OVERVIEW
12.1 By its terms of reference the Commission was asked to consider the issue of “the release from custody into the community of intellectually disabled persons considered dangerous”. “Dangerousness” is a complex issue, and debate about it often involves inaccurate assumptions about behaviour and its prediction, and about mental disorder. This chapter briefly raises dangerousness as a general concept, and its applicability to people with an intellectual disability. Additionally, this chapter deals with issues relevant to the release of all prisoners with an intellectual disability, such as preventive detention, parole and the availability of, and responsibility for, post release training and re-integration schemes.
"DANGEROUSNESS"
12.2 There is a wide body of literature about “dangerousness”.1 It is not appropriate for the Commission to consider this material in detail in this chapter. What makes an individual “dangerous” is not defined by statute, nor is there a generally accepted definition. It has been argued that “dangerousness” can become a circular concept - a person is dangerous when some form of containment is considered desirable.2 The term is often used to refer to a tendency to engage in serious criminal behaviour, usually of a violent or sexual nature.
Predicting “dangerousness”
12.3 To describe a person as “dangerous” implies that his or her behaviour is predictable. However, it has been stated:
In recent years, there has been a vast outpouring of material on the assessment of risk and the prediction of dangerous behaviour. ... [Prins then refers to 24 studies.] Despite a vast literature ... one has to conclude that there are no reliable actuarial and statistical devices as yet that can predict with any degree of certainty the likelihood of dangerous behaviour. Moreover, many of the published studies suffer from serious methodological weakness (for example, inadequate sampling and follow-up).3
Similarly:
[p]sychiatric opinion on serious offenders who have been long in custody is frequently inconclusive with regard to crucial issues such as individual dangerousness.4
A contrary view is expressed by the Victorian psychiatrist, Dr William Glaser, in relation to sex offenders: “[a]lthough the science of sex offenders is still very crude, there is an increasing body of knowledge available which will help us to predict dangerousness.”5
12.4 The lack of certainty in predicting dangerousness means that the detention of people on the basis of such predictions amounts to an exercise of weighing the social and individual costs. The predominant issue thus becomes: what degree of accuracy is morally and politically acceptable? A common argument of those supporting comprehensive preventive detention legislation is that accuracy lies as a secondary consideration to risk-aversion. According to one commentator:
... the mistakes involved in deciding to release are quite different than those made in respect of those it is decided to retain. One involves releasing a number of offenders who will again inflict serious harm on society. The other involves retaining (not releasing) a number of offenders who, if released, would not do so, but who cannot be distinguished at the time of the decision from those who would. Most people would consider the first kind of mistake to be far more serious than the second type of mistake. Classifying the two types of mistakes as simply mistakes and glossing over the differences in the impact that would result from each type of mistake is, in my opinion, dishonest.6
Compounding the issues as to unreliability of predictions are ethical and professional concerns over the possible misuse of individual psychiatric assessments in making such decisions.7 It has been suggested that the potentially serious outcome of releasing a dangerous person, causes psychiatrists to err on the side of caution in making predictions about dangerousness.8
“Dangerousness” and intellectual disability
12.5 Intellectual disability is not a condition which causes criminal behaviour,9 and a person with an intellectual disability is not inherently dangerous. It has been stated:
Numerous studies have disclosed highly varied offence rates (according to the type of offence) within, and between, groups of offenders with and without an intellectual disability. The studies fail to disclose any generally accepted correlation between intellectual disability and a propensity either to commit given offences or to offend generally. Studies conducted in Australia have disclosed a variety of (sometimes contradictory) results.12
“Dangerousness” and preventive detention
12.6 “Dangerousness” finds its way into various detention provisions. As discussed in Chapter 10, an accused who is found not guilty on the ground of mental illness, either at trial or at a special hearing, is detained indeterminately on the basis of presumed dangerousness. Similarly, a person detained for a “limiting term” upon a finding of guilt at a special hearing (see Chapter 4) may be released prior to the expiry of that term if they are found to present no danger to themself or the community. “Dangerousness” is also relevant to parole decisions (see para 12.33).
12.7 A further means of detaining people considered dangerous is preventive detention - involving, for example, detention imposed on offenders who are otherwise eligible for release at the expiry of a determinate sentence or limiting term, but who, for reasons arising from the nature of their offence, behaviour, or other reasons, are believed to present a danger to themselves and/or the community. Apart from the mental illness provisions, preventive detention (in the sense of imposing an indeterminate sentence for perceived dangerousness) does not exist in New South Wales. If it is assumed that an acceptable determination of “dangerousness” can in fact be made, an issue arises whether it is appropriate for society to detain people - who cannot otherwise be detained under mental health legislation or the principles and provisions of criminal law - by the employment of specific preventive detention legislation. In the Issues Paper the Commission sought submissions on whether there is a need in New South Wales for preventive detention legislation or other measures for people with an intellectual disability who are considered to be dangerous.13 The Legal Aid Commission of NSW stated in a submission that it is:
unreasonable to place additional restraint on intellectually disabled or mentally ill persons when dangerous members of the wider community are also entitled to unconditional freedom at the expiration of their sentences.14
General sentencing principles: proportionality
12.8 The High Court’s decisions in the Veen cases15 confirm that the principle of proportionality demands that protection of the public cannot justify the imposition of a sentence greater than that otherwise appropriate under the “just deserts” principle: “a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender”.16 There is no such impediment where a statute provides for preventive detention. Indeed, Deane J suggested the need for such legislation in Veen (No 2):
... the protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence.17
Preventive detention statutes - Australia
12.9 Most States and Territories have some form of indeterminate or additional detention legislation. Some of these provisions have not been used frequently in recent times, although there has a been a recent trend towards the introduction of further provisions in this area. The most recent developments have occurred in Victoria, Queensland and Western Australia.
