INTRODUCTION
11.1 Chapters 11-12 consider sentencing and release issues, including:
- the relevance of principles such as deterrence for people with an intellectual disability and the effect of a person’s intellectual disability on sentencing decisions;
- the decision to give a custodial sentence to a person with an intellectual disability;
- the role of Pre-sentence Reports (and whether they should be mandatory for the person with an intellectual disability);
- the over-representation and vulnerability of people with an intellectual disability in gaol;
- the advantages and disadvantages for prisoners with an intellectual disability of special custodial units, specialist programs within the mainstream prison environment, or detention in a secure institution outside the correctional system;
- the availability and appropriateness of existing non-custodial options for people with an intellectual disability, and whether additional options should be considered;
- the release from custody, including parole and post release services, and whether these options are less likely to be available for people with an intellectual disability;
- the release from custody of “dangerous” persons, including the use of the Habitual Criminals Act 1957 (NSW) or other preventive detention legislation, and the debate about the prediction of dangerousness; and
- minimising recidivism, which appears to be disproportionately high for people with an intellectual disability, through (appropriately resourced) specialist sentencing options and community corrections services.
11.2 This Chapter will consider sentencing options, including custodial and non-custodial options, while Chapter 12 will consider issues relating to release from custody, including “dangerousness”, parole and post release services. The final Report for this reference will take into account the results of the sentencing review currently being undertaken by the Attorney General’s Department. In June 1994 an Issues Paper1 was released as part of that review. That paper raises a number of sentencing issues for discussion but does not contain any final recommendations. It is therefore not clear at this stage whether that review will affect the issues discussed in this chapter.
SENTENCING
Intellectual disability as a sentencing factor
11.3 As stated in the Issues Paper, it is not within the scope of this reference to consider in detail the general principles and objectives of sentencing. Briefly, the (somewhat contradictory) justifications for sentencing include: punishment or retribution, rehabilitation of the offender, specific and general deterrence (that is, deterring both the particular offender and the general community from committing further offences), and protection of the community. Some of these justifications will have less relevance for the offender with an intellectual disability than for other offenders. For example, Hayes and Craddock have argued:
[r]etribution is morally doubtful when the offender may not fully comprehend the wrongness of their actions; and, further, it could be argued that society is acting very unfairly in exacting retribution from intellectually disabled offenders when it has already effectively pilloried that group through lack of provision of adequate services and resources.2
11.4 Similarly, another submission commented that, bearing in mind the person’s disability and its effect, if any, on the commission of the offence:
it may be valuable to think again of the purpose of a sentence. Is it retribution? Is it to discourage others? Or is it simply to satisfy the community? Is it to prevent a recurrence? Which of these is important, and if it is the last mentioned, how can the sentence ensure that guidance and treatment becomes the aim? Who has the knowledge, and who has the experience of intellectual disability to give this treatment?3
11.5 As with the sentencing of any offender, the court has to weigh up a number of competing factors, including features peculiar to the offence and the offender, to decide the length and type of punishment. Apart from considering the objective facts of the particular crime, the court also has to consider the matters which may reduce (mitigate) the sentence, including, in some cases, the offender’s low intelligence or intellectual disability and its impact on his or her criminal responsibility.4 The Judge is not bound, however to accept intellectual disability or low intelligence as a mitigating factor.5 If the accused’s mental condition is such that he or she would be a danger to the community, the Judge may choose not to mitigate the sentence, but the protection of the community cannot justify a sentence of preventive detention, due to the principle that sentences cannot be extended beyond that which is proportionate to the seriousness of the crime.6 In an extract from a recent speech entitled “Sentencing: The Law’s Communication Problem”, the Chief Justice of New South Wales made the following comments.
It is apparent that many members of the public are perplexed by the attention which the sentencing process pays to the subjective features of the offender. The law in this respect is clear. The object of sentencing is to impose a punishment which is appropriate to the particular offence committed by the particular offender. To take a simple and not uncommon example, some offenders suffer from mental infirmity, or psychological problems, which are capable of diminishing the culpability of their conduct. These cannot be ignored by a system which aims to make the punishment fit both the crime and the criminal.
... Very few people would seriously suggest that a first offender who commits a particular crime should be given the same treatment as a recidivist, or that intellectual disability is irrelevant. There is, however, a problem of communicating to the public the nature of the principles of sentencing that are applied by courts, and this is an area in which judges and lawyers need to make a conscious effort to explain themselves.7
The difficulties of determining an appropriate sentence when the offender has an intellectual disability have been commented upon.8 It is appropriate therefore for the Commission to consider the effect of intellectual disability on judicial sentencing decisions in New South Wales.
Deterrence
11.6 A recent New South Wales Court of Criminal Appeal decision has recognised that “whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap”.9 The Court, referring to a number of Victorian cases, stated that general deterrence should be given less weight in such cases “because such an offender is not an appropriate medium for making an example to others.”10 Similar comments were made in two recent New South Wales Court of Criminal Appeal cases, R v Champion11 and R v M.12 In R v Champion Kirby J referred to the comments quoted above and added:
Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates. ... It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given.13 [emphasis added]
The New South Wales cases did not require intellectual disability to be proved as a factor inducing the commission of the offence. According to Hayes and Craddock, the South Australian Court of Criminal Appeal’s approach to the same issue is “possibly more realistic” in recognising intellectual disability as a mitigating factor, but only if it reduced moral blameworthiness.14
11.7 In relation to specific deterrence, that is the deterrent effect on the particular offender, it has been argued:
Even if the moral culpability is significant, the point of a sentence which reflects specific deterrence will be lost if the offender does not equate the punishment with the offence. If the sentence is to deter similar behaviour, the offender must have a reasonable recollection of the events as well as some understanding of why the behaviour was objectionable. In New South Wales it may be many months, even years, after the offence before an offender is convicted and sentenced. By then, depending upon the particular intellectually disabled offender, he or she may have no useful recollection of the behaviour which caused him or her to be brought before the courts, so that any proper application of the principle of specific deterrence is impossible.15
Similar comments were made by the High Court in R v Porter:
it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds.16
The New South Wales Court of Criminal, however, has recently held that, though general deterrence was of little or no weight by reason of the offender’s intellectual disability, “individual deterrence and the question of outright punishment are both matters entitled to weight”.17
Rehabilitation
11.8 Though retribution and deterrence cannot be ignored, and will be more appropriate in some matters involving offenders with an intellectual disability than others, it is argued that they are generally less appropriate aims for sentencing such an offender. As most such offenders are not violent or dangerous, and therefore protection of the community is not the overwhelming concern, it can be argued that rehabilitation becomes the most important aim or philosophy of punishment for the offender with an intellectual disability.18 (Rehabilitation and the protection if the community cannot, however, be completely separated.) There does not appear to be any case authority in this regard.
Legislative recognition for intellectual disability as a sentencing factor
11.9 The above cases recognise that intellectual disability is a relevant sentencing factor. It has been suggested that this recognition should be given legislative force.19 This already occurs for federal offences under the Crimes Act 1914 (Cth), s 16A(2)(m). The relevant section states:
Matters to which court to have regard when passing sentence etc
16A. (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
...
(m) the character, antecedents, age, means and physical or mental condition of the person; [emphasis added]
Unlike the Commonwealth sentencing legislation, the New South Wales legislation does not contain a list of factors that Judges and Magistrates must have regard to when passing sentence. There are advantages and disadvantages of prescriptive provisions, and differing views about whether or not the whole area is best left to judicial discretion.20 A recommendation about whether or not New South Wales sentencing legislation should include such a provision is beyond the scope of this reference. If, however, a decision is taken to introduce a provision, it seems clear that intellectual disability should be included as a matter to which a court should have regard when passing sentence.
Intellectual disability as a “special circumstance”
11.10 As well as being a factor influencing the length of the sentence, a person’s intellectual disability can influence the way a sentence is structured, through the use of minimum and additional terms. Section 5 of the Sentencing Act 1989 (NSW) includes the following:
(1) When sentencing a person to imprisonment for an offence, a court is required:
(a) firstly, to set a minimum term of imprisonment that the person must serve for the offence; and
(b) secondly, to set an additional term during which the person may be released on parole.
(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances. ... [emphasis added]
Thus for sentences over six months, a court must generally set a minimum term for imprisonment together with an additional term,21 and unless “special circumstances” exist, the additional term must not exceed one-third of the minimum term (which operates like a non-parole period). It seems clear that a person’s intellectual disability can operate as a “special circumstance”,22 allowing the Judge to provide an appropriate sentence, for example, a longer than usual additional term and a shorter than usual minimum term.23
The decision to give a custodial sentence
11.11 It is argued that the offender’s intellectual disability should be considered not only in relation to the length and structure of the sentence, but for the appropriate sentencing type, whether custodial or non-custodial. There is little New South Wales legislative guidance about when to award a custodial sentence over a non-custodial sentence, where both are available for a particular offence. For sentences given by Magistrates, s 80AB of the Justices Act 1902 (NSW) provides that they “shall not sentence a person to full-time imprisonment unless satisfied, having considered all possible alternatives, that no other course is appropriate”. Similarly, for federal offences, s 17A of the Crimes Act 1914 (Cth) provides that a custodial sentence should be one of last resort. No such statutory guidance exists for adult offenders in the New South Wales higher courts,24 however the common law holds that imprisonment is only to be used when no other sentence is appropriate.25
Vulnerability in gaol
11.12 The Report of the Inter-Departmental Committee on Intellectually Handicapped Offenders in New South Wales (“The Missing Services Report”) commented that prisoners with an intellectual disability:
are subject to abuse and exploitation and are seen as being more susceptible to the negative influences of the prison environment, thus having any criminal behaviours reinforced rather than reduced by their period of incarceration.26
It has therefore been argued that gaol is even more inappropriate for the offender with an intellectual disability than for other prisoners. The Kingsford Legal Centre commented:
We believe that people with an intellectual disability are especially vulnerable when detained in custody, and that detention in custody imposes a greater hardship on such people than is usual. For many people with an intellectual disability, routine and patterns of life are essential to their wellbeing; they require familiarity and continuity. In addition, they often have little concept of the calculation of time or of the full extent of the criminal process. ... It is clear from our experience that the effect of custody threatens to diminish the living skills of a intellectually disabled person, and that the impact of custody will also be more severe than for an ordinary person.27
Other submissions have generally accepted that people with an intellectual disability are particularly vulnerable in gaol,28 for example to rape and other abuse. People with extensive experience in the correctional system have pointed to the impossibility, due to staffing levels and resources, of providing 24 hour protection for all prisoners with an intellectual disability.29 Gaol has also been seen as inappropriate because some of these offenders “tend to ‘copycat’ other deviants”.30
11.13 The court can consider the impact of imprisonment on the particular offender and the “circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol prisoner.” It has been stated that “[c]onsiderations of health are in this category.”31 Hayes and Craddock state that this decision makes it clear that the offender’s intellectual disability is relevant in sentencing, not as a “health” issue, “but because the experience of imprisonment for the intellectually disabled individual may be much worse than for other prisoners.”32 Recently, the New South Wales Court of Appeal recognised that:
in the case where a prisoner suffers from some illness or disability of such nature as to make more onerous the sentences which he must serve, that is a matter which can be taken into account in mitigation.33 [emphasis added]
11.14 A preference has also been expressed in submissions for non-custodial options for offenders with an intellectual disability, as long as the safety of the offender, his or her victim and the community are considered, and as long as there are adequate support services in the community.34 But often such services do not exist, as argued by The New South Wales Council for Intellectual Disability:
It is worth noting that increasing resources are being made available in the prison system to better address the needs of individuals with intellectual disability, (at a very high cost), while similar resources are so lacking in the community. It is becoming the case that even though a legal argument may succeed in defending a person from conviction or a custodial sentence, there is an inclination not to argue it as the person could obtain services in the prison system which he or she would otherwise not be able to gain in the community. While some may consider this an extreme circumstance, Council can assure the Commission that this is not uncommon. Council makes this comment not by way of criticising what is happening in prisons, ... but to show the current injustice, and how people with an intellectual disability may end up in the criminal justice system.35
11.15 Offenders with an intellectual disability are, however, sent to gaol and, it seems, in high numbers, as discussed at paras 11.45-11.47, partly because of the lack of a reasonable range of sentencing options and facilities.36 Judges and Magistrates are said to be frustrated by being forced to place people in detention because no alternative is available. There appears to be scope within the existing sentencing law to construct an appropriate non-custodial sentence for the offender with an intellectual disability, see paras 11.57-11.66. The difficulty is finding services and facilities so that a more appropriate sentence can be carried into effect.
