INTRODUCTION

2.1 This chapter is concerned with how crime¹ affects people with an intellectual disability,² whether as offenders, victims or witnesses. The Commission considers that it is important to discuss in what ways and how frequently people with an intellectual disability come into contact with the criminal justice system before making recommendations about how they may be better treated. Much of the concern to date in relation to people with an intellectual disability in the criminal justice system has been directed towards the issue of over-representation. The aim of this chapter is to canvass other important issues as well, such as explanations of why such over-representation arises; the types of crimes involved; and the question of diversion of people with an intellectual disability from the criminal justice system.

Common life experiences of people with an intellectual disability

2.2 In order to understand how people with an intellectual disability interact with the criminal justice system, it is important to consider the typical life experiences of these people in our society. While the Commission recognises the individual nature of intellectual disability and the dangers of generalisation, people with an intellectual disability as a group have, in varying degrees, common experiences of vulnerability to abuse, discrimination, and social marginalisation due to their disability.

2.3 Although no hard data have been located, those who live in the community may be most at risk of coming into contact with the criminal justice system; in “whole of life” institutions challenging and antisocial behaviour and actions may be managed internally and not brought to the attention of the criminal justice system. In both community and institutional settings, people with an intellectual disability are disadvantaged by a limited and usually segregated education, and a greater likelihood of being unemployed and living on welfare on, or just above, the poverty line. In the community, people with an intellectual disability often reside in unstable accommodation such as boarding houses or hostels.³ Some people may be aware of the fact that they have an intellectual disability and may feel stigmatised by such a label, and attempt to hide it from the outside world.⁴ Those who have spent a large part of their lives in institutions are usually inadequately prepared for integration into mainstream society; and chronically inadequate and unco-ordinated service provision leads to many people being insufficiently supported or supervised in the community. People with an intellectual disability often experience a lack of social, recreational and sexual relationship opportunities in their lives. Substance abuse is also a frequent problem. Indeed, the high rate of appearances before the courts has been linked to the lack of support services able or willing to address the “high support” needs of individuals with challenging behaviour. It has even been commented that “[s]ome support workers look to the criminal justice system as a way of relieving them of ‘troublesome’ individuals”.⁵ This challenging behaviour may be linked to the cause of the intellectual disability, for example brain damage or chromosomal abnormality. It is against this disadvantaged background that the question of crime and people with an intellectual disability must be considered.

OVER-REPRESENTATION

Difficulties in determining the extent of the problem

2.4 Attempts to gain an accurate picture of the numbers of people with an intellectual disability involved in the criminal justice system, are affected by the following factors:

• Lack of empirical evidence. Statistics about offenders or victims with an intellectual disability are not kept by the police, courts, prisons or the New South Wales Bureau of Crime Statistics and Research.⁶ Some organisations, for example, the Legal Aid Commission of New South Wales,⁷ do not keep statistics on the numbers of clients with an intellectual disability, because they believe it is discriminatory. People with an intellectual disability may not use the specialist social services from which most statistics derive, or they may escape notice by belonging to another group such as the homeless or substance abusers. Indeed, it has been found that most offenders with an intellectual disability have had no contact with specialist services other than perhaps a special class or school, and at the time of entering prison are not receiving social security benefits on the basis of their intellectual disability.⁸
• Non-identification. People with an intellectual disability may not be identified by police, lawyers, courts or custodial personnel. Some people are particularly skilled at concealing their disability; they may become “street wise” and appear quite competent after a number of contacts with the law.⁹ The fact that a person may not ever have been formally diagnosed means that there may be no records to alert criminal justice system personnel to the problem.
• Use of different definitions of intellectual disability and methods of data collection. The definition used for a particular study will affect the numbers. Some include “borderline” intellectual disability while others do not; some only measure IQ (intelligence quotient) scores, while other definitions include adaptive deficits. Different figures are also obtained depending on the choice of sampling and assessment techniques.
• Inter-jurisdictional variations. Statistics obtained from different jurisdictions necessarily differ owing to the variations in sentencing, custodial or non-custodial options, parole practices and availability of community services.

Despite these difficulties and variations, recent studies clearly indicate that people with an intellectual disability are over-represented within the criminal justice system, both as offenders and as victims.

OVER REPRESENTATION AS OFFENDERS

2.5 It has been estimated that approximately 2-3% of the New South Wales population has an intellectual disability.¹⁰ By contrast, the most recent New South Wales prisons study suggested that people with an intellectual disability comprise at least 12-13% of the New South Wales prison population, that is, approximately four times that of the general population.¹¹ This study used a definition of intellectual disability which included both the results of intelligence tests and social and adaptive skills. While most research in relation to offenders has occurred in prisons, it has also been suggested that offenders with an intellectual disability are over-represented in other parts of the criminal justice system.

2.6 The Commission’s own research in this area, undertaken by Associate Professor Susan Hayes of The University of Sydney and based upon a sample drawn from six New South Wales Local Courts, suggested that more than one third of persons appearing before such courts on criminal charges may have significant intellectual deficits.¹² The aim of the study was to explore one of the unanswered questions in relation to the acknowledged over-representation of people with an intellectual disability in prison populations, namely, whether the over-representation at the prison stage reflects an over-representation of persons with an intellectual disability appearing before courts, or whether they received differential treatment by the courts, resulting in a greater proportion of accused persons with an intellectual disability receiving custodial sentences. Local Courts were selected because of the high flow-through rate of court appearances, and the range and diversity of offences. Most minor offences are disposed of at this level, and serious criminal offences also initially come before Local Courts for committal proceedings.