12.10 New South Wales. The Habitual Criminals Act 1957 (NSW) allows a judge to declare a convicted offender an “habitual criminal” where: the offender is 25 years old or above; he or she has served, on at least two previous occasions, separate terms of imprisonment for indictable offences; and the judge considers that detention is “expedient with a view to such person’s reformation or the prevention of crime”.18 A sentence of at least 5 years and no more than 14 years may then be imposed in addition to the sentence for the subject offence.19 There is provision for early release at the direction of the Governor,20 but otherwise no formal review process. Because the additional sentence is imposed at the time of conviction, it is not affected by the prisoner’s good behaviour during the initial sentence period; but conversely is not able to be extended if, at the end of the additional sentence, the prisoner remains dangerous. The Act is effectively in disuse.21 Additional sentences are also possible under s 11522 and s 44323 of the Crimes Act 1900 (NSW). Whether these sections should be repealed and whether the Habitual Criminals Act 1957 (NSW) should be repealed or strengthened were raised in an Issues Paper24 prepared by Dr Roger Brown as part of the Attorney General’s review of sentencing laws in New South Wales. However that paper merely raised the issue for discussion and did not contain any recommendations. It did, however, suggest that this was an issue which could be considered in future by this Commission.25 Recently the Attorney General has announced a review of the Habitual Criminals Act 1957 (NSW) “to ensure that more effective use is made of that legislation to send a clear message that a life of crime is not acceptable to the community.”26
12.11 Tasmania. Under the Criminal Code Act 1924 (Tas) an offender, who appears to be at least 17 years of age, convicted of a crime involving an element of violence for at least the second time, can be declared a “dangerous criminal” and detained at the Governor’s pleasure; if “the judge is of the opinion that such a declaration is warranted for the protection of the public”,27 having regard to the characteristics of the offences and the offender, medical/other opinion, and any relevant matter.28 There is no review provision.
12.12 Northern Territory. The Criminal Code Act 1983 (NT) provides for the imposition of an indeterminate sentence29 on an offender either declared an habitual criminal because of the number and nature of prior convictions or “the manner of his life revealed by the evidence of such previous convictions”;30 or incapable of controlling his/her sexual instincts, where the offence and history of convictions are of a sexual nature, or for any other reason.31 Absolute or conditional discharge is by application to the Supreme Court.32
12.13 South Australia. Under the Criminal Law (Sentencing) Act 1988 (SA) an indeterminate sentence may be imposed for repeated convictions for certain offences,33 or any conviction for other specified offences or where the offence is one which suggests “that the defendant may be incapable of controlling his or her sexual instincts.”34 Release is by way of application to the Supreme Court.35
12.14 Victoria. Considerable controversy and concern arose recently in Victoria over the anticipated release from prison of Garry David (now deceased), who was believed to represent a danger to the community. Garry David was diagnosed as having a personality disorder, but was not “mentally ill” under mental health legislation and therefore could not be civilly committed. The Government responded with the Community Protection Act 1990 (Vic): “to provide for the safety of members of the public and the care or treatment and management of Garry David”.36 An order for preventive detention (not exceeding 12 months) could be made by the Supreme Court if it was satisfied, on the balance of probabilities, that Garry David: “(a) is a serious risk to the safety of any member of the public; and (b) is likely to commit any act of personal violence to another person.”37 While a detention order was in force regular reports, on specific matters,38 to the responsible Minister39 were required; and Garry David could be released only by a further order of the Supreme Court.40 The Act was the only Australian preventive detention legislation which involved an assessment of the prisoner at the time of release, rather than at conviction or sentencing. As such, detention was prolonged only for as long as a threat to community safety was posed.
12.15 In 1993 the Act was repealed and a regime of indeterminate sentencing inserted into the Sentencing Act 1991 (Vic).41 The new sections provide that where the court:
is satisfied, to a high degree of probability, that the offender is a serious danger to the community because of -
it may, on its own initiative or upon an application by the Director of Public Prosecution (“DPP”), sentence a person convicted of a serious offence (as defined42) to an indefinite term of imprisonment and must nominate the non-parole period it otherwise would have imposed (the “nominal sentence”).43 In assessing whether the offender is a serious danger to the community, the court must have regard to the circumstances of the offence, medical or psychiatric evidence, the risk of serious danger to the community, and the need to protect members of the community.44 The indefinite sentence must be reviewed (i) where an application is made by the DPP, as soon as practicable after the expiry of the nominal sentence; or (ii) where the application is made by the offender, at any time after the expiry of three years after the review in (i) and thereafter at intervals of not less than three years.45 Where the court is not satisfied that the offender remains a serious danger to the public, it must order that the indefinite sentence be discharged, and “make the offender subject to a five year reintegration program administered by the Adult Parole Board and issue a warrant to imprison in the same way as if it had sentenced the offender to a term of imprisonment for five years”.46
12.16 Queensland. The Penalties and Sentences Act 1992 (Qld) provides for indeterminate detention upon conviction for a “violent” offence,47 where the court is satisfied that mental health legislation does not apply and that the offender is “a serious danger to the community”.48 Where an indefinite term is imposed, the court must specify the fixed term it otherwise would have imposed (the “nominal sentence”);49 from which the timing of review procedures is calculated,50 and which represents the minimum sentence a subsequent court may impose after discharging an indefinite sentence.51
12.17 Western Australia. The Criminal Code Act 1913 (WA) provides for an indeterminate sentence upon repeated convictions for specific offences,52 or any conviction for an indictable offence, having regard to the characteristics of the offender and/or the offence.53 The Crime (Serious and Repeat Offenders) Act 1992 (WA) provides for the indeterminate detention of juveniles54 and adults55 convicted of violent or repeat offences, as defined.56 Release for juveniles and adults is by way of an order of the Supreme Court and at the Governor’s pleasure respectively.57
Objections to preventive detention
12.18 Generally. Preventive detention of persons beyond the sentence for the instant offence amounts to incarceration without conviction. According to one legal commentator, preventive detention:
12.19 Other commentators have argued that preventive detention is additional unearned punishment for the public benefit. It relies upon the uncertain concept of “dangerousness”, undermines the “just deserts” principle, and has been described as “the hallmark of governments with little respect for due process”.59 Preventive detention may transgress human rights (such as freedom from cruel and unusual punishment, the presumption of innocence, and the right to equality before the law)60 as well as offending international standards and obligations within international treaties, conventions and declarations to which Australia is a party (for example, the United Nations Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, and the United Nations Declaration on the Rights of Mentally Retarded Persons 1975). Further, it has been argued that the imposition of indeterminate sentences may indirectly affect criminal acts and trials, as:
- the prospect of indeterminate detention may provide an incentive to kill a victim rather than risk identification;
- an accused fearing the imposition of a preventive sentence may be less likely to plead guilty;
- prisoners serving indeterminate sentences would have little incentive to participate in prison rehabilitation programs; and
- it starts to undermine the judicial role in sentencing.61
12.20 Arguments in favour of preventive detention often assume that the aims of retribution and community protection within the sentencing process are separate. Conversely, it is argued that they are in fact complementary - that community safety is provided for adequately by the “just deserts” model, and that to apply any other course would be to “open the floodgates of discretionary abuse and arbitrary decision-making.”62 For example, while prior criminal record and the nature of prior criminal behaviour cannot be relied upon absolutely as predictive criteria for dangerousness, they do operate within conventional sentencing procedures to justify longer detention upon successive convictions. People with prior convictions:
lose claim to leniency. ... [They] are generally disadvantaged by being entitled to ... less favourable parole eligibility entitlements. ... Recidivists are adequately punished without resort to concepts of extra punishment.63
12.21 The justification for preventive detention of certain convicted offenders has been said to be a redistribution of risk between potential victims and potential aggressors.64 However, whether concerns for the protection of the community outweigh those for the liberty of the individual; and whether the denial of individual liberty on this basis is best implemented via the criminal justice system, remain controversial issues.