PRE-SENTENCE REPORTS
11.16 Submissions have commented on the need for appropriate expert assistance for the Judge or Magistrate in deciding the most appropriate placement for the offender with an intellectual disability.37 Pre-sentence Reports, to assist the court, are prepared by the NSW Probation Service, following a conviction or a plea of guilty. Pre-sentence Reports are only prepared when requested by a Magistrate or Judge. They are not mandatory for any particular offence or class of offender. In 1992/1993 the Probation Service prepared 14,732 Pre-sentence Reports for the courts.38 A Pre-sentence Report may sometimes be prepared by an independent professional, particularly if Probation Service officers do not have the necessary expertise in the area.39 A limited survey of judicial officers found that the majority interviewed were satisfied with the quality of Pre-sentence Reports prepared,40 however, alternative views on this topic have also been expressed to the Commission. A matter can be adjourned for the purpose of preparing a Pre-sentence Report, and the court can ask for specific information, such as the availability or suitability of particular programs, to be included. A Pre-sentence Report usually contains background information about the offender, his or her education and employment, the officer’s assessment and recommendations. Information can be included about relevant mitigating factors, the appropriate length and place of detention, or the suitability of the offender for a non-custodial order.
11.17 Alternatively, a matter (usually Local Court) can be adjourned for a short period to allow a Probation Service “Court Duty Officer” to interview the offender. That officer can then give information verbally in court and be questioned by the Magistrate. According to the Probation Service, Court Duty Officers provide a court advice service to all metropolitan Local and District Courts and to major country centres: some courts have a full time service and the remainder receive a part time or on-call service.41 The Probation Service has estimated that court advice and Pre-sentence Reports occupy 40% of the Service’s resources.42
11.18 If it is suspected that the offender has an intellectual disability, it has been suggested that his or her lawyer alert the court that the following additional issues should be covered in a Pre-sentence Report:
The Australian Law Reform Commission, in its Report on Sentencing, added that Pre-sentence Reports “should be prepared by multi-disciplinary teams and should cover the offender’s physical and mental health, cognitive abilities and social and adaptive skills. The family and friends of the offender, and any psychiatrist, psychologist, social worker or welfare worker involved with the offender, should be consulted.”44
11.19 It has also been suggested that Pre-sentence Reports should be mandatory for a person with an intellectual disability, as is currently the case for children pursuant to s 25 of the Children (Criminal Proceedings) Act 1987 (NSW).45 Such a proposal has obvious resources implications, however, and will only be of assistance if the staff preparing the Pre-sentence Reports have access to training and expertise and there are sufficient numbers of them to meet the likely increased workload. Without appropriate knowledge and training of Probation personnel, the Pre-sentence Reports could disadvantage offenders with an intellectual disability, as their disability could be wrongly identified as indicating, for instance, a lack of cooperation, with resulting implications for their sentence. The Australian Law Reform Commission also stated that it:
has not recommended that pre-sentence reports be mandatory because of the delay and expense that would be involved. Where, however, there are reasonable grounds to expect that it would assist in sentencing, courts should avail themselves of pre-sentence reports. Reasonable grounds are particularly likely to exist where it appears that an offender may be suffering from an intellectual disability ...46
Due to the possibly enormous increase in workload caused by such a proposal and the need to avoid inappropriate adjournments or delays for minor offences, the Commission suggests that a mandatory Pre-sentence Report be limited to circumstances where a person is unrepresented and a custodial sentence is a reasonable possibility, to ensure that a Pre-sentence Report is prepared for the more serious offences in situations where the person may not have anyone to raise the need for such a Pre-sentence Report with the court. If a person with an intellectual disability is in fact sentenced to a custodial sentence and no Pre-sentence Report was prepared, this could be grounds for an appeal.
PROVISIONAL PROPOSALS FOR REFORM
38. Where an offender is unrepresented and has an intellectual disability, or one is suspected, and a custodial sentence is a reasonable possibility, a Pre-sentence Report is mandatory.
11.20 Proposal 38 does not overcome the difficulties faced by people whose intellectual disability has not been identified. In the Commission’s Research Report Appearances Before Local Courts47 Associate Professor Hayes referred to a variety of systems to increase identification of intellectual disability in the criminal justice system, which would also have implications for the sentencing process.48 One of these involved the presence in the court building of a “triage” (emergency admissions) nurse, with psychiatric and intellectual disability training, so that the judiciary or lawyers could ask for immediate assessment if mental abnormality is suspected. Under the proposal, the nurse would have telephone and computer access to mental health and intellectual disability services and would be able to obtain information about previous assessments, placements and management programs. A similar model has been used in Auckland, New Zealand, for persons with psychiatric illness.49 Such a service has obvious advantages, not only for people with an intellectual disability. Some comments to the Commission since the release of the Research Report have suggested that a triage nurse may not be best suited to such a role as intellectual disability is not a medical condition, and that perhaps a psychologist would be preferable. Either choice would have considerable cost implications, and would not overcome the difficulties caused by ignorance of the possible need for expert testing. Though assessments should preferably be done earlier than the actual court appearance, at least such a system would provide a useful safeguard for the court.
PROVISIONAL PROPOSALS FOR REFORM
39. A pilot study should be undertaken of a court liaison position, for example in the Downing Centre. The liaison officer(s) should provide immediate assessments or advice for the court, the police prosecutors, other prosecution lawyers, or defence counsel, and should have appropriate psychiatric and psychological expertise.
Pre-sentence Review Panel
11.21 In 1994 in the Illawarra region of New South Wales, a pilot Pre-sentence Review Panel was established for offenders with an intellectual disability, to meet concerns about the need for appropriate sentences for this group of people.50 The Panel, established under the auspices of the Probation Service, has input from the Department of Community Services (Disability Services), a psychologist from Wollongong University and an independent community representative (the parent of a person with a disability). After a person with an intellectual disability (generally defined as those having an IQ of less than 70) has been found guilty, an adjournment is sought to allow the Panel to meet the offender, assess his or her needs, and develop a realistic intervention proposal for the person. The Panel members’ contacts and knowledge about existing options enable an appropriate sentencing alternative to be devised. The Panel reports to the court within a period of approximately two months.
11.22 Guidelines have been established for the Panel, for example the offender must have been found guilty and must consent to the program. As well, the necessity of psychological and other assessments must be first considered and the offender is allowed to have a third person for support when interviewed by the Panel. Reparation to the victim can also be considered. The Panel proposes to meet twice a month and to consider a maximum of two cases at a time. Their report, as for standard Pre-sentence Reports, is prepared by the Probation Service and it is anticipated that the Panel’s proposal could, for instance, then become the special conditions of a supervised bond, administered by the Probation Service but implemented by the service or agency identified in the proposal. As with other bonds, a breach by the offender would bring the matter back before the court. An offender assessed in this way could still be eligible for other non-custodial sentences, such as Community Service Orders or other programs supervised by the Probation Service. In effect the Panel provides an extra pool of expertise for the Probation Service to draw upon when preparing a Pre-sentence Report as part of standard court procedures. No discretion is taken away from the court. No information is currently available about the Panel’s performance, but the Commission anticipates obtaining more information in time for its final report to the Attorney General. The Commission seeks comments about the appropriateness of such a program as an alternative for offenders with an intellectual disability.
CUSTODIAL OPTIONS
11.23 The overriding issue for prisoners with an intellectual disability is “the need for specialised programmes, services and protection, without overbalancing towards segregation, discrimination and overprotection.”51 There are three possible custodial options: detention in special units, which have specialist services and which exclude other prisoners; detention in the mainstream of the prison population, but with the availability of specialist services; or transferring the person out of prison into another secure institution in the community. The primary distinction between such an institution and a special unit within a prison would be the more rehabilitation-oriented ethos of the former. Segregation of prisoners with an intellectual disability may be detrimental, by emphasising the “difference” of the offender with an intellectual disability and perhaps reducing the availability of services available to the rest of the prison community. A Western Australian study, for example, recommended that, wherever possible, prisoners with an intellectual disability should be integrated into the mainstream prison population.52 However, as stated in the Issues Paper, integration is difficult to achieve in reality, particularly considering the vulnerability of people with an intellectual disability in gaol, discussed at para 11.12 above. Prisoners with an intellectual disability are likely to be isolated from, or victimised by, other prisoners and are unlikely to be integrated in most work environments. Prison officers and other criminal justice personnel have told the Commission of prisoners with an intellectual disability being “stood over” by other prisoners, for example, being bashed, raped or having their property taken. The protection of prisoners with an intellectual disability is therefore a relevant issue to consider.
New South Wales
11.24 The Department of Corrective Services, through the position of Project Officer for Disabled Prisoners, has set up, and oversees, special units for some prisoners with an intellectual disability and services for others within the mainstream prison system. Although the Department has special units, it is committed to the principle of integration where possible.53 There are no secure units outside the prison system, other than the locked wards of psychiatric hospitals which are clearly inappropriate for persons with an intellectual disability, unless they also have a psychiatric illness. Nor are there special services within the Parole Service, which is part of the Department of Corrective Services, for prisoners with an intellectual disability.54 Parole issues will be considered in Chapter 12.
