them supports that allows them to deal
with their developmental disability and challenging
behaviours.
7. Demonstrating that the
treatment plan could not be implemented if Keith was in
gaol
It was demonstrated that none of
the recommendations suggested in the treatment plan could
be put in place while Keith was in gaol. Detail of the
treatment plan was provided which indicated that dealing
with Keith at law would be ineffective as he would have
no capacity to comply with a bond or perform community
services. It was submitted that he would be very
vulnerable in gaol as an easy target, and that his father
was an appropriate responsible person to discharge Keith
into the care of, together with the support of
DADHC.
Her Honour dealt with the
application and dismissed the matter under
s32.
CONCLUSION
People with an intellectual
disability, are often held in prison on remand or given a
gaol sentence because they are considered less able to
meet bail conditions. There is no accommodation available
for them, or the place in which they have been living
will no longer accept them.
Failure to arrange ongoing
assistance and support, and even supervision, will almost
inevitably result in the person’s reappearance in
the criminal justice system.
Whether your occupation involves
acting, case managing behaviour intervention, respite
care, or supported accommodation, for, or providing
assistance to, offenders with an intellectual disability,
I truly hope that the above case studies assist you by
giving some insight into a lawyer’s perspective of
acting for offenders with an intellectual
disability.
If you are a legal practitioner
acting for a client with an intellectual disability and
need to make contact with disability services, feel free
to contact IDRS. We can and will assist you by providing
a referral to the appropriate agencies.
The term “chiselling the
bars” is so descriptive of what offenders with
intellectual disabilities face when caught up in the
criminal justice system. A combined effort from all
involved in disability services will dramatically help to
avoid housing our client’s with special needs in a
gaol system that is so brutal to and unaccommodating of
their disability and specific needs.
Peter McGhee
Principal Solicitor
Intellectual Disability Rights Service
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