12.22 People with an intellectual disability. Even if it is assumed, albeit erroneously, that intellectual disability does have some causal connection to dangerousness, the jurisdiction of the criminal law to provide community protection does not extend beyond that contained within “just deserts” sentencing principles. Preventive detention is sometimes viewed as providing an opportunity for offender rehabilitation. Given that intellectual disability is a permanent condition, it is somewhat dishonest to call the detention of a legally sane individual “treatment”. Further, if the basis of indeterminate detention is rehabilitation, then logically release should occur only when the person is rehabilitated. Statutes which allow for the imposition of a determinate or indeterminate period of detention in addition to that attracted by the offence at the time of conviction, cannot be said to be rehabilitative, for the imposition, and in the case of a determinate sentence the length, of the sentence is unaffected by any rehabilitation which occurs during the initial sentence period. Unless the person detained is incapacitated in some way (for example, through old age or other infirmity):
there can be little confidence that the person assessed as dangerous will be any less dangerous at the end of a period of preventative detention. ... Indeed, there is good reason to believe that the person will be more dangerous.
Preventative detention is likely to result in the dangerous person placed for an extended period in a violent environment, an environment which may positively reinforce violent behaviour. Preventative detention may exacerbate any feelings of resentment towards the community or particular members of the community held by the detained person.65
12.23 Where preventive detention is indeterminate, release would only be available where the person no longer displays the behaviour which gave rise to the detention - usually violent or sexual in nature. Given that detention is imposed as a result of past behaviour, present dangerousness would be determined by behaviour while incarcerated. Reliance upon such information is inappropriate:
[o]n the one hand the structured environment of a prison or mental institution may remove many of the situational stresses and pressures present in everyday life which trigger off violent behaviour in some persons. On the other hand, for other persons the only way they are able to survive a violent environment such as a prison or mental institution is to respond aggressively and violently. While their behaviour may be effective in surviving the hostile environment of the institution it will almost inevitably mean they are deemed unsuitable for release.66
12.24 A further negative aspect of preventive detention concerns the task of psychiatrists within the detention process. Not only do psychiatrists disagree as to what, if anything, constitutes identifiable dangerousness, they also may find the determination of dangerousness for the purpose of justifying indeterminate preventive detention a task inconsistent with their usual therapeutic role. It has been argued that:
[p]sychiatry and the community can well do without legislation which, even if originally well-intended, ends up being imprecise and discriminatory in its application and anti-therapeutic if not frankly harmful to individuals. Some legislation is illusory when it comes to protection of the community. Forensic psychiatrists giving evidence on poorly formulated issues and questions sometimes end up as the unwilling de facto gaolers of offenders who receive no treatment and may require none.67
Alternatives to additional periods of punishment
12.25 One option is to assist prisoners who otherwise may be considered dangerous upon release with their re-integration into the community. Currently there are no such options available for offenders with an intellectual disability once a person is released. (See paras 12.40-12.43 and paras 13.25-13.32 in relation to the provision of services.) The Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”) stated (in relation to prisoners with an intellectual disability serving a “limiting term”, although the issues are applicable to all prisoners with an intellectual disability considered dangerous):
there are currently no support systems in the community to “catch” them when they are eventually released. Nor are there sufficient educational supports in the prisons to assist them reintegrate into the community. This increases the likelihood of repeat offenders. Some of these individuals require high levels of support and intensive one to one training for them to learn more socially acceptable conduct. Very few receive this support. Some will continue to be a serious danger to the community.
Provision must be made for these few individuals. Perhaps a system similar to the Mental Health Review [Tribunal] needs to be established for such persons, with some way of referring to the [Tribunal] those prisoners to be released and considered dangerous. The [Tribunal] may then have the legal power to determine if it is necessary for the safety of the community that they should be placed in a secure environment. The placement is not for punishment. It should also be a requirement that the person be given support services with the long term aim being the replacement of dangerous behaviours with more acceptable behaviours so that the person can live in the community. The law must state what must be found to justify such an order, the purpose of the detention, and what is to be provided for the person while detained. It must also provide a process of regular review and appeal.68
12.26 In rejecting such an option, another submission stated that:
12.27 It has been argued that dangerousness arising from mental disorder is not a matter for the criminal justice system at all, but rather for civil commitment:
any measure which calls for punishment over and above that which is deserved, though it be for social defence purposes, is foreign to the objects of the criminal law and should therefore not be associated with it. In other words, once punishment has been limited in accordance with “an evaluation of an offender’s moral responsibility for his crime” the opportunities for affording added protection to the community under the criminal law are exhausted.
... [P]reventive detention should be relegated to the civil side of the “protection of the community” ledger, and should no longer constitute an integral part of the criminal law.
... Once the term of imprisonment has come to an end the detainee should be entitled henceforth to be treated in the same manner as any other civilian ...70
12.28 The Commission, in principle, agrees that the criminal justice system should not be associated with “punishment over and above that which is deserved”. Apart from the defence of mental illness (for which special considerations arise) the Commission does not generally support preventive detention as a sanction available to the criminal justice system. A detailed consideration of preventive detention in all its various forms (civil and criminal) is, however, beyond the scope of this reference. If such an exercise is to be undertaken, it should be noted that preventive detention is clearly not an issue which is limited to people with an intellectual disability. Nor has the Commission’s research to date revealed a clear or necessary connection between intellectual disability and criminality or dangerous behaviour. Therefore it seems inappropriate to single out people with an intellectual disability for any such legislation.