Special units
11.25 History. Before the establishment of special units, the only options available for the accommodation of some prisoners with an intellectual disability were the protection units in maximum security institutions. The difficult life of a “protection” prisoner is well recognised.55 The first specialist unit was opened in July 1989 at Parklea Correctional Centre. This was replaced by the Goulburn Development Unit in October 1990, which caters for 12 prisoners with an intellectual disability in a maximum security environment. A medium security unit was opened in May 1992 at the John Moroney Correctional Centre at Windsor to house 10 remand and sentenced prisoners. A unit for 22 inmates (X Wing) was also opened in 1992 in the minimum security section of Goulburn Correctional Centre to provide work and living skills development programs.56 Approximately eight places in this new unit were reserved for prisoners who had completed programs in the Development Units at Goulburn and Windsor. The remainder of places were occupied by prisoners who wished to increase their educational skills and by two inmates who had offered to tutor other inmates. A special support program was established at Kirconnell, near Bathurst, in November 1993. This program was designed to provide work, education and counselling activities for nine prisoners with an intellectual disability who were capable of integrating with mainstream prisoners in a prison camp environment. The unit for six female prisoners in operation at Mulawa was closed in October 1991, after about 18 months of operation, because it was considered by the Department of Corrective Services that there was insufficient need to justify a separate unit.
11.26 Current situation. According to the Department of Corrective Services, these special units are currently undergoing significant changes, mainly because of changes in the security classification of areas containing the existing special units. Changes include:
Refurbishment of an area in the Reception/Industrial Centre at Long Bay is being undertaken to accommodate a special unit for inmates with intellectual disabilities. It is anticipated that the unit will be operational in approximately four months [October 1994]. The unit will cater for both sentenced and unsentenced inmates of all security classifications. It will house 18 inmates including up to 3 females.
A major function of the Long Bay Unit will be to provide a facility for the observation and assessment of newly received remand and sentenced inmates who have or are suspected of having an intellectual disability. The unit will also house inmates who cannot be placed in minimum security programs. A further important function of the unit will be to provide programs and accommodation for inmates with intellectual disabilities who have to remain in the metropolitan area for court or medical purposes.
Female inmates with intellectual disabilities who cannot be integrated in mainstream programs are currently placed in the Therapeutic Unit at Mulawa which provides inmates with enhanced levels of supervision and support.
The Development Unit at Windsor, which at present houses minimum security inmates, will close when the Long Bay Unit opens. The Development Unit at Goulburn will continue to function as a minimum security program and retain the same (high) staff/inmate ratio it held as a maximum security unit.
The two support programs - at [the Education Unit in] Goulburn and at Kirconnell will continue to operate.57
One possible disadvantage of these changes is that there will be no medium security unit, which may prevent prisoners from progressing through the classifications to release. The Department of Corrective Services believes that this will be overcome by moving prisoners more quickly to minimum security.
11.27 Admission to the Units. Admission to the New South Wales special units requires the prisoner to have either an IQ of less than 70, or an IQ between 70 and 80 together with severe adaptive deficits, to avoid the units becoming a “dumping ground” for “problem” prisoners. The Department’s Statement of Purpose and Objectives for the specialist Unit at Goulburn prison states that:
[i]ntellectually disabled prisoners who cope appropriately in the prison mainstream are NOT to be admitted to the Unit on the sole grounds of intellectual disability, as this would go against the principle of integration into the general gaol community for those who are capable of it.58
The courts may recommend that prisoners be placed in these special units, but the decision remains with Corrective Services. Prisoners may also be referred to be assessed for placement in the program by an interested person such as a family member, a legal representative or a member of the Department of Corrective Services staff.
11.28 Descriptions of the Units. The Commission visited the Goulburn Units in April 1992. The Development Unit has capacity for 12 prisoners in 11 cells (two prisoners in one cell). Each cell has a shower, cupboards and an enclosed concrete outdoor area. The prisoners are provided with a key so they can lock their cells, though prison officer keys override these keys. There is a common dining room, indoor work area and concreted outdoor area. There are two activity rooms, one containing three computers, in which development programs such as literacy and alcohol education are undertaken. The prisoners have a structured program with an emphasis on living skills, including development programs and paid prison work (assembling airline headsets). The Unit is supervised during the day by two prison officers and a Programs Nurse. According to the Department the prisoners currently are locked in their cells from 7.00pm until 6.45am. The inmates have access to the outdoors for sport, work and recreation purposes on most days, providing the weather permits.59
11.29 Inmates are transferred to the minimum security Education Unit (located in X wing) on a recommendation from the Education Officer. This wing is housed in a building which is older than the maximum security unit. The cells, all single bed cells, are open from 6.30am until 7.30pm. Each prisoner has an individual education program, which is reviewed every four weeks. The prisoners’ days are not as structured as in the Development Unit and there is more emphasis on literacy, rather than basic living skills. According to the Department of Corrective Services, the majority of the inmates in this Unit now work during the morning and early afternoon on the grounds maintenance gang, the demountables refurbishment gang or the spray shop and have education classes in the afternoon and evening.60
11.30 The Department of Corrective Service’s Annual Report 1990/91 commented that the purpose of these special units “is to provide appropriate services which will improve their ability to cope in gaol and to live in the general community as self-reliant, law abiding citizens”.61 In relation to these units, Hayes and Craddock have commented:
Individual programme plans are developed covering areas including literacy and numeracy; work preparation, and work skills for employment within the unit; personal care and hygiene; interpersonal skills including sexual relationships; relaxation training; sport and exercise; domestic skills such as cooking and laundry; budgeting and financial management; coping skills especially for managing frustration and violence; personal counselling; and group discussions about unit management and interpersonal interactions. Custodial officers volunteer to be transferred to the units, and as far as possible staffing is constant so that inexperienced officers who may not understand the inmates are not deployed. Motivation amongst officers is high, most reporting that their reason for requesting the transfer is the opportunity to have a meaningful interaction with inmates and to see the results of programmes. Officers undergo a training course followed up by in-service training, and many also undertake tertiary courses focused on intellectual disability. Each officer is appointed case manager for certain inmates, and is responsible for establishing goals, monitoring progress with programme plans, averting crises, and conveying relevant information to other members of the team.62
Hayes and Craddock also commented on the limitations of these Units, namely the small number of places available, and the fact that “[t]he degree of overcrowding in gaols places the existence of the units at risk, and they are also threatened with funding and staff cutbacks.” As well, “[t]he full range of therapeutic programmes is not available, with severe restrictions on resources such as speech pathology, sex offender programmes and physiotherapy, for example.”63
11.31 Submissions and people consulted have generally been impressed by these units. The Mental Health Review Tribunal made the following comments about three forensic patients with an intellectual disability under its supervision but detained at the John Moroney Correctional Centre at Windsor:
the environment, programmes, and rehabilitative, training and educational goals of the expert and dedicated staff working with these patients within the developmental unit of this prison, must be favourably remarked upon.64
The Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”), while generally preferring that people with an intellectual disability should not be segregated, have supported the units, primarily because of the vulnerability of people with an intellectual disability within the mainstream prison population.65 However, there are also criticisms of the units:
there is little or no access to speech or other therapists, and no contact visits, and where there is no “care” being exercised at all, only primitive conditioning at tremendous expense to the taxpayer ....66
Special services
11.32 Segregation will not be suitable or necessary for many prisoners with an intellectual disability. Some prisoners may prefer to be in the mainstream environment and may strongly resist the stigma attached to a special unit or being identified as having an intellectual disability. Some organisations argue that prisoners with an intellectual disability should be detained as far as possible in the mainstream prison population but with special services, such as increased supervision and a more structured program.67 The Law Society of New South Wales, for instance, supported, on balance, the integration of people with an intellectual disability into the mainstream prison population with the proviso that their special needs be recognised:
[i]f this means extra funding to provide special programmes and training for people with intellectual disabilities, then the Law Society believes this is a price that has to be paid.
Certain assessments have to be carried out before people can be integrated to just ascertain the level of their disability and in some circumstances, the Law Society sees good reasons why there should be segregation. However, the idea of integration for even these people should never be lost sight of.68
11.33 Special programs or services, such as drug and alcohol programs, are already provided in the mainstream prison population. Many such programs will be unsuitable for prisoners with an intellectual disability due to their low communication and interpersonal skills. Services will also not overcome concerns about the vulnerability of some prisoners in the mainstream prison environment. However, services appropriate for people with an intellectual disability should be developed. Areas of special need include: drug and alcohol counselling and sex offenders programs, together with programs which will provide them with work or practical living skills.69 It must also be recognised that as many offenders have also been victims, and this victimisation is likely to continue in the gaol system, appropriate counselling may be required.
PROVISIONAL PROPOSALS FOR REFORM
40. On the information obtained to date, the Commission supports the retention of special units in the prison system. The units, however, should be regularly reviewed.70 The Commission also supports the provision of funding for services for mainstream prisoners with an intellectual disability.