2.7 The first phase of the study was undertaken in four Local Courts and found that 14.2% of the sample of 120 persons were in the mildly intellectually disabled range of cognitive ability with a further 8.8% in the borderline intellectual disability category. Since the first phase was limited by the small number of Aboriginal people in the sample, a follow-up study focused on two rural Local Courts, Bourke and Brewarrina, to ensure greater Aboriginal representation. The results revealed that 36% of the sample of 88 persons appearing before these Courts had an intellectual disability, including 7% in the range of moderate intellectual disability, with a further 20.9% of borderline intellectual ability. When the results of the two phases were combined, 23.6% of the sample had results in the intellectual disability range and a further 14.1% in the borderline range. Thus 37.7% of the total sample obtained results which indicated serious deficits in cognitive skills.¹³ Such people would have serious difficulties comprehending the court processes. These numbers are higher than the numbers of people with an intellectual disability in New South Wales prisons.

2.8 Although there is apparently no Australian research on the prevalence of suspects with an intellectual disability coming to the attention of the police, recent research in the United Kingdom indicates that over-representation also occurs at the police stage, for example, in one study 9% of suspects at police stations had an IQ below 70 (indicating intellectual disability) and a further 42% had IQ scores between 70 and 79 (indicating borderline intellectual disability).¹⁴

2.9 Other studies, both in Australia and overseas, generally point to the over-representation of people with an intellectual disability as offenders, though the numbers involved vary greatly. The different methodologies and possible shortcomings of each of these studies are not canvassed in this Report, but their results are summarised in Appendix B, Table 1.

Offenders: Explanations for over-representation

2.10 There are many possible explanations for this over-representation.¹⁵ Some theories in relation to offenders include:

• Susceptibility hypothesis - this suggests that people with an intellectual disability “are more likely to engage in delinquent behaviour because of their impaired mental abilities”.¹⁶
• Different treatment hypothesis - this suggests that people with an intellectual disability are not more delinquent but more likely to be found so by the courts owing to their vulnerability in criminal justice processes.¹⁷
• Psychological and socio-economic disadvantage - this covers a variety of theories about psychological and socio-economic disadvantage leading to over-representation, for example the fact that people with an intellectual disability are more likely to be living in community environments where they can become involved in, or suspected of, committing crimes.¹⁸

2.11 Although there is a dearth of research, intellectual disability and criminal behaviour have frequently been linked.¹⁹ Deane and Glaser have stated:

It was not until the Second World War that the seemingly inevitable nexus between intellectual disability and crime was seen to be a product more of inadequate services and facilities rather than any “innate” criminal tendencies of [people with an intellectual disability] themselves.²⁰

Additionally, analyses of the characteristics of criminal offenders and the causation of crime, particularly the effect of low socio-economic status, point clearly to the fact that the background characteristics of the offender with an intellectual disability are not radically different from those of the general criminal population:

In summary, a low intellectual level does indeed appear to be one of many factors predisposing criminal behaviour. However, the presence of family, social and environmental factors are of enormous importance, as is their interaction with intellectual disability.²¹

The most recent Australian studies, discussed below, support the different treatment hypothesis and the emphasis on psychological and socio-economic disadvantage as explanations for over-representation.

Different treatment hypothesis

2.12 A number of authors and studies suggest that offenders with an intellectual disability will be treated differently to non-disabled offenders in the criminal justice system, which in turn explains their over-representation.²² They argue that people with an intellectual disability:

• are more likely to be arrested, questioned and detained for minor infringements of public order law;²³
• are more likely to come before the courts as a result of police policies with respect to prosecuting cases where the offender appears abnormal or possibly dangerous;²⁴
• may be persuaded to confess to a crime they have not committed;
• may not have their “rights”, such as the right to silence, explained in a way they can understand;²⁵
• may be convicted more easily as they tend to confess rather than plea-bargain;²⁶
• may be more often refused bail, “perhaps as a result of previous breaches of conditions, or lack of support and resources enabling them to obtain bail, or inadequate supervisory arrangements which do not satisfy the court’s requirements”;²⁷
• may receive more custodial sentences, for example because of the lack of alternative placements in the community;²⁸
• tend to serve longer sentences or a greater percentage of their sentence before being released on parole;²⁹ and
• may require maximum security facilities for segregation and “protection” needs.³⁰

2.13 Attitudes of criminal justice system personnel. Linked to the different treatment hypothesis is the tendency for people with an intellectual disability to be stereotyped and attributed with characteristics which cause them to be seen as social outcasts. This can affect their treatment in the community, with people with an intellectual disability being singled out for negative attention, or not having their disability acknowledged.³¹

2.14 An on-going Western Australian study has been examining the attitudes, perceptions and procedures in the criminal justice system to see if they reflect negative community stereotypes which are likely to contribute to differential treatment, and, in turn, to the over-representation of people with an intellectual disability.³² The research conducted to date, which involved police, judges/magistrates, prison officers, community corrections officers and service workers (including lawyers) responding to a questionnaire and interview, has provided some support for the different treatment proposition, but little support for the susceptibility hypothesis. Although all groups interviewed agreed that people with an intellectual disability have particular problems and special needs, such as communication difficulties, which would disadvantage them in the criminal justice system, some of the responses of police and service workers “were not logically derived from the agreed characteristics of people with an intellectual disability, which might indicate stereotyping and perceptions being based on underlying prejudices”.³³

2.15 The importance of the issue of community and professional attitudes to people with disabilities in addressing the needs of people with an intellectual disability in the criminal justice system has also been emphasised by Associate Professor Lindsay Gething of The University of Sydney’s Community Disability and Ageing Program (“CDAP”). She stated that evidence collected by CDAP indicates that community attitudes towards people with disabilities are marked by negative stereotypes, which affect the manner and fairness of their treatment by various organisations and institutions. She concluded that unless attitudes are changed by increased awareness of disability issues, institutional and procedural changes to the criminal justice system will achieve little for people with an intellectual disability. Hence, she advocated mandatory disability awareness training for police, lawyers and correctional services officers, tailored to the needs of the particular group.³⁴

2.16 Associate Professor Gething also prepared a report for the Commission in September 1992, which suggested that:

there is a trend towards people anticipating higher levels of discomfort at the prospect of meeting someone with an intellectual disability ... than for most other forms of disabling conditions.