PAROLE AND POST RELEASE SERVICES
Parole
12.29 Parole in New South Wales is governed by the Sentencing Act 1989 (NSW) (the “Sentencing Act”), which also established the Offenders Review Board (the “Board”). As discussed in Chapter 11, under the Sentencing Act, sentences may be imposed by way of a fixed term;71 or alternatively by a minimum term (which must be served in prison) together with a further additional term during which the prisoner may be released on parole.72 If the sentence does not exceed six months, then a fixed term must be imposed.73 If the total sentence is less than three years, release on parole is usually automatic at the end of the minimum term.74 This automatic parole (following a brief interview with the Parole Service and the prisoner signing a statement that they understand the parole conditions) means that the first service which picks up the person’s intellectual disability in some cases may be the NSW Probation Service, as part of its supervision of people released on parole.75
12.30 If the total sentence is three years or more, parole may be granted by the Board at the end of the minimum term where the prisoner is otherwise eligible under the provisions of the Sentencing Act.76 The Sentencing Act further provides that parole may not be granted unless the Board has, amongst other things:
12.31 A parole order is subject to specific mandatory conditions. These are that the offender must be of good behaviour and not commit any offence, that the order may be revoked if any condition is breached, and that:
[t]he order may be revoked if the court that made the order ... or the Board determines that it has sufficient reason to believe that the offender, having been released from custody, has not adapted to normal lawful community life.78
Other “supervising conditions” may be imposed, including that the offender be supervised by the Probation Service,79 report to nominated persons at nominated times and places, enter employment, and reside at a particular address.80
12.32 Parole has been criticised as creating uncertainty and disparity in sentencing practice, failing to reduce recidivism, and incorporating predictions of dangerousness and recidivism which are beyond the capacities of the (parole) Board.81 The Australian Law Reform Commission has recommended the abolition of parole for federal offenders, to allow the sentencing process to become fairer, simpler, and more acceptable to the community.82 On the other hand, it has been suggested that if the ratio of parole to head sentence is fixed, as occurs under the New South Wales Sentencing Act, the graduated steps from full custody to unconditional liberty provided by parole is beneficial to offenders with a mental disorder.83 The Commission does not propose to make any comments about the advantages and disadvantages of parole, except in so far as the present system affects people with an intellectual disability.
Parole and people with an intellectual disability
12.33 Parole poses particular problems for people with an intellectual disability. Firstly, as discussed, the questionable assumptions surrounding the concept of “dangerousness” find their way informally into parole decisions via the criterion of “public interest”. Secondly, the prisoner must show the potential, and then exhibit the ability, to adapt to normal lawful community life. Such an adaptation is difficult for many prisoners, but may be more so for prisoners with an intellectual disability, as discussed below. And thirdly, there is no guarantee that decision-makers within the parole process are sensitive to those circumstances of people with an intellectual disability which, if not taken into account, may place them at a disadvantage in obtaining parole, and set them up to fail upon release:
Studies show that intellectually disabled offenders tend to serve longer sentences than non-disabled offenders for the same crimes and are less likely to be released on parole. In part, this is a consequence of poor adaptive and social skills, the unlikelihood of participating in work or education programs, the propensity to break prison rules, and lack of community facilities (eg residential facilities) willing to accept them upon release or as an alternative to gaol.84
12.34 The Prisoners Legal Service of the Legal Aid Commission, for example, commented on the disadvantages faced by prisoners with an intellectual disability, particularly if they were without family or other support to consider release options for them. It was commented that they tended to spend longer periods in custody as they were not being released on parole at the expiration of their minimum term, and were affected by the lack of post release programs and accommodation.85
12.35 Lack of accommodation and other post release services. The Parole Service has also commented on the difficulties caused by the fact that a prisoner’s case for parole has to be considered by the Board at least 60 days before the end of the minimum term,86 and that it is difficult to organise appropriate accommodation (which often forms one of the conditions of parole) for offenders with an intellectual disability this far in advance. People on pre-1989 life sentences who have an intellectual disability face particular difficulties in this area. They may stay in prison for far longer than another offender without a disability for a similar crime because of the lack of anywhere for them to go on their release. An illustration of this was provided in the application for a re-determination of a life sentence under s 13A of the Sentencing Act 1989 (NSW) by a prisoner who had already been in custody for 20 years.87 His sentence was re-determined as a minimum term of 22 years with an additional term (during which he could be released on parole) of the rest of his life. The prisoner accordingly faces a possible indefinite time in custody due to the absence of any appropriate facility in the community into which he could be released on parole. The judge in that matter recommended that the New South Wales Department of Community Services give urgent consideration before the expiration of the minimum term to the establishment of an appropriate facility for him.
12.36 Another example of how a lack of services adversely affects the parole process for people with an intellectual disability was provided by a parole officer, who highlighted the disadvantage created by a lack of accommodation when parole is applied for. The parole officer stated that it is extremely difficult to secure accommodation for people with an intellectual disability, especially when the person has served a gaol term, and even more so where the offence concerned was arson or of a violent or sexual nature.88 Services for ex-prisoners/parolees are reluctant to accept people with an intellectual disability, who require a great deal of support, but disability service providers also are reluctant to accept ex-prisoners. As the Board cannot make a conditional parole order until it has decided, in light of the offender’s circumstances, that it will be feasible to secure compliance,89 the Board usually requires the nomination of an address to ensure supervision - hence, people with an intellectual disability are disadvantaged.90 Prisoners with an intellectual disability who seek parole are likely to fall through the accommodation gap and remain in gaol longer than non-disabled prisoners. The Parole Service provided an example of the steps taken by parole officers to obtain accommodation and post release services for a particular offender referring to the difficulties faced, including: having an offer of a place at a boarding house withdrawn because the other residents had “read about him in the paper”; boarding houses and hostels being unable to confirm a place over 60 days in advance of release; another agency refusing to provide services because it believed the relevant services were the responsibility of the Department of Community Services (“DOCS”); and DOCS stating that because the person had a “borderline” intellectual disability, he therefore did not fall within their guidelines.91 Lack of post release services is considered further at paras 12.40-12.43 below.