Custodial options in other States
11.34 In October 1993 the Commission wrote to each State’s Corrective Services (or equivalent) Department seeking information about, amongst other things, the availability of specialist custodial units. It appears that, apart from New South Wales, only Victoria has special units for offenders with an intellectual disability. Some States, for example Western Australia, have “protection” facilities for some prisoners with an intellectual disability. These facilities are designed to provide a safe environment for “vulnerable and disturbed” prisoners with some special education and other programs, but they do not have the full range of programs, services and accommodation options offered throughout the prison system.71 In South Australia offenders “who are considered unfit to plead or of having diminished responsibility, or being mentally ill,” are detained in at James Nash House, which is managed by the South Australian Health Commission.72
11.35 In 1990 a Corrections/Disability Services Taskforce was established in Victoria, which led to the development of a Policy and Procedures Manual for prisoners and offenders with an intellectual disability, a special unit for prisoners with an intellectual disability in the Metropolitan Reception Prison at Coburg and changes to the preparation of pre-sentence advice to the courts.73 The special unit (Unit 6, K Division) has places for 22 prisoners, both sentenced and remand. Two non-disabled prisoners live in the unit to provide support and act as role models for the disabled prisoners. The Victorian Department of Health and Community Services employs a full time worker in the Unit for assessment and referral and arranges programs and training for the prisoners. Where a prisoner was a client of the Department prior to incarceration, steps are taken to maintain this relationship; for example, the prison program manager contacts the community case worker regularly about the client’s progress. There is also a special unit within the minimum security section of the Loddon Prison, which consists of a four bedroom self-contained unit. A maximum of three prisoners with an intellectual disability can be accommodated, with provision for one or two non-disabled prisoners “to act as role models and support people”.74
11.36 The Victorian Department of Health and Community Services also established a “Secure Services Unit” outside the prison system in the grounds of the Kingsbury Training Centre, Melbourne, for approximately four to five prisoners with an intellectual disability. The unit is a five bedroom house which has at least two staff on duty, 24 hours a day, and is within a high fence. The inmates are primarily those who have been found unfit to plead and are being held at the Governor’s pleasure, but may also include sentenced prisoners believed to be particularly vulnerable within the prison system, even within the special units discussed above. The inmates are transferred out of the control of the Corrections Services by order of the Minister, pursuant to s 21 of the Intellectually Disabled Persons Services’ Act 1986 (Vic). The person becomes a “security resident” and receives a range of protections under that Act. A review of the Unit in 1991 identified the key problem area as lack of programs for clients.75
11.37 The Kingsbury Unit is now part of a system of supervised and supported accommodation run by the Statewide Forensic Program, which provides services for offenders with dangerous or anti-social behaviour. The Program has psychologists and case workers in both the prison system and the community and provides intervention programs to people with an intellectual disability in prison, after their release from prison and also, in certain cases, before an offence has been committed, on referral from the mainstream community services. The accommodation service is designed to enable clients to move to less restrictive levels of support and programs, with the ultimate aim of living successfully within the community. The Kingsbury Unit is designated as “Level One” security. There are also 24 hour supervised accommodation options with lower levels of security: “Level Two” in the grounds of an institution and “Level Three” in the community.76 As far as the Commission is aware, only Victoria provides supported accommodation to prisoners outside the prison system.
SECURE UNITS IN THE COMMUNITY
11.38 The establishment of the Kingsbury Unit outside the criminal justice system raises the issue of whether people with an intellectual disability should be removed entirely from gaol, owing to their vulnerability to abuse, their lack of understanding, or need for services. Some submissions, while accepting possible security concerns, have stated that they believe that prison is an inappropriate environment for a person with an intellectual disability, for example:
I submit that custodial care is almost mandatory for any act of violence committed by an intellectually disabled person. ...
“Custodial care” and “imprisonment” are two very different concepts, belonging, again, to two different systems.77
It is argued that offenders with an intellectual disability should either be sentenced to non-custodial options (see paras 11.57-11.66) or, if a non-custodial sentence is inappropriate in the circumstances, diverted to an institution other than a prison. It has been argued that people who have been found unfit to be tried or not guilty on the ground of mental illness (which can include intellectual disability), in particular, should not be sentenced to prison.78 It must, however, be recognised that another institution outside the criminal justice system will not necessarily provide better treatment or services for the offender with an intellectual disability.
11.39 The contrary argument is that diversion from the criminal justice system is inconsistent with the principle of normalisation and that, if found fit to be tried, the convicted person with an intellectual disability should be treated in as similar a way as possible to any other offender and all sentencing options should be available to the courts.79 The normalisation argument, however, in relation to prisons, has been rejected by other bodies, for example the Commonwealth Office of Legal Aid and Family Services stated, in supporting segregation of prisoners with an intellectual disability:
We do not agree that placing these people amongst the mainstream prison population is in accordance with the principle of normalisation. The prison environment is not a normal environment. ... While it may well be true that segregated specialist units are not as effective as they might be in providing appropriate care for people with intellectual disabilities, mainstream prison is hardly likely to be any more beneficial. Instead of returning the intellectually disabled to mainstream prison with all its disadvantages, efforts should be made either to improve the quality of support in segregated units or ideally to establish regional secure units ... In an ideal prison system, integration would be preferable. However, until such time as people with intellectual disabilities are not at risk of being victimised and exploited, and of being negatively influenced by “hardcore” criminals within the prison system, they should be held in segregated institutions which aim to educate and rehabilitate these people with specialist staff.80
11.40 It has therefore been suggested that a secure unit (or secure group home) be established in New South Wales outside the correctional system for people for whom gaol is considered inappropriate:
... a secure residence administered and operated by professional habilitation staff along the lines of the Victorian model provides the most favourable environment in which to meet the special management and habilitation needs of offenders with intellectual disabilities, in particular those whose needs cannot be met adequately in the prison system.81
Concerns have, however, been expressed about the provision of services in the Kingsbury unit, for example by the Victorian Intellectual Disability Review Panel.82
11.41 The New South Wales Department of Corrective Services stated that it:
supports the principle of diverting offenders from prison who have serious intellectual disabilities. The punitive function of imprisonment is meaningless and often counterproductive for those prisoners with an intellectual disability who have, at best, only vague memories of the offences they commit and little or no insight into what motivates their criminal behaviour.
Consideration should be given to establishing a small facility outside of Corrective Services control to meet the special habilitation requirements of offenders who have been found unfit to plead on account of their intellectual disability and who need to be housed in secure accommodation. Such a facility might also cater for offenders who have an intellectual disability who are at present held in remand gaols pending the resolution of their cases by the courts.
A special facility would promote the provision of appropriate living and social skills training to a higher degree than that possible in the restrictive environment of prison. It would also overcome the problem of exploitation of inmates with an intellectual disability by some of the more predatory types of inmates ubiquitous to typical prison populations.83
11.42 Associate Professor Susan Hayes, while supporting the establishment of a small facility outside Corrective Services control, has commented:
The principle of diverting from prison, offenders who have a serious intellectual disability is a vexed issue. The question arises as to who should run the facility or secure unit to which the intellectually disabled offenders are diverted. The issue also becomes one of which intellectually disabled offenders should be diverted, since not all have serious intellectual disabilities and some can understand the punitive function of imprisonment, as well as the other functions which include deterrence and rehabilitation. The State of Victoria has a diversionary procedure, and the fate of intellectually disabled offenders is often worse in the intellectual disability institutions to which they are diverted. There is also continual tension between the two departments, Corrective Services and Community Services, owing to the fact that in most instances such offenders have been sentenced. When they are diverted, the question arises as to how they can be restrained in a secure unit, and what happens to them at the end of the sentence.
... In other jurisdictions, such as Britain, there has been a reluctance on the part of secure regional units to accept certain categories of offenders, including those who have sentences. It has also been discovered that the secure units rapidly fill up and there is no flow through, particularly if there is a preponderance of severe offenders who do not move through the system. The secure units may well cater for offenders who are on remand, but the difficulty is that very often they are not identified as having an intellectual disability until very close to their trial date, and so in the intervening time they receive no habilitative services in the corrective services facilities.
There is no particular reason why a special secure unit would promote social and adaptive skills training in a way that would be impossible in the restrictive environment of a prison. Indeed, the experience in other jurisdictions is that there are fewer educational, vocational and habilitative programmes in the secure units than there are in the prison environments. The suggestion needs to be treated with a great deal of caution because it is not always the case that prison is the most restrictive alternative. The issue of intellectually disabled offenders being victimised in prison is, of course, an accepted fact, but it reflects more on overcrowding and lack of supervision than it does upon the actual intellectual disability. There are many vulnerable offenders, and it cannot be argued that they should all be moved out of the corrective services system simply because they are going to be victimised by other non-disabled prisoners.84
11.43 IDRS has argued that any new facilities should be the joint responsibility of the Departments of Corrective and Community Services, to ensure that the prisoners receive appropriate support and services.85 For people found unfit to plead or not guilty on the ground of mental illness, they added that though a secure environment may be appropriate:
Hayes and Craddock also argue that:
Intellectually disabled prisoners should not be transferred to mental health or intellectual disability facilities other than through a formal commitment procedure in which the defendant is represented by legal counsel and reviewed regularly.87
11.44 There is a difference of opinion about the most appropriate department to administer such a unit. The Queensland Department of Family Services and Aboriginal and Islander Affairs, for example, stated:
The New South Wales Department of Community Services is likely to see running such a Unit as inconsistent with the provision of (voluntary) community services (see also paras 13.33-13.36). Though the Commission provisionally supports the idea of a secure unit outside the prison system, such a unit must be able to offer conditions and programs which are better than those available in the prison system. The Commission is concerned that such a unit should not be a prison by another name and should address the concerns outlined by Associate Professor Hayes and IDRS above.
PROVISIONAL PROPOSALS FOR REFORM
41. The Victorian model of a secure unit (not within the grounds of a prison) for people with an intellectual disability who are either unfit to be tried or not guilty on the grounds of mental illness, or other offenders with an intellectual disability for whom prison is considered inappropriate, should be adapted for use in New South Wales. Appropriate safeguards and services should be provided and the conditions for the transfer of such people from prison set out in legislation. The appropriate government department to run the unit should be a matter for further discussion. The unit should be able to have more flexible leave and rehabilitation programs than are available in prison, and there should be provision for decreasing levels of security to enable re-integration into the community, as currently exists in the prison system.
OTHER CUSTODIAL ISSUES
Over-representation in prisons
11.45 Many research studies in Australia and other Western nations have reported that people with an intellectual disability are over-represented in prison populations. There has been, however, considerable variation in the prevalence found, ranging from less than 1% of the prison population to nearly 40%.89 Some of these studies are summarised in the Commission’s Research Report - Appearances Before Local Courts.90 The variation has been attributed to:
- differences in prosecutorial and sentencing practices; or
- the availability (or lack) of alternatives to gaol for people with an intellectual disability; or
- differences in the way the research was undertaken, including the definition of intellectual disability used.91
11.46 The most recent New South Wales study, conducted by Hayes and McIlwain in 1988, estimated that 12-13% of the New South Wales prison population had an intellectual disability, using a definition of intellectual disability which included both the results of intelligence tests and social and adaptive skills:
Using accepted definitions of intellectual disability which include both IQ and social/adaptive skills deficits, it is clear that in this study the majority of this sample who fall into the borderline or low average categories on IQ measures alone, would actually be classified as intellectually disabled on the basis of severe deficits in social/adaptive skills. Using data from a number of sources, it is apparent that the baseline figure for the prevalence of intellectual disability is 12-13 percent, that is approximately four times that of the general population.92
With approximately 6,500 prisoners in the New South Wales prison system,93 these figures mean that there could be in the order of 800 inmates with at least a borderline level of intellectual disability. There is some debate whether the numbers are as high as suggested by the Hayes and McIlwain study,94 but there are no other recent New South Wales prison statistics against which to compare this figures. Other States95 have lower figures, though, as suggested above, some variation can be explained by, for example, the definition of intellectual disability used. Some anecdotal reports, however, suggest an even higher figure, for example Dr Jenny Thompson, a psychiatrist who has worked for both the Mental Health Review Tribunal and the Prison Medical Service, stated that in her experience about 20% of prisoners had an intellectual disability, the majority being in the mild or borderline ranges:
they fall into ‘revolving door’ patterns of imprisonment, freedom, sometimes hospitalisation, with escalating degrees of offences. Many have dual diagnoses of intellectual disability and mental illness; brain damage and mental illness.96
Why does this over-representation of people with an intellectual disability occur?