Findings also suggest that members of the judicial system [legislators, judges, lawyers, solicitors, police and legal clerks] experience more discomfort and hence display more negative attitudes than members of the Australian population towards people with disabilities in general.³⁵

Psychological and socio-economic disadvantage

2.17 A more complex approach than the different treatment theory is one which considers other psychological and socio-economic disadvantages faced by people with an intellectual disability who come into contact with the criminal justice system. A recent Victorian study of all admissions into two specialist units for offenders with an intellectual disability between 1990 and 1994 revealed that “intellectual disability is itself merely a marker for an overwhelming array of psychosocial disadvantages”.³⁶ The Victorian study found that prisoners with an intellectual disability, “even more so than the ‘mainstream’ prison population, experience unemployment, major educational disadvantages, childhood institutionalisation, disrupted or disturbed families of origin, frequent contact with psychiatric services, alcoholism, drug addiction and poor social skills”.³⁷ Other studies have found that there is a high incidence amongst offenders with an intellectual disability of “... multiple problems, such as psychiatric history, behaviour disorder, sensory deficit, or communication problem”.³⁸ With such data it could be suggested that intellectual disability is only one possible explanation for over-representation and may not necessarily be the causal factor suggested by the susceptibility and different treatment hypotheses above.

2.18 It must also be acknowledged, however, that there may be reasons for offending that are linked to the pressures associated with the particular life experiences and attributes common to people with an intellectual disability which affect, and perhaps increase, their entry into the criminal justice system, including: a desire for recognition and status; a desire to please others; a yearning for acceptance and belonging; an unmet need for meaningful relationships; low self esteem; poor social skills; inability to deal with problems; a restricted social network; and lack of family support.³⁹ As well, the intellectual disability may contribute to impulsiveness, suggestibility, exploitability, and an inability to conceal actions, all of which may lead to increased offending (and increased detection).⁴⁰ Their background, which often includes alcoholism and an ensuing sense of failure,⁴¹ may make people with an intellectual disability particularly susceptible to exploitation and learning inappropriate behaviour. The “inappropriate behaviour and petty crime may often be seen as a symptom of a deficit in the knowledge, skills and experience necessary for independent living”.⁴² For example, the Commission was told of a young man charged with shoplifting. A family member commented:

Prior to this charge [X] had never stolen from his family or the public. Unfortunately, after family members questioned him, it was established that he stole because, at the residential [facility] for people with intellectual disabilities where he now lived, stealing was not reprimanded. Continuously other house residents wore his clothes, although clearly labelled with his name, and they claimed them as their own. Other items taken by other house residents included music tapes, Walkman, and presents from the family.

These facts were not considered in court and [X] was fined.⁴³

2.19 Such factors may indicate that people with an intellectual disability are not necessarily or solely experiencing harsher treatment at later stages in the criminal justice process, but are actually coming into contact more often with the criminal justice system. This theory is supported by the conclusions of a Swedish birth cohort study, which followed subjects with an intellectual disability from birth to age 30. The study found that the men were three times more likely to offend than men without a disability, and five times more likely to commit a violent offence, with the women being almost four times more likely to offend than their non-disabled peers, and nearly 25 times more likely to commit a violent offence.⁴⁴ Moreover, the criminal behaviour appeared before the age of 18 years in over half of the subjects. Such studies indicate the complexity of factors contributing to over-representation, including aspects of the lifestyle, characteristics and environment of people with an intellectual disability which increase the likelihood of engaging in behaviour which will bring them to the attention of the criminal justice system. Additionally, such studies reveal that the behaviour which eventually lead to arrest was usually apparent during childhood and yet was never addressed by schools, the health or social services system.

TYPES OF CRIMES COMMITTED

2.20 The wide media coverage of a number of violent crimes involving offenders with an intellectual disability⁴⁵ may have reinforced a distorted view amongst the general public about the criminal tendencies of people with an intellectual disability. Recent studies have shown that people with an intellectual disability are most likely to commit offences involving impulsive or unpremeditated behaviour, such as offences against property (arson, break and enter, car theft), against persons generally (murder, assault),⁴⁶ or sexual offences,⁴⁷ whereas crimes involving planning or foresight (drug trafficking, robbery, false pretences, escape) feature infrequently.⁴⁸ In contrast to what was previously thought, sexual offences have been found to be particularly prominent amongst offenders with an intellectual disability and the pattern of sex offending indicates that some offences are related to the functional age of the person (an adult with the interpersonal skills of a young child), while others reflect actual sexual deviancy.⁴⁹ (See also Appendix B, Table 2.)