12.37 Understanding of parole conditions. Even if parole is granted to a prisoner with an intellectual disability, they may have difficulty meeting the conditions imposed:
[m]entally disabled offenders can easily be placed in a “no win, back to gaol” situation through the demands of probation or parole conditions which they cannot meet. The simplest tasks - catching public transport to the probation and parole office, using a telephone to make appointments, telling the time, knowing the date, paying fares, negotiating time away from work or sheltered workshop, enrolling in a suitable educational course, keeping away from negative peer group influences: may prove insurmountable barriers for the mentally disabled offender. Having breached the conditions, the severity of sentencing escalates. It is essential that an assessment be undertaken of the offender’s daily living skills and abilities to meet the conditions, and appropriate support services (eg travel training) be provided.92
12.38 IDRS argued in a submission to the Commission that:
those people responsible for setting and enforcing the conditions must be able to identify:
- when a person may have an intellectual disability;
- the special needs of people with an intellectual disability; and
- the supports available in the community for people with an intellectual disability.93
In a submission to the Commission the Western Australian Department of Corrective Services noted that:
the courts may question the suitability of offenders with an intellectual disability for parole. These concerns may to a large extent relate to the offender’s capacity to complete the parole period successfully. It must be recognised that these offenders have special needs in respect of supervision and habilitation. Provided that adequate attention is given to meeting these needs there is no reason to expect that a person with an intellectual disability would be less likely than any other offender to complete his/her parole period successfully.94
12.39 This raises the question of how the needs of parolees with an intellectual disability are to be met, and who primarily is to meet them. In a submission to the Commission, the governmental predecessor of the New South Wales Department of Community Services stated:
The release from custody of people with a developmental disability needs close attention. All too often, there is no family to return to. The hostel services do not necessarily meet the needs of people with a developmental disability. As a result, recidivism is high as the only option is often a return to “care” in the prison system.95
Some innovative resources have been prepared: for example, in Victoria, social work students produced a “visual pamphlet” video to help ex-offenders with an intellectual disability plan their future after release from prison. The video also explains the services provided by one agency, Francis House.96
Post release services
12.40 Efforts to rehabilitate prisoners, to curb their “dangerous” or recidivist tendencies, and to prepare them for release back into the community should occur within the normal prison term. The issues facing the Department of Corrective Services, such as difficulties in identifying whether a person has an intellectual disability and the need for specialist services have been discussed in Chapter 11 and will not be repeated here. Post release services must also be considered. The Kingsford Legal Centre emphasised that the power to incarcerate raises an obligation to reintegrate:
custody often results in a diminution of living skills; without adequate services the recidivism rate for intellectually disabled offenders has been high.
We strongly submit that if the criminal justice system insists on incarcerating intellectually disabled offenders knowing that custody has a greater than usual impact on them, then the system must also ensure re-integration services are available. More emphasis should be given to the provision of such services. The cost of their availability would be small compared to the cost of recidivism to the public and to intellectually disabled people.97
The Kingsford Legal Centre also suggested that:
there should be a person working in [the Probation Service] with a special ability to deal with people with an intellectual disability. At the very least, there should be minimum guidelines produced to enable community corrections officers to understand and to deal effectively with people with an intellectual disability. Such measures would help reduce the incidence of breaches of recognisance conditions; such breaches occur frequently due to a lack of understanding on the part of the intellectually disabled person.98
12.41 In the United States there has been at least one program (in Pima County, Arizona) where a probation service adopted a highly active role in supervising probationers with an intellectual disability, with a view to reducing the incidence of recidivism.99 All new probationers were screened and those identified as possibly having an intellectual disability referred for a more thorough evaluation. The identified probationers received intensive counselling and supervision and were initially seen each day by the probation officer. The ultimate impact of the program is unknown.100 Also in the United States some States have special pre-release and post release “transitional programs” to provide for a successful return to the community.101
12.42 In its submission, the Office of Legal Aid and Family Services questioned the capacity of probation and parole services to effect the re-integration of people with an intellectual disability:
Difficulties with parole are probably magnified for those with intellectual disabilities. Depending on the period of time an individual has spent in custody, there may be severe life handicaps to overcome in order to reintegrate into society. Parole officers usually only have time to periodically check on the progress of those assigned to them. They have no time to spend on extensive counselling, life skills education, or assistance in organising basic requirements.102
12.43 In any event support may not be limited to supervision, and may be required beyond the parole period. Other post release options in the community must be considered. Submissions and consultations involving the Commission identified the absence and/or insufficiency of community-based accommodation and services as contributing to recidivism and preventing successful reintegration into the community.103 (See also Chapter 13.) If released, a prisoner without community support may fail to comply with the parole order, and/or is more likely to re-offend, and so end up back within the correctional setting. Submissions have stated:
Although there is general agreement among criminal justice system agencies that the absence or lack of accommodation and services is the crucial issue, there is less certainty over which body should be responsible for providing them.
A multi-disciplinary approach: the Lancaster Program
12.44 There is a tendency to view the roles of the criminal justice and welfare systems, as distinct:
Workers in both the criminal justice system and the community [mental health/intellectual disability] system often do not know how to deal effectively with the reciprocal system, or lack the means or time to do so. This results in offenders with mental retardation falling through the cracks and receiving less than appropriate and adequate services from either system.106
An alternative approach involves the integration of custodial and community services and service personnel. Integration of services is necessary to ensure that prisoners with an intellectual disability who are released do not fall into gaps between existing services, and re-offend or otherwise breach parole/release conditions: “[t]he solution is a team approach incorporating representatives from all services, one of whom is appointed as case manager.”107 Establishing links between the released person and service providers in the community can ease the person’s reintegration into the community, and avoid them being simply “cast adrift” when Corrective Services, the Probation Service or the Mental Health Review Tribunal are no longer accountable for their care and custody.
12.45 The issue of a co-ordinated service has been considered in several submissions to the Commission. In a submission to the Commission, DOCS stated that:
Corrective Services personnel should be able to gain assistance from the Department of Community Services in the planning and implementation of post release support for a person with an intellectual disability. Joint case management of clients with an intellectual disability may be an option particularly where the person would be likely to seek assistance from the Department when their parole period was complete.108
12.46 The Western Australia Department of Corrective Services operates a “case management” scheme for all prisoners, which assists prisoners plan the various stages of their sentence, including post release.109 In the case of a prisoner with an intellectual disability considered dangerous, it was stated that the case manager would usually be the Authority for Intellectually Handicapped Persons, and the sentence plan developed would include elements of a behaviour management program designed to address or curtail the offending behaviour. Where the offender is willing to comply, supervision and management in a residential facility may arise as a post release option. The Western Australian Department also stated in its submission that it is considering the development of a system of service brokerage for prisoners with an intellectual disability, to assist the process of prisoner reintegration. The service broker’s role usually would begin upon the prisoner’s release, and would involve establishing appropriate community support networks, acting as the link between those services and the prisoner, and working with the prisoner’s Community Corrections Officer if release was by way of parole. There may be a need in some cases for the service broker and case manager to work together at both the pre and post release stages, to ensure that the development and execution of programs at both stages are complimentary and appropriate.