11.47 A number of possible explanations for this over-representation have been suggested:97
- The “Susceptibility Hypothesis”.98 People with an intellectual disability commit more crime, because their impaired mental abilities have ramifications for their impulse control or frustration tolerance level.
- The “Different Treatment Hypothesis”.99 People with an intellectual disability are treated differently in the criminal justice system because of their disability and their poorly developed understanding of the criminal justice system, for example, they are more likely to receive a custodial sentence.
- People with an intellectual disability are often poor, unemployed and reliant on social services, or are employed in low-paying occupations. This socio-economic group is generally over-represented in the prison population. Social factors apart from income are also likely to be relevant.100 They may lack family support and a stable place of residence, and therefore may not be released on bail.
- People with an intellectual disability are caught more often, because their crimes are easier to detect and/or less successfully concealed. Considering the possibility of unreliable confessions or the chance of the person being used as the “fall guy” in a group offence, there is also the possibility that people with an intellectual disability are sometimes gaoled for crimes they did not commit.
- It has also been suggested that some people with an intellectual disability are gaoled because there is nowhere else for them to go. Other non custodial options such as community service orders or specialist programs have not worked or simply do not exist.
It is generally considered that there is no single satisfactory explanation as to why so many people with an intellectual disability are in prison.
Implications for prisoner management
11.48 The Hayes and McIlwain study discussed above also considered the implications for prisoner management of this high prevalence:
American literature has also pointed to the difficulties faced by people with an intellectual disability in adjusting to the prison environment, for example in complying with prison rules.102
11.49 The study also recommended a number of other measures within the prison system, for example, in relation to the difficulty of comprehension of prison rules, the preparation of an appropriate video explaining prison rules and requirements was suggested.103 The study’s major recommendations, apart from special units which have already been discussed, are set out below, together with the Department of Corrective Services’ implementation to date.104 Assessment and training are discussed further at paras 11.50 and 11.54-11.56 respectively below.
Hayes and McIlwain recommendation
- A screening test on reception to prison for all prisoners, followed by, for those below a designated cut-off point, a full psychological and/or medical (including psychiatric) assessment, including consideration of the services required by the prisoner.
- Appoint a case coordinator for each prisoner with an intellectual disability to ensure reception of appropriate services.
- Train all correctional staff, including health professionals, in identification and management of prisoners with an intellectual disability.
- Ensure continuity of habilitative services when the prisoner is transferred or released.
- Appropriate programs, resources and units to be made available across the spectrum of security classifications.
Corrective Services response
- This will be undertaken with the establishment of a case management system, which is being progressively introduced into all correctional institutions.
- Some training is currently supplied to Governors, new recruits and to the staff of the special units.
- This is currently limited to inmates released from special units.
- No further special programs (apart from those discussed at paras 11.25-11.26 and 11.33 above) are planned at present.
Screening and assessment
11.50 As discussed above, screening and assessment for intellectual disability is a crucial issue at the sentencing stage. It is also relevant on the entry into the prison system, whether the person is on remand or is sentenced. Unfortunately it is often assumed that intellectual disability will be identified at the court stage, but this is not necessarily the case, particularly if the person pleads guilty. This also does not help remand prisoners. The Department of Corrective Services is currently in the process of introducing new assessment procedures.105 Identification is made more difficult by the inadequate number of psychologists in the gaol system. Goulburn Gaol, for example, had only two psychologists for approximately 700 prisoners in 1992.106 Psychiatrists attended on occasion from Long Bay Prison hospital, on a session-based system. This lack of staff means that adequate screening and treatment programs may be impossible (see also the discussion about the lack of services in Chapter 13). There also needs to be adequate facilities for non-Corrective Services professionals to undertake assessments, particularly for remand prisoners.
PROVISIONAL PROPOSALS FOR REFORM
42. That the assessment and screening procedures in prisons be appropriately resourced and reviewed on a regular basis.
Transfer of information from the courts
11.51 Information provided to the court, primarily for the purposes of sentencing, is likely to be relevant for the appropriate (and expeditious) placement and treatment of the person for both custodial or non-custodial options. It is important that relevant information which may affect the decisions of the Department of Corrective Services or the NSW Probation Service is passed on from the courts. The person’s intellectual disability, where relevant, could be noted on the remand or commitment warrant by the court. The court can also make a recommendation that the person be held in protective custody, pending classification.107 The Department of Corrective Services has commented:
In addition to Corrective Services improving its own procedures, there also appears to be a need to upgrade screening and assessment processes for persons coming before the courts who are suspected of having an intellectual disability. Efficient lines of communication should be established between those providing the assessments and Corrective Services so that the Department is alerted to the presence of intellectual disability as soon as they enter the prison system. This will facilitate the early placement of inmates in programmes which will most adequately meet their needs.108
11.52 It may be necessary to institute a reporting system which encourages the courts or the person’s lawyer to notify the Department of Corrective Services, after sentencing, of the person’s disability. Though a proposal about the transfer of relevant information from the courts to Corrective Services and from the prison to the Parole Service and then onto the Probation Service does not overcome the possibility of inaccurate information about the person being used in decisions about his or her future, it may assist in the identification and appropriate treatment of prisoners with an intellectual disability. Confidentiality issues must also be considered.
PROVISIONAL PROPOSALS FOR REFORM
43. That procedures be instituted to ensure that relevant information about an offender’s intellectual disability is transferred from the courts to the New South Wales Department of Corrective Services and the NSW Probation Service.
Short term prisoners
11.53 Many of the services currently available in the gaol system are of little assistance for the short term prisoner. It has been suggested that there may be many people with an intellectual disability who have committed frequent minor offences and for whom a non-custodial sentence is inappropriate. Such people are less likely to be placed in a special unit, to receive a psychological assessment or to benefit from any programs and assistance available in gaols. Many are therefore unlikely even to have their disability identified. The short term of their sentence does not, however, mean that such people are not vulnerable in gaol. For these prisoners notification by the court may be crucial.
Training for correctional officers
11.54 A number of prison officers interviewed in Western Australia recognised the special needs and particular problems of prisoners with an intellectual disability. One officer stated:
They are charged more often for prison violations as they don’t understand what is expected of them. Officers have to spend a lot more time with this group, we have to reiterate daily tasks, check them constantly, protect them from exploitation.109
Significantly only three of the 20 officers felt they were adequately supported in the prisons for dealing with offenders with an intellectual disability and some referred to the lack of specialised training.
11.55 As for all criminal justice personnel, there is clearly a need for training about intellectual disability for prison officers as “[t]he perception, attitudes, training and skill of prison officers can have an important effect upon the prison experience of an intellectually disabled prisoner”.110 One submission commented that “the ignorance of the penal system employees, with few exceptions remains appalling,”111 and the need for training for prison officers has been commented upon in a number of submissions.112 The Hayes and McIlwain study referred to above commented:
All correctional staff require basic training in the identification and management of [prisoners with an intellectual disability] because these issues pertain to the overall management and security of the prison. It should be recognised that even those professionals who could be assumed to have expertise in the field (nursing staff, doctors, psychiatrists, psychologists) may in fact not have received any relevant training since their undergraduate course many years previously. Therefore, expertise must be demonstrated rather than assumed. Some correctional staff who may be deployed to special wings or units ... will naturally develop greater expertise than those who deal with [prisoners with an intellectual disability] in the prison mainstream. In-service training courses must be available to all staff at all levels.113
11.56 The need for training has been referred to in relation to the police;114 lawyers, including judicial officers;115 and other criminal justice personnel and need not be repeated in great detail here, but again it is important that such training not be limited to the staff of the special units. Similar issues arise for the staff of the NSW Probation Service.116 The Commission believes that the detail of training programs is primarily an internal matter, based upon an organisation’s particular systems and procedures and therefore repeats (with appropriate adaptations) its proposal for the police:
PROVISIONAL PROPOSALS FOR REFORM
44. An audit of current New South Wales Department of Corrective Services and NSW Probation Service training in relation to intellectual disability should be undertaken. Training about the special needs and vulnerability of people with an intellectual disability should not be directed merely to the level of the new recruit, but should be included on a continuing basis for all staff who are likely to come into contact with people with an intellectual disability.
NON-CUSTODIAL (OR SEMI-CUSTODIAL) OPTIONS
11.57 Non-custodial sentences are given to the majority of offenders for a variety of reasons. Some reasons include: the inappropriateness of custodial sentences for relatively minor offences, the disadvantage of exposing young offenders to the gaol environment and the likelihood of rehabilitation being more effective in the community than in gaol. Non-custodial options are also less expensive than imprisonment: according to the NSW Probation Service, the cost of managing an offender in the community in 1992-93 was $3.23 per day in comparison to the daily custodial cost of $120.47 per inmate in maximum security and $95.90 per inmate in minimum security.117 Even where specialist units are available, it has been stated that prison may be inappropriate for many people with an intellectual disability, as discussed above. Therefore, it is suggested, appropriate non-custodial options should be considered. Particular advantages of each of the available options in New South Wales for offenders with an intellectual disability are considered below. Supervision of offenders with non-custodial sentences is undertaken by the NSW Probation Service.
Options available in New South Wales
11.58 In New South Wales, apart from fines, there are a number of alternatives to imprisonment, which may be completely non-custodial, as in the case of community service orders or bonds, or which may be semi-custodial, such as periodic detention or home detention.