2.21 As far as the severity of the crime is concerned, offenders tend to commit either relatively minor, but repeated, offences, or a major, violent crime, with only a low incidence for offences in the middle range of seriousness, which tend to be crimes requiring planning ability. It has been suggested that the high incidence of minor crimes reflects a high rate of recidivism. Those who commit serious crimes tend to do so owing to a lack of ability to inhibit expression of aggressive impulses, rather than being more aggressively motivated.⁵⁰

2.22 People with an intellectual disability, it has also been suggested, are likely to be charged for “public order” offences. This may be because of a lack of understanding about “crime” and its consequences, and the difference between doing an act in private and doing the same act in a public place. Inadequate sex education, as well as legal education, may be a major problem. A person:

does not learn appropriate sexual behaviour if he is not taught how to act socially. What may be seen by police and witnesses to be an intellectually disabled person committing an act of indecency could be a poorly educated adult who has never received the proper education.⁵¹

As Deane⁵² points out, not only are people with an intellectual disability likely to explore their sexuality in inappropriate ways if released into the community after having been treated like children in institutions, but they are also more likely to be caught and are not as sophisticated as other offenders in their attempts to conceal their offences.

OVER-REPRESENTATION AS VICTIMS

2.23 The above discussion has focused on the disproportionate number of people with an intellectual disability featuring as suspects or offenders. The over-representation and particular vulnerability of people with an intellectual disability as victims of crime, particularly sexual assault, is also cause for concern. Recent studies in New South Wales,⁵³ and South Australia,⁵⁴ for example, have found a high incidence of sexual assault of such persons and, in the South Australian study, of other crimes.⁵⁵

2.24 The actual level of victimisation may be even higher, as a Victorian study suggested that victims with an intellectual disability did not report crimes for a variety of reasons, including their lack of understanding that a crime had been committed, ignorance of where to go to seek help, especially if past responses from staff or service providers involved no action being taken, and fear of the consequences or of the police or those in authority. The study also commented on the small number of cases which actually reach the courts, and the difficulty that these victims have in understanding court formalities and processes.⁵⁶ Similarly, the South Australian study found that while the rate of reporting crime occurrence to the police was comparable to that of people without a disability, the rate of victim-initiated report was not. Victims with an intellectual disability tended to report crime occurrence to a non-disabled caregiver.⁵⁷

2.25 Further difficulties arise when both the offender and the victim have an intellectual disability, as is common in residential facilities, training centres or sheltered workshops. In some cases neither victim nor offender would be found to be competent as a witness in court. Often in such situations crime is either not reported to the police or if reported, the police leave the organisation to deal with the alleged offence.⁵⁸ Alternatively, some organisations now report every minor “crime” which tends to devalue the serious crimes in the eyes of the police. It has been suggested that this policy is motivated by a misunderstanding of “normalisation” theories or alternatively by factors such as insurance claims on property and workers’ compensation.

Victims: Explanations for over-representation

2.26 The Public Interest Advocacy Centre has commented:

... the impact of crime is very unequally distributed across the community. It is the vulnerable and marginalised who are most likely to be victimised, and upon whom being victimised has the most effect. They are the least able to protect themselves from crime (insurance, security), to isolate themselves from it geographically (moving away) and to ameliorate its damage (fewer financial resources).⁵⁹

2.27 The common life experiences of people with an intellectual disability and the characteristics which make people likely to be suspects or offenders discussed at paras 2.2-2.3 and 2.18 above, also serve to explain the particular vulnerability of people with an intellectual disability as victims of crime and the problems they must overcome in order to be accepted as reliable witnesses. It has been stated that:

[a] person with an intellectual disability is someone who will, by definition, have difficulty with reading, writing, comprehension, and money skills. He or she will have difficulty with community survival skills and in social situations. The disabled individual is likely to be unaware of many of the subtle, and sometimes even the gross, cues that guide our everyday behaviour and alert us to the possibility of criminal victimisation. Further, when a crime occurs, intellectually disabled individuals are unlikely to be fully cognisant of the variety of criminal justice services at their disposal, or of how they may be accessed. They may have difficulty realising that particular events constitute a crime, in conveying this fact, or in providing proof of the event. They are likely to have only limited knowledge of their rights and responsibilities in the situation ... therefore, individuals with an intellectual disability can be seen as exhibiting greater vulnerability and as engaging in behaviours which may facilitate the criminal in the performance of a crime. This increases their attractiveness as victims, while lack of knowledge of rights and responsibility may affect the impunity of the criminal who victimises these individuals.⁶⁰

2.28 Living situation and level of disability have been found to affect victim likelihood, with the most dependent people and those living with other disabled individuals at the greatest risk, and the few very independent individuals living alone also at high risk.⁶¹ As with offending behaviour, lack of social skills and sex education may also contribute to victimisation.⁶²

CRIMES COMMITTED AGAINST PEOPLE WITH AN INTELLECTUAL DISABILITY

2.29 Many press reports depict the abuse and exploitation of people with an intellectual disability,⁶³ yet the Silent Victims Report commented on “the paucity of obtainable data in relation to the nature and extent of crimes against people with intellectual disabilities”. That Report also suggested a number of the reasons for this dearth of data, including: confusion about whether a crime had been committed against a person with an intellectual disability; low reporting rates by service providers; and the fact that thefts and minor assaults may be the norm in some institutional environments and therefore not recognised as crime.⁶⁴

2.30 It is commonly suggested that people with an intellectual disability are particularly likely to be victims of fraud or sexual assault. These crimes figured prominently in the examples of types of crime committed against clients of the Intellectual Disability Rights Service.⁶⁵ (See also the studies cited in Appendix B, Table 3.) Submissions have also referred to the common occurrence of physical assault or “crimes of exploitation”, whether monetary or emotional, with harassment also appearing to be common, in particular by neighbours. Some service providers believe that the sexual assault of people with an intellectual disability is such a problem because of their vulnerability and because the myths about disability and sexuality mean that the secret of the assault is more likely to be kept. As well, people with an intellectual disability find it harder to be believed in a justice system which relies on the verbal skills and the memory of witnesses. They may also put up with assault more than “normal” people. The perpetrator of the assault may also be a person in authority which makes it more difficult to report and be believed.