12.47 One model of service integration is the Special Offenders Services program operating in Lancaster, Pennsylvania, USA (“the Lancaster program”), the goal of which is to:
enable offenders with mental retardation to successfully complete probation or parole. This is accomplished by providing teaching, training, services, and counseling in a habilitation plan specifically designed to meet the needs of each offender. The habits, routines, and mores learned in this setting ... apply to all areas of their lives, helping them to successfully participate in society, and not just to probation and parole.110
The Lancaster program deals only with probationers/parolees with an intellectual disability. Participation in individualised programs is a condition of release on parole, and so is compulsory. A failure to participate amounts to a breach of probation/parole regulations. A prisoner in breach of the program is returned to prison before being brought before the original sentencing judge, who determines whether detention will continue. This process usually is enough to modify prisoners’ behaviour, and so the co-operation of the courts is necessary in order for the program to be successful.111 The philosophy of the Lancaster program is to build individualised programs based upon services towards which the client has shown interest, such as vocational training. Because many people with an intellectual disability breach probation/parole conditions because they have not been given the opportunity to learn either what constitutes unacceptable behaviour, or the consequences that society attaches to that behaviour, the Lancaster program reinforces the link between behaviour and consequences. This applies also to positive consequences arising from success within the individual’s programs, so that skills are learned and self-esteem increased. Because staff are knowledgable about available services, referrals have a high success rate.112 A juvenile unit was added in 1985.
12.48 For nine years the Lancaster program maintained a recidivism rate of 5% compared to the national USA rate of 60%. This success is said to flow from:
- the adoption of a “joint systems” approach: that is, combining intellectual disability and probation/parole services in one department, so that the best of both services is provided;
- a restricted caseload;
- the consistency and intensity of service provision. Clients are seen on a regular basis (at the initial stage, daily), crisis situations are dealt with immediately, and individual programs are designed to ensure client success which can be built upon; and
- the focus is on making clients responsible and accountable for their behaviour, backed by, if necessary, the sanction of the courts.113
12.49 There is a strong argument for the adoption of an inter-departmental program similar to the Lancaster program in New South Wales, which would apply to prisoners released from custody in addition to those on non-custodial sentences. However, before such a program could be established in New South Wales, several issues would have to be resolved:
- any program would have to be sufficiently resourced to implement the special programs and services required for individual clients, and to provide sufficient staff to maintain high levels of supervision;
- community-based residential accommodation would have to be in place to provide further supervision where necessary;
- staff for the program would have to be drawn from DOCS and the Probation Service, with staff trained in the areas of assessing and designing programs, and implementing behavioural modification programs;
- the program would have to have communication and interaction with criminal justice agencies, other government agencies such as the Department of Education, the Department of Housing, and mental health services (for clients with a dual diagnosis), and voluntary agencies offering services;
- the program must be run according to legislative guidelines, to ensure that programs are court sanctioned, and determinate in their length and effect.114
PROVISIONAL PROPOSALS FOR REFORM
46. That a pilot service co-ordination scheme, based upon the Special Offenders Service, Lancaster County, Pennsylvania, USA, be established jointly by the New South Wales Department of Community Services and the NSW Probation Service, with staff drawn from both organisations, and that appropriate community-based accommodation be established to provide for those participants in the program who do not have adequate accommodation or community ties to facilitate their participation in the program.
Negotiated agreements
12.50 A further alternative is that suggested by the Victorian Parliament’s Social Development Committee, which rejected the use of preventive detention and recommended instead pre-release programs and intensively supervised parole defined by a negotiated agreement, extending in some instances beyond the time-frame of the sentence, to enable the person to live with support within the community.115 A negotiated agreement would be a voluntary contract between the government and an individual offender, negotiated according to statutory provisions. The contract would include reference to: the mechanism of negotiation (in relation to both the formation and any subsequent amendment of the agreement); rehabilitation and re-entry into the community; and arrangements as to accommodation, education, training, employment, support programs, and health. Criminal sanctions for a breach of the agreement also would be negotiated and form part of the agreement. Sanctions may involve the imposition of an additional term of imprisonment up to an agreed maximum or a return to the court to re-negotiate the agreement.116 The parole and agreement conditions envisaged by the Social Development Committee generally were very restrictive, in order to ensure protection of the community.
12.51 Although the recommendations of the Social Development Committee were aimed primarily at persons with severe personality disorder, offenders with an intellectual disability may benefit from the use of negotiated agreements suitably structured to reflect their different needs and possible difficulties in negotiating and abiding by the necessarily complex agreement. Negotiated agreements could operate within, and may actually enhance, a co-ordinated services scheme such as the Lancaster program discussed above. Although the Lancaster program and negotiated agreement schemes are enforceable by criminal sanction, the combination of the two may facilitate offender compliance, by allowing the offender some input into the program with which he or she is to comply.117
PROVISIONAL PROPOSALS FOR REFORM
47. That the proposed pilot service co-ordination scheme include, in appropriate circumstances, a negotiated agreements option, so that offenders with an intellectual disability may have some input into the structure and sanctions of their individual programs. This option should provide safeguards to ensure that the person’s disability and unequal bargaining position are not exploited.
FOOTNOTES
1. See, for example: J Floud and W Young Dangerousness and Criminal Justice (Cambridge Studies in Criminology XLVII, Heinemann, London, 1981) discussed and summarised in J Floud “Dangerousness and criminal justice” (1982) 22 British Journal of Criminology 213 and T Honderich “On justifying protective punishment” (1982) 22 British Journal of Criminology 268; M Craft and A Craft (eds) Mentally Abnormal Offenders (Bailliere Tindall, London, 1984); H Prins Dangerous Behaviour, the Law, and Mental Disorder (Tavistock, London, 1986); S Gerull and W Lucas (eds) Serious Violent Offenders: Sentencing, Psychiatry and Law Reform (Australian Institute of Criminology, Conference Proceedings 19, Canberra, 1993); P Shea Psychiatry in Court (Institute of Criminology Monograph Series 3, Sydney, 1993) ch 9-11. See also the four reports of the Victorian Parliament’s Social Development Committee: Inquiry into Mental Disturbance and Community Safety.
2. D Greig “The politics of dangerousness” in Gerull and Lucas 47 at 50.
3. Prins at 87.
4. Lucas “Review for release: the use and misuse of psychiatric opinion” in Gerull and Lucas 223 at 224. See also Shea at ch 11.
5. W Glaser “Assessing the dangerousness and treatability of sex offenders in the community” in Gerull and Lucas 245 at 251.