Community Service Orders and Attendance Centres
11.59 A Community Service Order (“CSO”) requires the offender to perform a number of hours (not exceeding 500 hours) of unpaid community work, such as gardening and maintenance. As part of a CSO the court may require the offender to attend for a nominated number of hours (with a minimum of 20 hours) at an Attendance Centre.118 At an Attendance Centre the offender is required to participate in development, educational or other programs under the supervision of the Probation Service. In introducing the Attendance Centre provisions, it was anticipated that, where a person was unsuited to work in the community, development programs at such a Centre may provide an alternative to gaol.119 CSOs are only to be ordered “instead of imposing a penalty of imprisonment”,120 and the offender must consent to a CSO.121 A Pre-sentence Report is required stating that the offender is a suitable candidate for a CSO and that the relevant programs are available.122 CSOs have been available in New South Wales for about 14 years, and as at 30 June 1993, the 4,760 offenders were on CSOs.123 Most orders are for 50 to 200 hours work in the community, and all CSOs are supervised by the Probation Service. Breach of CSOs means the offender is brought back before the court and may lead to imprisonment.124 In a limited survey of judicial officers, the majority interviewed considered that CSOs made a positive contribution to the offender’s rehabilitation or education.125 Hayes and Craddock have pointed to the particular advantages of CSOs for offenders with an intellectual disability, namely:
- the opportunity for maintenance or boosting of self esteem through the work undertaken;
- the preservation of normal social skills rather than institutional skills and values;
- the opportunity for “modelling upon typical members of the community rather than exposure to the anti-social, violent and criminal behaviour occurring in gaols”;
- a CSO is likely to be a more meaningful punishment to the offender with an intellectual disability than, for example, a fine paid out of a bank account or trust fund: “[t]he work may take the form of restitution, if not to a specific individual or property, then at least along similar lines - a basic form of ‘making the punishment fit the crime’, which in this situation means also that the offender understands that the punishment is related to the crime.”126
The survey of judicial officers referred to above, however, suggested that some Magistrates believe that physical or mental disabilities make some offenders unsuitable for CSOs.127
Bonds
11.60 A “Griffiths remand” (or “common law bond”) involves the court adjourning the sentencing of an offender, for instance to allow him or her to demonstrate rehabilitation. Other bonds (or “recognizances”) may be ordered by the court in a variety of circumstances, requiring the offender to be of “good behaviour” for a period of time and, usually, fixing an amount the offender will be liable to pay if the bond is breached.128 Such bonds may impose other conditions, such as reporting to the Probation Service. Other alternatives include a bond known as a “deferred sentence” where breach of the conditions of the bond also results in imprisonment.129 A fine can be imposed in addition to a bond.130 Many submissions have commented on the difficulties some people with an intellectual disability have in understanding and complying with the conditions of bonds (see para 11.67 below).
Dismissal without conviction
11.61 Under s 556A of the Crimes Act, any court may consider a charge proven but be of the opinion that:
having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than a nominal punishment ...131 [emphasis added]
In such circumstances the court dismisses the charge or discharge the person on a good behaviour bond without recording a conviction.
Periodic detention
11.62 Periodic detention, as its name suggests, requires the offender to spend time in prison, but that time is broken up, usually as weekend detention, to allow the offender to continue living and working within the community.132 Hayes and Craddock have pointed to the advantages of periodic detention for offenders with an intellectual disability as:
allowing them to maintain their place in residential facilities and sheltered workshops rather than go back to the bottom of a waiting list after a term of imprisonment. The maintenance of family and other community support services is likewise even more crucial for such offenders. Periodic detention gives the intellectually disabled offender a “taste” of imprisonment which maybe more salutary than all the lectures from lawyers and caregivers. It avoids to some extent the perils of institutionalisation and possible modelling on deviant prisoner behaviour, and reduces the risk to the vulnerable prisoner. The supervised work can be tailored to fit the crime, again providing a concrete object lesson for these offenders. The major disadvantage is that the system appears to be faltering in New South Wales, and over-worked staff may not have the time or expertise to supervise “difficult” cases, nor find appropriate work projects for them.133
11.63 A different view of periodic detention, however, was offered by the Law Society of New South Wales:
It would seem that for people with an intellectual disability and, in fact, offenders generally, there needs to be some sort of half-way house between a non-custodial and a custodial sentence. The present system of periodic detention being spent in gaol is not appropriate in many cases. Consequently, some thought should be given to the institution of periodic detention sentences being served in the community so that the professed goal of rehabilitation can be seen to be something more than just words. The basic idea of locking people up for weekends does not achieve anything at all and does not enhance the rehabilitative process.
In the Law Society’s view, there is an argument that people sentenced to periodic detention could be required to spend time at a community based centre where they would be required to go one evening per week and weekends as under the existing periodic detention arrangements. Alternatively, a combination of periodic detention and attendance at a community based centre should be available.134
Home detention
11.64 As discussed in the Issues Paper, one alternative suggested by the West Australian Authority for Intellectually Handicapped Persons is “home based detention”, as it “does not expose the person with intellectual disability to the abuses that frequently occur in prison and it ensures that any effort at habilitation occurs in the place where the person lives and works.”135 In New South Wales, a pilot program of home-based detention, known as Intensive Community Supervision (“ICS”), was launched in June 1992 and is continuing in 1994.136 The program is designed to save money (costing approximately $8,000 per offender per year rather than $27,000 for a year in gaol) and reduce recidivism. It is administered by four Magistrates sitting in Parramatta, Liverpool, Fairfield and Burwood Local Courts and is available, if the offender and his or her spouse agrees, for such offences as minor fraud, drink driving, drug charges and break, enter and steal. ICS is ordered as a condition of a deferred sentence under s 558 of the Crimes Act 1900 (NSW). A non-removable wrist or ankle bracelet is attached to the person, which must be placed into a special device of the offender’s home on receipt of a computer-generated home call made randomly to the offender’s home. The offender also has to acknowledge the call verbally. If the person does not answer the phone his or her supervisor is contacted. Serious breaches of the program will result in the person being brought back before the court with the possibility of spending the remainder of the sentence in gaol. Offenders will also be visited and submitted to drug and alcohol testing.137 The Attorney General’s Sentencing Review Issues Paper suggested that the program will be put on a legislative basis.138
11.65 The general advantages and disadvantages of home detention have been discussed in detail elsewhere.139 The procedures involved in such an option, however, for instance answering a telephone check call and the use of monitoring devices, may be beyond the abilities of some people with an intellectual disability, who would therefore require constant support. This alternative may thus impose an unfair burden on the offender’s family and may present problems of supervision. Similarly many residential services may not accept such people, which would make it difficult to find them placements in the community. There is also the concern that such procedures can be used to pass the cost of detention onto families and disability services.140 The New South Wales Sexual Assault Committee stated that home based detention may not be appropriate for a person living in a residential facility with others, and that it was possible that such an option would not be seen as “punishment” by a person with an intellectual disability.141
Program probation orders
11.66 For federal offences, “program probation orders”142 are available, which have some similarities to Attendance Centre orders. If a person with an intellectual disability is convicted of an offence and the court is satisfied that the disability contributed to the commission of the offence and an appropriate education program or treatment is available, the court may, without passing sentence on the person, order that the person be released on condition that he or she undertake the specified program. This presupposes the availability of appropriate programs. The Australian Law Reform Commission, in recommending the availability of these orders for such offenders, noted that all submissions received by that Commission had supported their introduction.143 It stated that consultations and submissions:
indicate that many crimes committed by intellectually disabled offenders, even if done repeatedly, are of a minor nature and that habilitation programs for such offenders have a real likelihood of success. The example often given is of intellectually disabled offenders who shoplift because they do not know how to handle or understand money. The most appropriate and beneficial sanction in these cases is something akin to a psychiatric probation order, requiring that the offender attend a program to be taught to handle money. Program orders of this type will only be successful, however, if sufficient resources are devoted to creating and running the programs required.144 [emphasis added]
Disadvantages of non-custodial options for people with an intellectual disability
11.67 Many non-custodial alternatives, however, are of limited assistance for people with an intellectual disability “who may not understand them and lack the resources and capacity to comply with them.”145 For example, people with an intellectual disability may have difficulty telling the time to keep appointments or they may need assistance (such as travel training) to reach the police station or Probation office. The factors which may lessen their chances for bail and parole, such as poverty, lack of employment options or family and community support, and unstable living conditions, will also decrease the likelihood of receiving such sentences, with a corresponding increase in custodial sentences. There is also a lack of guidelines or policy about what conditions or, in the case of CSOs, what work may be suitable. IDRS commented that many non-custodial alternatives relied upon a person’s ability to comply with the conditions imposed on them and “[i]f appropriate services are not available the effect can be to simply set people up to fail.”146 The danger exists that, if an inappropriate non custodial option is chosen or if it is not explained effectively to the person, the person may soon find themselves breaching the order and returned to the court and perhaps to gaol.
11.68 Fines may also disadvantage the offender with an intellectual disability. For instance, although the means of the offender are taken into account by a court in setting a fine, difficulties remain for the offender with an intellectual disability who is dependent on some sort of benefit or pension, particularly if assistance is required in managing his or her financial affairs. The New South Wales Sexual Assault Committee commented that “[f]ines are generally not appropriate, not only as most people with an intellectual disability could not afford them, but because they are often not educated as to the value of money.”147
11.69 There are no specialised options within the NSW Probation Service for people with an intellectual disability, therefore general community services are relied upon. The Service believes that people with an intellectual disability form only a small number of their clients as a 1987 survey by Probation officers only identified 1.38% of the Service’s caseload as having an intellectual disability,148 though in the absence of psychological testing, this number is likely to be an underestimate. Examples have been provided to the Commission of Probation officers not identifying a person’s intellectual disability. Consultations with Probation officers have referred to the difficulties faced in dealing with these clients, including: the failure to recognise a person’s disability, particularly if the person’s disability is masked by other factors such as alcoholism; the expense and difficulty of obtaining assessments; problems with transfer of information from the courts and the gaols; and the lack of services (especially accommodation), policy and training in this area. Similar concerns were expressed for people with brain damage.149
11.70 There are a large number of offenders being supervised in the community by the Probation Service, for example, at 30 June 1993, 9,159 people were on supervised probation; 4,760 were on CSOs; 1,679 were on post-release orders and 2,615 were on fine substitution orders.150 The Probation Service stated that the average ratio of active supervision cases to field staff was 45 offenders per officer.151 Therefore, identification and supervision of the offender with an intellectual disability may be difficult, as it is generally recognised that supervision of a person with an intellectual disability is time consuming:
The extraordinary burdens on the [Probation] Service in NSW mean that supervision will often amount to no more than a weekly or even monthly request to attend at the Service’s office for an interview. Many officers have little or no training in intellectual disability and the additional time demands of dealing with such offenders sometimes leads to frustration on the part of both offender and supervisor. Involvement of another specialist service which is willing to provide oversight of the offender whilst on a bond might be a better way of meeting the needs of the intellectually disabled offender.152
The need for training of all Probation staff was discussed at paras 11.54-11.56 above. The lack of existing programs and special supervision may mean that a Probation Service officer who is preparing a Pre-sentence Report informs the court that the offender is unsuitable for a non-custodial sentence. Thus the offender with an intellectual disability may be gaoled by default.