WITNESSES

2.31 The systemic discrimination against people with an intellectual disability does not only occur with suspects/offenders and victims. Given that many people with an intellectual disability live with and/or associate primarily with other people with an intellectual disability, there is every likelihood that the only witness to a crime committed against or by one of them will have an intellectual disability. As was observed above in the case of victims, such a witness will have to overcome the inevitable hurdles of not being taken seriously by the police, and possibly being regarded as an unreliable witness in court, as their credibility, as well as their capacity to understand the concept of telling the truth may be doubted by the judge or jury.

THE DILEMMA OF A "DOUBLE DISADVANTAGE"

2.32 Some people with an intellectual disability have other characteristics which universally set people at a disadvantage in society. Apart from the fact that many people with an intellectual disability belong to the lowest socio-economic classes, people with an intellectual disability may also be doubly disadvantaged by their youth (juveniles), indigenous status (Aborigines), ethnicity (people from non-English speaking backgrounds), mental illness, drug or alcohol addiction, physical disability, homosexuality or gender. Special rules and procedures already exist for most of these groups to ensure that they are fairly treated. The scope of this reference does not allow an in-depth analysis of the above factors, but the Commission recognises that they may add to the vulnerability of people with an intellectual disability in criminal justice system processes and their likelihood of becoming involved in crime. Such doubly disadvantaged groups must be recognised in the preparation of policy and services (see Chapters 10-11). The “double disadvantage” is accompanied by a general lack of information and specialist services for such groups. This chapter briefly summarises some of the particular issues which arise for juveniles, Aborigines, people with a mental illness and women who have an intellectual disability. More detailed background information was provided in the Commission’s previous papers for this reference.

Juveniles

2.33 There have recently been a number of major reviews and initiatives affecting the juvenile justice system as a whole, all of which contain recommendations likely to be of assistance to juveniles with an intellectual disability.⁶⁶ Specific concerns for juveniles with an intellectual disability are their enhanced vulnerability in custody and the desirability of maintaining community links, as well as the danger that they will fall between the gaps of youth services and disability services despite being at risk of becoming victims and/or offenders. (See also paras 10.21-10.22 below.)

Aborigines

2.34 The over-representation of, and the discrimination and difficulties faced by, Aborigines within the criminal justice system have been extensively documented, in particular by the Royal Commission into Aboriginal Deaths in Custody.⁶⁷ Research Report 5, mentioned in para 2.7 above, confirmed the particular disadvantage of the general Aboriginal population entering the criminal justice system. Every attempt was made to reduce cultural bias in assessing whether people appearing before the chosen courts had an intellectual disability, but even if the results of the assessments were culturally biased, they nevertheless indicate that many Aborigines would find it difficult to comprehend the non-Aboriginal sub-culture prevailing in the criminal justice system.⁶⁸

2.35 More research is required to determine the prevalence and particular problems of Aboriginal people with an intellectual disability, as deficits in communication amongst the general sub-group, and the extremely strong protective network of Aboriginal prisoners lead to many such people not being identified by criminal justice system personnel. Other concerns related to Aboriginality include difficulties caused by geographical isolation for those in remote areas, and lack of access to specialist services.⁶⁹

Mental illness

2.36 Where a person has a “dual diagnosis”, that is, both an intellectual disability and a mental illness, they may find themselves falling between services designed for either group. The Burdekin Report⁷⁰ found that there is a lack of services, research and expertise in the area, despite the fact that people with an intellectual disability were more likely than non-disabled people to experience mental illness, and that the existing psychiatric services are inappropriate. The Report referred to the negative effects of the “compartmentalisation” of the two conditions, particularly in terms of ongoing service provision, and the dangers of inappropriate use of medication. These findings were supported by the submissions received.⁷¹

Gender

2.37 As discussed in Research Report 4, although only a small proportion of the Australian prison population is female, it has been found that the likelihood of a woman receiving a harsh sentence increases if either she is economically disadvantaged, or she has been subject to previous legal control. Women with an intellectual disability are likely to face “double jeopardy” in the courts, with sentences probably being decided on the basis of a negative view of their social and economic circumstances, as well as upon a paternalistic “for their own good” paradigm of harsh treatment, reflecting the period during the early 1960s when female delinquents generally were so treated.⁷²

DIVERSION

2.38 The discussion above of the disadvantages faced by offenders with an intellectual disability raises the final question of whether they should be dealt with by the criminal justice system at all. A specific term of the Commission’s reference was whether, and to what extent, people with an intellectual disability should be diverted from the criminal justice system, including consideration of the custodial and non-custodial alternatives to sentencing and detention. Diversion schemes are sometimes used when it is believed that the usual punishments would be inappropriate or ineffective; for example, in relation to juveniles, drug offenders and certain types of sex offenders. The advantages and disadvantages of the different forms of diversion have been discussed extensively elsewhere.⁷³

2.39 Diversion from the criminal justice system means different things to different people - for some it means special units within the mainstream options, while for others it means transferring people from the criminal justice system into a completely separate system. Diversion is difficult to define precisely because many “alternatives” have now been incorporated within the mainstream criminal justice system (for example, the use of mediation or other forms of alternative dispute resolution, or offender rehabilitation programs). Also, a number of measures sometimes described as “diversionary” may better be seen as alternative penalties. Many submissions received by the Commission supported diversion of some kind for people with an intellectual disability.⁷⁴

