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S32 Step By Step Guide

Submissions on links to disability

One Possible Consideration in the Exercise of Judicial Discretion

… what weight is given to various factors that touch upon that judgment will be very much a matter for the particular magistrate

Confos v DPP [2004] NSWSC 1159 [18]

MHFPAMental Health (Forensic Provisions) Act 1990 NSW does not specifically require that there be a causal link between the offending conduct and the defendant's disability. The case law does not offer clear guidance. (See, for example, the cases of DPP v El Mawas [2006] NSWCA 154 and, on the other hand, the case of Police v Deng [2008] NSWLC 2.)

IDRS suggests that submissions about links are generally helpful. We have prepared a table outlining some common difficulties arising from intellectual disability to assist practitioners. We stress that not all difficulties will be faced by every person with an intellectual disability but present it as an overview of the types of difficulties that may be faced by your client. It may be useful to ask any disability professional providing evidence about a client's disability to comment on possible links between their disability and the charges incurred.

Every adult or child with intellectual disability is unique. The following effects of intellectual disability are generalisations but are provided to give an understanding of the difficulties that many people with intellectual disability will be struggling with to a greater or lesser degree.

Your client's needs and difficulties will be as much affected by their personality, family circumstances, the support (or lack of support) they receive in their daily lives and the opportunities they have had to learn, as they will be by their disability. Many people with intellectual disability who come into contact with the criminal justice system are disadvantaged by a history of lack of support and poor opportunities to learn.

Case study: multiple s32s and increasing servicesPossible Links between disability and charges

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