Justice Plans
11.71 In Victoria, if a court finds a person with an intellectual disability guilty of an offence and is considering ordering either a suspended sentence, a “community-based order” (similar to the New South Wales CSO), or release on adjournment (with or without recording a conviction), the court may request the preparation of a “Justice Plan”, in addition to a Pre-sentence Report.153 A Justice Plan is prepared by the Department of Health and Community Services and does not recommend sentencing options but rather specifies appropriate available services for the offender “which are designed to reduce the likelihood of the person committing further offences.”154 If the court orders either a suspended sentence, a community-based order, or release on adjournment, it may also order that the offender participate in the services specified in the Justice Plan for a period of up to 24 months or for the length of the sentence, whichever is the shorter.155 Review provisions for the special conditions are provided.156 Such special conditions involve cooperation between the community services and corrections services personnel.157
11.72 The effectiveness of Justice Plans is limited by the programs and services available, as the court does not have the power to order a special condition if no appropriate option exists.158 Hayes and Craddock have commented:
The various reported judgments in relation to Community Based Orders suggest a growing confidence in this form of disposition, notwithstanding teething problems in the funding and execution of programmes. The legislation in other jurisdictions may permit the making of orders which mirror the terms of the Victorian orders. The lack of explicit recognition of such orders in these jurisdictions, however, militates against their use. The value seen in such dispositions by the Victorian judges should encourage the enactment of similar provisions in other jurisdictions.159
As Hayes and Craddock recognise, there appears to be scope for the court to seek information (usually through a Pre-sentence Report) about the options available for the offender in the community, and to make attendance at various programs a condition of, for instance, a bond. However the Commission seeks submissions about whether such a power to seek information and order special conditions for an offender with an intellectual disability sentenced to a non-custodial option may need to be made more specific. The major difficulty remains the lack of services. The Commission seeks submissions about whether there should be a provision that a court can order that such a service be provided.
11.73 The Commission suggests that the advantages of a Justice Plan could be incorporated into the existing system of Pre-sentence Reports so long as appropriate assistance is provided to the Probation Service. There needs to be development by the Probation Service (with the assistance of the Department of Community Services and other agencies) of appropriate programs (for example at Attendance Centres) which can be ordered as part of existing sentencing options, such as CSOs.160
PROVISIONAL PROPOSALS FOR REFORM
45. With the assistance of the New South Wales Department of Community Services, the NSW Probation Service should develop appropriate non-custodial programs for the offender with an intellectual disability, within the existing non-custodial (or semi-custodial) options, such as Community Service Orders. The court should also have the power, as in Victoria, to request information from both agencies about appropriate available programs and order that the person attend such a program as a condition of the sentence.
FOOTNOTES
1. R Brown Sentencing Review 1994 (Issues Paper, Attorney General’s Department, New South Wales, June 1994).
2. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 191.
3. Mr P Hutten Submission (6 January 1992) at 18-19.
4. For example, R v Vangelder (unreported) Supreme Court, NSW, Court of Criminal Appeal, 28 February 1994, CCA 60107/93; and R v Bassett (unreported) Supreme Court, NSW, 20 May 1994, Hunt CJ at CL, 70082/93, at 16ff.
5. See, for example R v Ryan (unreported) Supreme Court, NSW, Court of Criminal Appeal, 18 July 1990, CCA 60071/89 at 6; R v Tucker (unreported) Supreme Court, NSW, Court of Criminal Appeal, 13 April 1992, CCA 60245/90; and R v Trotter (unreported) Supreme Court, NSW, 10 August 1993, CCA 70032/93, Hunt J.
6. Veen v R (No 1) (1979) 143 CLR 458; Veen v R (No 2) (1988) 164 CLR 465. See also R G Fox “The killings of Bobby Veen: The High Court on proportion in sentencing” (1988) 12 Criminal Law Journal 339, especially at 347ff.
7. Justice M Gleeson “Justice when everyone’s a hanging judge” The Sydney Morning Herald (2 December 1993) at 12.
8. See, for example the comments of a South Australian judge in R v Zubrinich and West (unreported) Supreme Court, South Australia, 26 May 1994, 475/1993, Mohr J, at 2.
9. R v Letteri (unreported) Supreme Court, NSW, Court of Criminal Appeal, 18 March 1992, CCA 60407/91, per Badgery-Parker J (with the concurrence of Gleeson CJ and Sheller JA) at 14.
10. R v Letteri (unreported) Supreme Court, NSW, Court of Criminal Appeal, 18 March 1992, CCA 60407/91, per Badgery-Parker J (with the concurrence of Gleeson CJ and Sheller JA), at 12.
11. R v Champion (1992) 64 A Crim R 244.
12. R v M (unreported) Supreme Court, NSW, Court of Criminal Appeal, 26 October 1993, CCA 60398/93.
13. R v Champion (1992) 64 A Crim R 244 at 254-5.
14. Hayes and Craddock at 198-199, referring to the comments of Bray CJ (dissenting) in R v Kiltie (1974) 9 SASR 452.
15. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 158.
16. R v Porter (1936) 55 CLR 182 at 186, per Dixon J, cited in Hayes and Craddock at 192.
17. R v Shinfield (unreported) Supreme Court, NSW, Court of Criminal Appeal, 13 May 1993, CCA 60090/93. See also the comments of the South Australian Court of Criminal Appeal in R v Mason-Stuart (1993) 68 A Crim R 163, where King CJ, at 164 commented: “whilst elements of proportionality and general deterrence may not be important in this matter, the need to deter the appellant, personally, is important.” Compare the Victorian Court of Criminal Appeal in R v Kilmartin (1989) 41 A Crim R 22 at 25-26.
18. Hayes and Craddock at 192.
19. Legal Aid Commission of NSW Submission (24 July 1992) at 6.
20. Arguments for and against listing sentencing factors in legislation were set out in the Australian Law Reform Commission’s Report Sentencing (Report 44, 1988) at paras 167-171.
21. Under the Sentencing Act 1989 (NSW) fixed terms must be given for sentences less than 6 months (s 7) and where the court so decides (s 6).
22. For example R v Shinfield (unreported) Supreme Court, NSW, Court of Criminal Appeal, 13 May 1993, CCA 60090/93; R v Sanders (unreported) Supreme Court, NSW, Court of Criminal Appeal, 18 February 1992, CCA 60480/90; and for brain damage in R v Powell (unreported) Supreme Court, NSW, Court of Criminal Appeal, 23 March 1993, CCA 60647/91 and 60002/92.
23. R v Bassett (unreported) Supreme Court, NSW, 20 May 1994, Hunt J, 70082/93, at 23. See also Hayes and Craddock at 242.
24. Compare the Children (Criminal Proceedings) Act 1987 (NSW) s 33.
25. See R v James (1985) 14 A Crim R 364.
26. Report of the Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales The Missing Services (Departments of Corrective Services and Youth and Community Services, Sydney, 1985) at 3.
27. Kingsford Legal Centre Submission (29 October 1992) at 5. See also The Law Society of New South Wales Submission (24 August 1992) at 4.
28 See, for example: New South Wales Department of Family and Community Services [now Department of Community Services], Office on Disability Submission (26 November 1991) at 2; Legal Aid Commission of NSW Submission (24 July 1992) at 6; New South Wales Sexual Assault Committee Submission (August 1992) at 5; Queensland Corrective Services Commission Submission (23 September 1992) at 1; Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 4; Mr W Challis, Administrative Officer, Prisoner Classification & Placement, Department of Corrective Services, New South Wales Submission (25 June 1992) at 1; and Mr F de Silva, NSW Probation Service Submission (17 March 1994) at 2-3.
29. Mr F de Silva, NSW Probation Service Submission (17 March 1994) at 2-3.
30. New South Wales. Department of Family and Community Services [now Department of Community Services], Office on Disability Submission (26 November 1991) at 2.
31. R v Bailey (1988) 35 A Crim R 458.
32. Hayes and Craddock at 242.
33. R v Peuna (unreported) Supreme Court, NSW, Court of Criminal Appeal, 15 July 1993, CCA 60593/91 per Badgery Parker J at 9.
34. For example, New South Wales Sexual Assault Committee Submission (August 1992) at 5.
35. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 5.
36. This was raised, for example, at the consultation with representatives of the DPP, Police Prosecutors, Legal Aid Commission of NSW, Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994.
37. For example, Mr P Hutten Submission (6 January 1992) at 10.
38. New South Wales. Department of Courts Administration Annual Report 1992/1993 at 36.
39. Hayes and Craddock at 201.
40. R Bray and J Chan Community Service Orders and Periodic Detention as Sentencing Options: A Survey of Judicial Officers in NSW (Judicial Commission of New South Wales, Monograph Series 3, 1991) at 2.
41. Ms B Smith, Director, NSW Probation Service Letter (24 March 1994)
42. Ms B Smith, Director, NSW Probation Service Letter (24 March 1994)
43. Ierace at 168.
44. ALRC Report 44 at para 203.
45. Hayes and Craddock at 203.
46. ALRC Report 44 at para 203 [footnote references omitted]. See also the general recommendations about Pre-sentence Reports at paras 189-190.
47. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993).
48. See NSWLRC RR 4 at para 4.19.
49. See J Wade “Psychiatric nursing in the courts” (March 1992) New Zealand Nursing Journal 20.
50. See Illawarra Disabled Persons’ Trust Letter (7 December 1993), attaching Report of Pre-Sentence Review Panel Preliminary Meeting and a Discussion Paper on intervention strategies for people with an intellectual disability who are convicted of a criminal offence.
51. Hayes and Craddock at 282.
52. G P Jones and K Coombes The Prevalence of Intellectual Deficit Among the Western Australian Prisoner Population (Department of Corrective Services, Western Australia, 1990), Recommendation 7.
53. New South Wales. Department of Corrective Services Submission (14 November 1991) at 1.
54. Mr R G Woodham, Assistant Commissioner, Operations, Department of Corrective Services Letter (23 November 1993).
55. For a description of life for prisoners with an intellectual disability before special units see: J Simpson “A visit to four gaols” (1989) 3 (3) National Council on Intellectual Disability: Interaction 10.
56. The Commission visited the Development and Education units at Goulburn Correctional Centre on 28 April 1992.
57. Mr C Rannard, New South Wales Department of Corrective Services Letter (20 June 1994).
58. New South Wales. Department of Corrective Services Statement of Purpose and Objectives: Goulburn Development Unit at 2.
59. Mr C Rannard, New South Wales Department of Corrective Services Letter (20 June 1994).
60. At the time of the Commission’s visit some inmates also worked on the prison farm.
61. New South Wales. Department of Corrective Services Annual Report 1990/1991 at 76.
62. Hayes and Craddock at 278-279.
63. Hayes and Craddock at 280.
64. Mental Health Review Tribunal Annual Report 1992 at para 11.2. See also consultation with the Illawarra Criminal Justice Sub-committee on 2 March 1992; Dr J A Thompson, Consultant Psychiatrist, Community Health Services, Central Sydney Health Service Submission (26 January 1994) at 1.
65. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 10.
66. Mrs V Breheny Submission (14 July 1992) at 5.
67. For example, Queensland Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 4-5.
68. The Law Society of New South Wales Submission (24 August 1992) at 4.
69. See also ALRC Report 44 at para 217.
70. The Commission understands that a review of services provided to prisoners with an intellectual disability is currently being undertaken for the Attorney General by Mr Chris Puplick. This review is likely to be of assistance in assessing the existing special units.