2.40 However, the diversion of people with an intellectual disability does have its critics. A report of the Victorian Office of the Public Advocate argued that a decision by police not to charge because of a perception that people with an intellectual disability are childlike and therefore not “responsible” for their actions, or in need of “treatment” rather than legal sanctions, is not in the interests of the person (or the community), as the person is denied the right to an open examination of their guilt or innocence. The diversion away from the criminal justice system may also lead to additional social control or other adverse consequences.⁷⁵ By contrast, the New South Wales Attorney General’s Committee considered that discretion should be used prior to charging an offender with an intellectual disability, such as is already available to police when administering cautions to children. While not advocating a lenient approach which would reinforce unacceptable behaviour in such an offender, the Committee considered that, in certain situations, having the police firmly impress on the offender that the behaviour is inappropriate may be beneficial.⁷⁶

2.41 Various submissions have supported the second approach, considering it appropriate to have an option whether or not to involve a person with an intellectual disability in the criminal justice system, particularly for minor crimes. For example, the Commonwealth Office of Legal Aid and Family Services supported diversion and rejected the involvement of people with an intellectual disability in the system merely for the sake of applying the principle of normalisation. It pointed out that taking the principle to its extreme would mean denying these people any special procedures within the criminal justice system.⁷⁷ Also, the Legal Aid Commission of New South Wales stated that the option of not charging is appropriate for people with an intellectual disability in some cases, in the same way that police may exercise this option for non-disabled people, especially given the added trauma and distress that a person with an intellectual disability may face.⁷⁸ Diversion may be most appropriate for cases where the accused has such a severe level of disability that he or she is incapable of understanding the nature and effect of the alleged crime or the proceedings. In such cases prosecution is not in the public interest.⁷⁹ Automatic diversion, however, assumes that all people with an intellectual disability are the same, without allowing for individual levels of responsibility, and poses the problem of where all these people are to be diverted, given that services and facilities in general are already inadequate. It may be in the interests of the accused to receive a finite penalty within the criminal justice system, rather than indefinite supervision or detention under some diversionary options.

2.42 Diversion to some extent already occurs at various stages of the criminal justice system, for example:

• Police may not proceed against a person with an intellectual disability (see Chapter 4). Concern has been expressed, however about vesting in the police, who do not exercise legislative power, “discretionary powers which, for practical purposes, may amount to powers to make law, or dispense with compliance with the law”.⁸⁰
• Some offences can be dismissed at the Local Courts level because of the person’s disability (Mental Health (Criminal Procedure) Act 1990 (NSW), s 32 - see Chapter 5).
• People who are unfit to be tried or found not guilty on the ground on mental illness follow a different path within the criminal justice system and are ultimately governed by the recommendations of the Mental Health Review Tribunal (see Chapters 5 and 6).
• After conviction some people are “diverted” to special units (see Chapter 11).

2.43 The Commission does not consider that there should be automatic diversion from the criminal justice system. The appropriate treatment of a person with an intellectual disability should be considered. The Commission’s recommendations for reform of such procedures at the various stages of the criminal justice system are outlined in the remainder of this Report.

1. For the purposes of this chapter, “crimes” will refer to those offences found in the Crimes Act 1900 (NSW) and the Summary Offences Act 1988 (NSW), together with common law crimes.

2. See Chapter 3 for an explanation of this term.

3. J Noble and R Conley “Towards an epidemiology of relevant attributes” in R Conley, R Luckasson and G Bouthilet (eds) The Criminal Justice System and Mental Retardation: Defendants and Victims (Paul H Brookes, Baltimore, 1992) at 17-53; A MacEachron “Mentally retarded offenders: prevalence and characteristics” (1979) 84 (2) American Journal of Mental Deficiency at 165-176 as cited in K Deane “Better represented by a poodle: The case of Dominic Simm” (1994) 15 Socio-Legal Bulletin 47 at 48; Roeher Institute No More Victims: A Manual to Guide the Police in Addressing the Sexual Abuse of People with a Mental Handicap (Roeher Institute, Ontario, 1992) at 5-9.

4. See J Dudley Living with Stigma: The Plight of the People who we Label Mentally Retarded (Charles C Thomas, Illinois, 1983).

5. Intellectual Disability Rights Service Submission (6 January 1992) at 2.

6. Lack of data in this particular area is linked to the problem of a general paucity of routine data on the personal characteristics, such as ethnicity and socio-economic status, of both offenders and victims who enter the system: Letter from the New South Wales Bureau of Crime Statistics and Research to the Commission dated 13 September 1995.

7. Legal Aid Commission of New South Wales Submission (8 January 1992) at 1.

8. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 34, referring to S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (Sydney, November 1988) at 39.

9. J Cockram, R Jackson and R Underwood “People with an intellectual disability and the criminal justice system: The family perspective”, paper presented at Partnerships for the Future, 6th Joint National Conference of the National Council of Intellectual Disability and the Australian Society for the Study of Intellectual Disability (26-30 October 1994, Perth) (“Cockram, Jackson and Underwood (1994a)”) at 8.

10. See for example Hayes and Craddock at 30. For administrative purposes, an estimate of 1% is generally used, while 3% is regarded as the highest estimate: Hayes and Craddock at 31.

11. Hayes and McIlwain at 47. This study assessed the prevalence of intellectual disability in five New South Wales prisons: Mulawa Training and Detention Centre for Women, Central Industrial Prison, Parramatta Gaol, Metropolitan Remand Centre and Broken Hill Gaol. The five gaols held a total population of 1,318 prisoners of whom 675 were screened: at 22.