6. J Van Groningen “Dangerousness and preventive detention” (July 1991) Australian Crime Prevention Council 28 at 30.
7. Lucas at 235-241.
8. Prins at 87-88.
9. See, for example: Submission by Dr W Glaser to the Victorian Parliament’s Social Development Committee Inquiry into Mental Disturbance and Community Safety (“VSDC”) (2nd Report, Government Printer, Melbourne, March 1992) at 212. Other literature has stated:
• Serious crimes by people with an intellectual disability against the person usually arise not from greater aggressiveness, but a reduced ability to inhibit the expression of aggressive impulses and/or an ignorance of right and wrong due to reduced social skills: S C Hayes “Mental retardation: Criminal justice?” (1982) 7 Legal Service Bulletin 168 at 169; E S Rockoff and R J Hofmann “The normal and retarded offender: some characteristic distinctions” (1972) 21 International Journal of Offender Therapy and Comparative Criminology 52-56, cited in S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 45-46.
• Violence may result from an escalation of events initiated by harmless but socially inappropriate behaviour: Prins at 112-113. Violence may also result from boredom, inappropriate responses learned within institutional environments, or a “backlog” of behavioural problems caused by prior inadequate assessment and treatment: VSDC (4th Report, August 1992) at 126-128.
• Most sexual offences are due to a low functional age (the person may have the interpersonal skills of a much younger person): cite It has also been stated that “[t]hey may have normal libido but less self-control”: VSDC (4th Report, August 1992) at 120. Lack of self-control may arise from difficulties in acquiring interpersonal skills and/or coping with the demands of society, for example, pornography is a major source of distorted perceptions about human relationships and sexuality in offenders with an intellectual disability: submission by Dr W Glaser to VSDC (2nd Report, March 1992) at 215.
10. Hayes and Craddock at 43.
11. M B Santamour “A functional discussion of mental retardation and criminal behavior” in M B Santamour and P S Watson (eds) The Retarded Offender (Praeger, New York, 1982) 133 at 133-134.
12. For instance a variety of results have been found in relation to the incidence of sex offences by prisoners with an intellectual disability: for example a New South Wales study found that there was no significant difference between the percentage of maximum security prisoners with an intellectual disability (3.7%) who had been convicted of sex offences and the non-disabled prison population (4%): S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population - An Empirical Study (1988). However, a West Australian study found that the percentage of prisoners with an intellectual disability (50%) or a borderline intellectual disability (30.8%) incarcerated for sex offences was higher than for non-disabled prisoners (15.4%). The prison census found a level of 9.6% for sexual offences: G P Jones and J Coombes The Prevalence of Intellectual Deficit Among the Western Australian Prisoner Population (Department of Corrective Services, Western Australia, 1990) at 21-22.
13. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System (Issues Paper 8, 1992) at para 6.18-6.26.
14. Legal Aid Commission of NSW Submission (8 January 1992) at 3.
15 Veen v R (No 1) (1978) 143 CLR 458; Veen v R (No 2) (1988) 164 CLR 465.
16. Veen v R (No 2) (1988) 164 CLR 465 at 472.
17. Veen v R (No 2) (1988) 164 CLR 465 at 495.
18. Habitual Criminals Act 1957 (NSW) s 4.
19. Habitual Criminals Act 1957 (NSW) s 6. Note that the sentences are to be served concurrently: s 6(2). See also R v Roberts (1961) 78 WN (NSW) 329.
20. Habitual Criminals Act 1957 (NSW) s 7.
21. P Svensson “The case for due process in reviewable sentences” in Gerull and Lucas 115 at 122.
22. The Crimes Act 1900 (NSW) s 115 creates a new offence with a maximum penalty of 10 years, if an offender with a previous conviction is then convicted of any offence specified in s 114 (“Being armed, etc, with intent to commit offence”).
23. The Crimes Act 1900 (NSW) s 443 provides for an additional period of imprisonment when a person has been previously convicted of an offence. It has been held that this section only applies if the judge believes the maximum punishment available for the present offence is insufficient in the circumstances: R v McIvor [1933] 50 WN 57.
24. R Brown Sentencing Review 1994 (Issues Paper, Attorney General’s Department, New South Wales, June 1994).
25. Brown at 12.
26. The Hon J Hannaford MLC “Address on the Launch of the Law and Order Policy Statement” (22 June 1994). See also M Coultan “Fahey promises 500 extra police” The Sydney Morning Herald (23 June 1994) at 2.
27. Criminal Code Act 1924 (Tas) s 392.
28. Criminal Code Act 1924 (Tas) s 392(1A).
29. Criminal Code Act 1983 (NT) s 398.
30. Criminal Code Act 1983 (NT) s 397.
31. Criminal Code Act 1983 (NT) s 401.
32. Criminal Code Act 1983 (NT) s 399, 403.
33. Criminal Law (Sentencing) Act 1988 (SA) s 22.
34. Criminal Law (Sentencing) Act 1988 (SA) s 23 (this must be determined by psychiatric assessment).
35. Criminal Law (Sentencing) Act 1988 (SA) s 24.
36. Community Protection Act 1990 (Vic) s 1.
37. Community Protection Act 1990 (Vic) s 8.
38. Community Protection Act 1990 (Vic) s 15.
39. Community Protection Act 1990 (Vic) s 14.
40. Community Protection Act 1990 (Vic) s 12.
41. Sentencing (Amendment) Act 1993 (Vic). A new Subdivision “Indefinite Sentences”, s 18A-18Q, was inserted.
42. Sentencing Act 1991 (Vic) s 3(1).
43. Sentencing Act 1991 (Vic) s 18A, 18B.
44. Sentencing Act 1991 (Vic) s 18B(2).
45. Sentencing Act 1991 (Vic) s 18H.
46. Sentencing Act 1991 (Vic) s 18M.
47. Penalties and Sentences Act 1992 (Qld) s 162: “violent offence” is defined as: (a) an indictable offence that involves the use or attempted use of violence against a person and for which the offender may be sentenced to imprisonment for life; or (b) an offence against specified sections of the Criminal Code, some of which may render the offender liable to a life sentence. This Act repealed the habitual criminal provisions of the Criminal Code 1899 (Qld), except in relation to people already detained under the previous legislation.
48. Penalties and Sentences Act 1992 (Qld) s 163(3). Section 163(4) sets out the factors which the court must consider in assessing whether an offender is a serious danger to the community, but these are not exhaustive criteria. Section 169 places the onus of satisfying the Court onto the prosecution.