71. Jones and Coombes at 38.
72. South Australia. Department of Correctional Services Submission (27 August 1992) at 3.
73. Ms L Goss, Coordinator, Program Development and Implementation, Correctional Services Division, Prisons Branch, Department of Justice, Victoria Letter (11 November 1993).
74. Department of Health and Community Services, Victoria Statewide Forensic Program: IDS Policy, Procedures and Guidelines (May 1993) at 25.
75. Community Services Victoria Review of the Kingsbury Secure Services Unit (Management Review Unit, June 1991, PMR RS 003).
76. Ms T Brown, Manager, Client Services Section, Department of Health and Community Services, Victoria Letter (11 March 1994). See also Department of Health and Community Services, Victoria Statewide Forensic Program: IDS Policy, Procedures and Guidelines (May 1993).
77. Mrs V Breheny Submission (14 July 1992) at 4-5.
78. For example, Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 11.
79. Western Australia. Department of Corrective Services Submission (19 November 1991) at 2.
80. Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 4-5.
81. Western Australia. Department of Corrective Services Submission (19 November 1991) at 3.
82. Intellectual Disability Review Panel (Victoria) Submission (17 December 1992) at 9-10.
83. New South Wales. Department of Corrective Services Submission (20 July 1992) at 1.
84. Associate Professor S C Hayes Submission (31 August 1992) at 1-2. See also S C Hayes “Services for offenders: Mentally disabled prisoners - planning resources” (1991) 5 (2) National Council on Intellectual Disability: Interaction 32.
85. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 10.
86. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 11.
87. Hayes and Craddock at 291.
88. Queensland. Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 5.
89. In national surveys in the United States of America, Georgia, for example, reported a rate of 39.6%: see Hayes and Craddock at 31. In the United States, it has been commented that despite this variation “the best estimate of most experts is that adult mentally retarded offenders nationally comprise about 9-10 percent of the total number of inmates”: E F Reed “Legal rights of mentally retarded offenders: Hospice and habilitation” (1989) 25 Criminal Law Bulletin 411 at 411-412.
90. NSWLRC RR 4 at paras 1.12-1.24.
91. See Hayes and Craddock at 32-40 for more detail.
92. S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (November 1988) at 47. This study assessed the prevalence of intellectual disability in five NSW 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 population of 1,318 prisoners of which 675 were screened.
93. According to the Department of Corrective Services Annual Report 1992/1993, at 2, as at 4 July 1993 there were 6401 inmates at correctional centres and 1265 offenders sentenced to periodic detention. According to that Report however, at 2-3, “a conservative projection is for an incremental progression [of the prison population] of some 200 inmates per annum until at least 1995.”
94. For example New South Wales Department of Corrective Services Submission (20 July 1992) at 2.
95. For example, a study in Western Australia reported that 1.17% of the prison population had an intellectual disability: see Jones and Coombes at 27.
96. Dr J A Thompson, Consultant Psychiatrist, Community Health Services, Central Sydney Health Service Submission (26 January 1994) at 1. Also in New South Wales, R Hudd and J Timmers in Borderline and Mild Intellectually Disabled People: The Neglected Group for Services (Discussion Paper, Sydney City Mission, 1992) at 26, stated that 45-55% of prisoners were estimated (based on unofficial figures) to have a borderline or mild intellectual disability.
97. See also R Jackson, J Cockram and R Underwood “Views from behind prison walls: Prison officers and intellectual disability”, paper presented at the 1993 National ASSID Conference (Newcastle University, New South Wales, 30 November - 5 December 1993) at 2-3, for a description of the various explanations for over-representation.
98. See C A Buser, P A Leone and M E Bannon “Segregation: Does educating the handicapped stop here?” (June 1987) Corrections Today 17-18, cited in Hayes and McIlwain at 10.
99. 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 1-17, cited in Hayes and McIlwain at 10.
100. Associate Professor S C Hayes has also suggested, from a study of 134 defendants with an intellectual disability referred for assessment, that: “[t]he results presented in this study describe an alienated and deprived subgroup of society where unemployment, isolation, drug and alcohol abuse, sexual victimisation, and dysfunctional childhood experiences are endemic. Their communication and social skills deficits are both a cause and an outcome of their isolation, which in turn leads to boredom, frustration and a lack of appropriate social role models. It could be argued that it is not the presence of intellectual disability which leads to criminal behaviour, but rather in a scenario similar to other afflicted groups (such as epileptics, drug and alcohol abusers, and brain damaged youths) it is the constellation of negative social circumstances which results in over-representation in the criminal justice system.” See S C Hayes “Intellectually disabled defendants - characteristics and psychological assessment”, paper presented at the First International Congress of the European Medical Association The Mentally Retarded in the 2000’s Society (23-26 March 1994, Rome) at 17.
101. Hayes and McIlwain at 47.
102. C Smith, B Algozzine, R Schmid and T Hennly “Prison adjustment of youthful inmates with mental retardation” (1990) 28 Mental Retardation 177.
103. Hayes and McIlwain at 49-52.
104. From information supplied by Mr C Rannard, Department of Corrective Services Letter (20 June 1994).
105. For an example of screening for intellectual disability in the prison systems of some American States (Georgia and Texas) see Reed at 430-436.
106. Visit by the Commission to the Goulburn Correctional Centre on 28 April 1992.
107. Ierace at 167.
108. New South Wales. Department of Corrective Services Submission (20 July 1992) at 2.
109. Jackson, Cockram and Underwood at 5. Note that the sample interviewed was very small (only 20 officers) and these were nominated by the Western Australian Department of Corrective Services on the basis that they had recently worked with offenders with an intellectual disability. Their understanding is therefore likely to be greater than that of the general prison officer population and is not necessarily reflective of the New South Wales situation.
110. Hayes and Craddock at 268-271.
111. Mrs V Breheny Submission (14 July 1992) at 9-10.
112. For example: Western Australia. Department of Corrective Services Submission (19 November 1991) at 6; New South Wales. Department of Family and Community Services, [now Department of Community Services] Office on Disability Submission (26 November 1991) at 2; and Kingsford Legal Centre Submission (29 October 1992) at 6.
113. Hayes and McIlwain at 50.
114. New South Wales.Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Policing Issues (Discussion Paper 29, 1993) ch 4.
115. See Chapter 3 of this Paper.
116. Hayes and Craddock at 233. See also Kingsford Legal Centre Submission (29 October 1992) at 5.
117. Ms B Smith, Director, NSW Probation Service Letter (24 March 1994)
118. For provisions relating to Attendance Centres see the Community Service Orders Act 1979 (NSW) s 3-3A, 7(3). The NSW Probation Service operates Attendance Centres at Pendle Hill, Emu Plains, Chatswood, Annandale, Liverpool, Wollongong, Tuggerah Lakes and Newcastle. Part time Centres are found at Albury, Wagga Wagga, Goulburn, Orange, Dubbo and Tamworth: Ms B Smith, Director, NSW Probation Service Letter (24 March 1994).
119. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 22 October 1986, at 5199, per the Hon J Akister MP, Minister for Corrective Services, introducing the Community Service Orders (Amendment) Bill 1986 (NSW) which introduced the Attendance Centre provisions.
120. Community Service Orders Act 1979 (NSW) s 4(1).
121. Community Service Orders Act 1979 (NSW) s 6(1).
122. Community Service Orders Act 1979 (NSW) s 6(2)-(3).
123. New South Wales. Department of Courts Administration Annual Report 1992/1993 at 36. See also C Allison “Sweat but no tears in the working alternative to jail” The Sydney Morning Herald (4 March 1994) at 3.
124. Community Service Orders Act 1979 (NSW) s 23-25.
125. Bray and Chan at 1.
126. Hayes and Craddock at 208-209. See also G M Crombie Residential and Community Based Options for the Remand and Sentencing of Intellectually Disabled Offenders in Victoria: A Proposal from Harrison Youth Services (Harrison Youth Services, Uniting Church in Australia, Victoria, 1988) at 19.
127. Bray and Chan at 19.
128. See the Crimes Act 1900 (NSW) s 432(2) (only available for misdemeanours following a sentence of imprisonment); and s 554(2) (only available for summary proceedings). See also Justices Act 1902 (NSW), s 96 for the powers of Magistrates.
129. Crimes Act 1900 (NSW) s 558.
130 Crimes Act 1900 (NSW) s 440B.
131. Crimes Act 1900 (NSW) s 556A(1).
132. Periodic Detention of Prisoners Act 1981 (NSW).
133. Hayes and Craddock at 214-215.
134. The Law Society of New South Wales Submission (24 August 1992) at 4.
135. M McCoy and H Lowe “Criminal law and people with intellectual disabilities: Alternative options to custody”, paper presented at the conference Questions of Balance: Criminal Law and People with Intellectual Disabilities (Perth, Western Australia, July 1990) 41 at 42.
136. New South Wales. Department of Courts Administration Annual Report 1992/1993 at 36.
137. M Coultan “Take-away jail sentences just a phone call away” The Sydney Morning Herald (2 June 1992).
138. Brown at 52-53.
139. ALRC Report 44 at paras 130-131; R Lay “Home detention: A community programme” and T Dorey “Home detention and supervision schemes” in D Biles (ed) Current Australian Trends in Corrections (Federation Press, Sydney, 1988).
140. Associate Professor S C Hayes Letter (7 May 1992) at 2.
141. New South Wales Sexual Assault Committee Submission (August 1992) at 6.
142. Crimes Act 1914 (Cth) s 20BY.
143. ALRC Report 44 at para 215.
144. ALRC Report 44 at para 214.
145. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 3.
146. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 11.
147. New South Wales Sexual Assault Committee Submission (August 1992) at 6. See also Hayes and Craddock at 210.
148. Ms B Smith, Director, NSW Probation Service Letter (26 November 1993).
149. Consultation with representatives of the NSW Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994.
150. New South Wales. epartment of Courts Administration Annual Report 1992/1993 at 36-37.
151. Ms B Smith, Director, NSW Probation Service Letter (24 March 1994).
152. Hayes and Craddock at 205.
153. Sentencing Act 1991 (Vic) s 80.
154. Sentencing Act 1991 (Vic) s 3.
155. Sentencing Act 1991 (Vic) s 80(2).
156. Sentencing Act 1991 (Vic) s 81-83.
157. Ms L Goss, Coordinator, Program Development and Implementation, Correctional Services Division, Prisons Branch, Department of Justice, Victoria Letter (11 November 1993).
158. See, for example R v Roadley (1990) 51 A Crim R 336, at 347-349.
159. Hayes and Craddock at 213.
160. See also Recommendation 6 of the Report of the Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales The Missing Services (Departments of Corrective Services and Youth and Community Services, Sydney, 1985).