12. New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993) (“NSWLRC RR 4”); and New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Two Rural Courts (Research Report 5, 1996) (“NSWLRC RR 5”).

13. NSWLRC RR 5 at para 3.67.

14. G Gudjonsson, I Clare, S Rutter and J Pearse Persons at Risk During Interviews in Police Custody: The Identification of Vulnerabilities (Royal Commission on Criminal Justice, HMSO, 1993) at 24. See also I Lyall, A J Holland, S Collins and P Styles “Incidence of persons with a learning disability detained in police custody: A needs assessment for service development” (1995) 35 Medicine, Science and the Law at 61-71.

15. See also NSWLRC RR 4 at paras 1.22-1.24 for a discussion of possible reasons for over-representation in prison.

16. C A Buser, P A Leone and M E Bannon “Segregation: Does educating the handicapped stop here?” (1987) 49 Corrections Today at 17.

17. J Zimmerman, W D Rich, I Keilitz and P K Broder “Some observations on the link between learning disabilities and juvenile delinquency” (1981) 9 Journal of Criminal Justice 1 at 10.

18. Hayes and McIlwain at 10.

19. Hayes and Craddock at 1-2.

20. K Deane and W Glaser The Characteristics and Prison Experience of Offenders with an Intellectual Disability: An Australian Study (University of Melbourne, 1994) at 1.

21. J Turk “Forensic aspects of mental handicap” (1989) 155 British Journal of Psychiatry 591 at 592, cited in Hayes and Craddock at 42.

22. See J Cockram, R Jackson and R Underwood “Attitudes towards people with an intellectual disability: Is there justice?”, paper presented at the First International Congress on Mental Retardation: The Mentally Retarded in the 2000’s Society (Rome, March 1994) (“Cockram, Underwood and Jackson (1994b)”) at 4. See also J Bright “Intellectual disability and the criminal justice system: New developments” (1989) 63 Law Institute Journal 933.

23. New South Wales Anti-Discrimination Board Discrimination and Intellectual Handicap (1981) at 320.

24. NSWLRC RR 4 at para 1.22.

25. See Cockram, Jackson and Underwood (1994b) at 4.

26. Hayes and McIlwain at 10.

27. NSWLRC RR 4 at para 1.22.

28. NSWLRC RR 4 at para 1.22; and Cockram, Jackson and Underwood (1994b) at 4.

29. M Ierace “Acting for the intellectually disabled offender” (1987) 25 (4) Law Society Journal 42 at 43; and Bright at 933. See also para 11.33.

30. Hayes and Craddock at 144.

31. W Wolfensberger A Brief Introduction to Social Role Valorisation as a High Order Concept for Structuring Human Services (Training Institute for Human Service Planning, Leadership and Change Agentry, Syracuse University, Syracuse NY, 1992) cited in Cockram, Jackson and Underwood (1994b) at 4.

32. Cockram, Jackson and Underwood (1994b).

33. Cockram, Jackson and Underwood (1994b) at 16.

34. Associate Professor L Gething, Community Disability and Ageing Program, University of Sydney Submission (5 July 1992) at 1.

35. L Gething Attitudes Towards People with an Intellectual Disability of Professionals within the Judicial System (Report compiled for the New South Wales Law Reform Commission, Community Disability and Ageing Program, University of Sydney, 14 September 1992). This preliminary report relied upon information taken from the computerised database for the Interaction with Disabled Persons Scale, which the report argues “is the only widely validated Australian instrument designed to measure community and professional attitudes towards people with disabilities”: at 2. The size of the overall sample, and the small percentage of legal personnel (59 of a total 481), suggests that a larger survey of this group is necessary to gather information about their attitudes to, and the accuracy of their knowledge about, intellectual disability: at 10.

36. Deane and Glaser at 6.

37. Dr W Glaser Submission (23 August 1995) at 2.

38. Hayes and Craddock at 40.

39. Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales, Australia The Missing Services (Departments of Corrective Services and Youth and Community Services, Report, 1985) (“The Missing Services Report”) at 24. See also M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 5.

40. Cockram, Jackson and Underwood (1994b) at 3.

41. Ierace (1989) at 5.

42. The Missing Services Report at 24.

43. Confidential Submission (24 July 1992) at 2.

44. S Hodgins “Mental disorder, intellectual deficiency and crime: Evidence from a birth cohort” (1992) 49 (6) Archives of General Psychiatry 476.

45. Examples include the burning down of the Downunder Backpackers Hostel at Kings Cross (The Sydney Morning Herald (12 December 1992) at 44 and The Weekend Australian (12-13 December 1992) at 5); the bashing murder of an elderly woman near Newcastle (The Newcastle Herald (3 April 1993) at 1); and the strangling of a six year old girl (The Australian (23 March 1995) at 6).

46. Hayes and Craddock at 44. See also Deane and Glaser at 3-4.

47. See Deane and Glaser at 4; G P Jones and K Coombes The Prevalence of Intellectual Deficit among the West Australian Prisoner Population (Department of Corrective Services, Western Australia, October 1990) at 30.

48. For example, Deane and Glaser at 4.

49. Hayes and Craddock at 44, referring to S Hayes, “The intellectually disabled sex offender”, paper presented at the conference Sex Offenders: Management Strategies for the 1990s (Office of Corrections and Health Department Victoria, Melbourne, 1990) at 89-94; S Hayes “Sex offenders” (1991) 17(a) Australian and New Zealand Journal of Developmental Disabilities 221-227.