49. Penalties and Sentences Act 1992 (Qld) s 163(2).
50. Penalties and Sentences Act 1992 (Qld) s 171, 172.
51. Penalties and Sentences Act 1992 (Qld) s 173.
52. Criminal Code Act 1913 (WA) s 661.
53. Criminal Code Act 1913 (WA) s 662. See Chester v R (1988) 165 CLR 611 for consideration of this provision by the High Court.
54. Crime (Serious and Repeat Offenders) Act 1992 (WA) s 6. (Subject to particular exclusions: Criminal Procedure Amendment Act 1993 (WA) s 17.)
55. Crime (Serious and Repeat Offenders) Act 1992 (WA) s 8, subject to s 19.
56. Crime (Serious and Repeat Offenders) Act 1992 (WA) s 4.
57. The Act was to expire on 6 March 1994, but was extended to 6 June 1994, and amended, by the Criminal Procedure Amendment Act 1993 (WA) Part 4. The Act is to expire when s 124 of the Young Offenders Bill 1994 (WA), which is currently before the Western Australian Parliament, commences operation.
58. I Potas Just Deserts for the Mad (Australian Institute of Criminology, Canberra, 1982) at 195-196.
59. G Zdenkowski “Crimes of punishment” The Bulletin (1 June 1993) at 24.
60. See for example Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 6.
61. L Porter “Indefinite jail would hurt victims too: criminologist” The Sunday Age (28 March 1993) at 5, reporting comments by Professor A Freiberg, referring to the proposed Victorian legislation.
62. Potas at 209.
63. Potas at 196.
64. Floud (1982) at 218.
65. D Thomson, A Birgden and M Morison “The release of serious violent offenders and community safety” in Gerull and Lucas 255 at 259.
66. Thomson, Birgden and Morison at 260.
67. Lucas at 241.
68. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 4.
69. Queensland. Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 6.
70. Potas at 210 [footnote references omitted].
71. Sentencing Act 1989 (NSW) s 6.
72. Sentencing Act 1989 (NSW) s 5.
73. Sentencing Act 1989 (NSW) s 7.
74. Sentencing Act 1989 (NSW) s 24, 25.
75. Consultation with representatives of the NSW Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994.
76. Sentencing Act 1989 (NSW) Part 3, Division 2.
77. Sentencing Act 1989 (NSW) s 17(1).
78. Sentencing Regulation 1989 (NSW) r 8(1).
79. Sentencing Regulation 1989 (NSW) r 8(2), 8(3), 8(4).
80. Sentencing Regulation 1989 (NSW) Schedule 1.
81. Potas at 184.
82. Australia. Law Reform Commission Sentencing of Federal Offenders (Interim Report 15, 1980) at paras 342-350.
83. Potas at 185-186.
84. S C Hayes “What corrections should offer the intellectually disabled offender - an idealistic view” in D Challinger (ed) Intellectually Disabled Offenders (Australian Institute of Criminology, Seminar Proceedings 19, Canberra, 1987) 85 at 89 [footnote reference omitted].
85. Consultation with representatives of the DPP, Police Prosecutors, Legal Aid Commission, Law Society of NSW, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994; and consultation with solicitors from the Legal Aid Commission of NSW on 17 March 1994.
86. Sentencing Act 1989 (NSW) s 18.
87. R v Oehlers (unreported) Supreme Court, NSW, 6 May 1994, Blanch J, L047/1990.
88. Mr R Hogan, Director, Parole Service, Department of Corrective Services (New South Wales) Oral Submission (2 March 1994).
89. Sentencing Regulation 1989 (NSW) reg 8(5).
90. Mr R Hogan, Director, Parole Service, Department of Corrective Services (New South Wales) Oral Submission (2 March 1994).
91. Mr R Hogan, Director, Parole Service, Department of Corrective Services (New South Wales) Submission (22 June 1994), attaching a case study showing the difficulties obtaining post release accommodation.
92. S C Hayes “Services for offenders: Mentally disabled prisoners - planning resources” (1991) 5 (2) National Council on Intellectual Disability: Interaction 32 at 34-35.
93. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 10.
94. Western Australia. Department of Corrective Services Submission (19 November 1991) at 4.
95. New South Wales. Department of Family and Community Services [now Department of Community Services], Ageing & Disability Services Submission (21 January 1992) at 2.
96. C McShee, Francis House, Epistle Post Release Service “New video for intellectually disabled ex-offenders” (1992) 4 (2) Keypoints 5.
97. Kingsford Legal Centre Submission (29 October 1992) at 5-6.
98. Kingsford Legal Centre Submission (29 October 1992) at 5.
99. C D Walters “The probation experience for adult retarded offenders” in Santamour and Watson 371-386.
100. E F Reed “Legal rights of mentally retarded offenders: Hospice and habilitation” (1989) 25 Criminal Law Bulletin 411 at 440-441.
101. Reed at 433-436.
102. Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 5.
103. See for example: Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 4-5; Kingsford Legal Centre Submission (29 October 1992) at 5; New South Wales. Department of Corrective Services Submission (14 November 1991) at 2; New South Wales. Office of the Public Guardian Submission (26 August 1992) at 2; consultation with representatives of the NSW Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994; and Epistle Post Release Service Submission (26 August 1992) at 1.
104. Kingsford Legal Centre Submission (29 October 1992) at 5.
105. New South Wales. Department of Family and Community Services [now Department of Community Services], Office on Disability Submission (26 November 1991) at 2.
106. H R Wood and D L White “A model for habilitation and prevention for offenders with mental retardation: The Lancaster County (PA) Office of Special Offenders Service” in R W Conley, R Luckasson and G N Bouthilet (eds) The Criminal Justice System and Mental Retardation: Defendants and Victims (Paul Brookes Publishing Co, Baltimore, 1992) 153 at 155. See also Reed at 437-439.
107. Hayes (1991) 32 at 34.
108. New South Wales. Department of Community Services, Ageing & Disability Services Submission (2 September 1992) at 2.
109. Western Australia. Department of Corrective Services Submission (19 November 1991) at 6-7.
110. Wood and White at 155.
111. Wood and White at 156.
112. Wood and White at 156.
113. Wood and White at 162-163.
114. S C Hayes Reducing Recidivism amongst Offenders with an Intellectual Disability (unpublished report, 1994) at 17-18.
115. VSDC (Interim Report, 1990) at 88-90.
116. VSDC (Interim Report, 1990) at 91-94 for example of a negotiated agreement.
117. See also Hayes (1991) at 36-37.