50. Hayes and Craddock at 45-46.

51. Senior Constable P Fernandez Submission (8 December 1991) at 6.

52. “Disabled prisoners get raw deal with repeated jailings” (10-16 August 1995) Campus Review at 10.

53. New South Wales Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990) at 11. In this study, in the first six months of collection, 55 out of 855 (6.4%) adults referred to the Sexual Assault Service had an intellectual disability. The Report also refers, at 11, to overseas research which revealed a high prevalence of sexual assault against people with an intellectual disability.

54. C Wilson The Incidence of Crime Victimization among Intellectually Disabled Adults (Final Report, National Police Research Unit, South Australia, 1990). This study found that people with an intellectual disability were twice as likely as people without this disability to be victims of a personal crime (eg assault). They were also one and a half times more likely to be victims of a property offence (eg theft).

55. For an overview of Australian and overseas studies of prevalence of victimisation of people with an intellectual disability, see Appendix B, Table 3.

56. K Johnson, R Andrew and V Topp Silent Victims: A Study of People with Intellectual Disabilities as Victims of Crime (Office of the Public Advocate, Victoria, 1988). In Victoria, 19 agencies agreed to monitor (during the last quarter of 1987) their cases of alleged crime against people with an intellectual disability. The agencies included government and non-government organisations. Though the study stated that the data should be treated as tentative for a number of reasons, the survey revealed that the overwhelming majority of alleged crimes reported to agencies during the study period involved sexual offences: at Appendix 4.

57. Wilson at (ii).

58. Johnson, Andrew and Topp at 48.

59. Public Interest Advocacy Centre, cited in the Standing Committee on Social Issues’ Report Juvenile Justice in New South Wales (Parliament of New South Wales, Legislative Council, Standing Committee on Social Issues, Report 4, 1992) at 25.

60. C Wilson and N Brewer “The incidence of crime victimisation of individuals with an intellectual disability” (1992) 27 (2) Australian Psychologist 114.

61. Wilson at (ii).

62. D Sobsey and T Doe “Patterns of sexual abuse and assault” (1991) 9 (3) Sexuality and Disability 243 at 255.

63. Examples include the elderly invalid pensioner who allegedly gave away his home to a young woman who had promised to look after him, but instead, allegedly verbally and physically abused him and then threw him out (see The Sydney Morning Herald (29 March 1993) at 1); the robbery and bashing to death of a pensioner who had lived in constant fear of a violent death after schoolyard experiences of taunts and bashings (see The Sydney Morning Herald (21 April 1994) at 2); and stories alleging abuse in institutions, hostels and boarding houses feature frequently, especially involving staff members.

64. Johnson, Andrew and Topp at 25-27.

65. Intellectual Disability Rights Service Submission (16 October 1992) at 4-5.

66. Recent reports include the New South Wales Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (1988); the Youth Justice Coalition (NSW) Kids in Justice: A Blueprint for the 90s (1990); the New South Wales Legislative Council’s Standing Committee on Social Issues Juvenile Justice in New South Wales (Report 4, 1992), Juvenile Justice Advisory Council of New South Wales Future Directions for Juvenile Justice in New South Wales (Green Paper, 1993); and Breaking the Crime Cycle: New Directions for Juvenile Justice in New South Wales (New South Wales Government White Paper, August 1994). See also New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues (Discussion Paper 35, 1994) (“NSWLRC DP 35”) at paras 13.3-13.8.

67. Royal Commission into Aboriginal Deaths in Custody National Report (AGPS, Canberra, 1991). See also NSWLRC DP 35 at paras 13.9-13.12.

68. NSWLRC RR 5 at ix.

69. NSWLRC DP 35 at para 13.11.

70. Human Rights and Equal Opportunity Commission Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness (AGPS, 1993) (the “Burdekin Report”), Ch 21.

71. NSWLRC DP 35 at paras 13.13-13.15.

72. NSWLRC RR 4 at paras 1.36-1.43.

73. See, for example, R Snashall (ed) Pre-Trial Diversion for Adult Offenders (Australian Institute of Criminology, Seminar Proceedings 10, 1985); and New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Policing Issues (Discussion Paper 29, 1993) (“NSWLRC DP 29”), Ch 7.

74. For example, Mr M Porter Submission (27 October 1993); New South Wales Council for Intellectual Disability Submission (16 December 1993) at 5; Office of the Director of Public Prosecutions, New South Wales Submission (7 February 1994) at 2; Legal Aid Commission of New South Wales Submission (2 February 1994) at 2; and Office of the Public Guardian, New South Wales Submission (1 March 1995) at 3.

75. L M Osman Finding New Ways: A Review of Services to the Person with Intellectual Disability in the Victorian Criminal Justice System (Office of the Public Advocate, Victoria, 1988) at 19.

76. New South Wales - Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 12.

77. Australia - Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 2-3.

78. Legal Aid Commission of New South Wales Submission (24 July 1992) at 3.

79. S Hayes “Prosecutorial discretion and mentally abnormal offenders” in I Potas (ed) Prosecutorial Discretion (Australian Institute of Criminology, Seminar Proceedings 6, Canberra, 1984) 191 at 195.

80. A M Gleeson in Keeping the Peace, Police Accountability and Oversight, RIPAA/ NSW Office of the Ombudsman, A National Conference (Nikko Hotel, Potts Point, Sydney, 20-21 May 1993) at 4. See also D Lane “The Victoria Police Shopstealing Warning Programme as alternative dispute resolution” (August 1992) 3 (3) Australian Dispute Resolution Journal 151-166; and D O’Connor “Legal aspects of pre-trial diversion schemes” in Snashall at 35-40.