SAMPLE CHARACTERISTICS

3.1 A total of 120 persons participated in the study. Full data sets for all sections of the survey instrument were not available for all participants, for a number of reasons:

(a) participants were sometimes interrupted part way through the procedure, either to have a conference with their lawyer, or to be called into court. Although they were requested to return to the researcher and complete the survey form, not all did so;

(b) according to the research officers at Wagga, privacy considerations prevented the verbal administration of the MSE because the foyer of the court was small and crowded, and participants’ responses could be easily overheard. Prior arrangements had been made to use the legal profession room, a short distance from the foyer, but this proved not to be possible;

(c) some participants agreed to complete certain sections of the survey form, but not others.

3.2 The sections were completed by the following numbers of participants:

	N
Background information	112
K-BIT Matrices	113
MSE (Mini-Mental State Examination)	84

(Interviewer’s notes were not expected to be completed for all participants.)

Throughout the report, the people who participated in the sample are referred to by the terms participants, respondents, or subjects.

CORRELATIONS BETWEEN SECTIONS OF THE SURVEY INSTRUMENT

3.3 The standard score (SS) obtained on the K-BIT correlated significantly with the MSE results (r=0.51, p<0.000). This finding has two important implications. First, there is significant agreement between the K-BIT SS and the MSE, that is, to a large degree they are assessing similar qualities. Secondly, the overlap between the two is not total. Seventy-five per cent of the variance is accounted for by other variables which might include English ability (the MSE relies to a major extent on English, and cannot be entirely translated whereas the K-BIT requires no specific language), stress and anxiety, or mental illness.

3.4 The sub-sections of the MSE correlated with the K-BIT SS to the following extent:

MSE sub-section	K-BIT SS
Orientation	.0090
Location	-.032
Registration	-.072
Serial sevens	.484**
Backwards spelling	.495**
Three stage command	.134

(1-tailed test of significance, ** p<0.001)

3.5 These results indicate that the sub-sections of the MSE most reliant upon cognitive processes such as literacy and numeracy correlate most highly with the K-BIT. The sub-sections which are more reliant on daily living skills, awareness and memory do not correlate with the K-BIT.

DEMOGRAPHIC CHARACTERISTICS OF THE SAMPLE

(a) Gender

3.6 The sample consisted of 94 males (78.9 per cent) and 25 females (21 per cent): one case missing this data. New South Wales local court statistics for 1991 indicate that 14.4 per cent of persons found guilty were women, but there is no information about the proportion of women appearing before New South Wales local courts.¹ The proportion of females in this court sample is four times that in the Australian prison population.² The differences in proportion may reflect the findings (reported in Chapter 1) that females receive more lenient sentences than males, and are less likely to be imprisoned.

(b) Ethnicity

3.7 Four participants (3 per cent) indicated that they were Aboriginal, and a further four indicated they were Islander (3 per cent). This appears to be an under-representation compared with other available (although not directly comparable) data which indicate that 28 to 29 per cent of persons in police custody and 14 to 15 per cent of prisoners throughout Australia are Aboriginal.³ This is perhaps a result of the low participation rate in Dubbo where a high rate of Aborigines charged with offences might have been anticipated. One Aboriginal person participated at Dubbo, one Aboriginal and two Islanders at Liverpool, two Aboriginal and two Islanders at Newtown, and none from either category at Wagga.

3.8 Seventy-two per cent of the sample indicated that they were born in Australia. Thus it appears that the 28 per cent of persons not born in Australia in this sample is an over-representation compared with 20 per cent of the general Australian and New South Wales populations.⁴ Of those not born in Australia, the most frequently mentioned nationalities were Vietnamese (N=6) and Lebanese (N=3). Other countries of origin mentioned included the following: Yugoslavia, Romania, Poland, Laos, Austria, England, Egypt, Tonga, Turkey, Western Samoa, Portugal, Bolivia, New Zealand, USA and Hungary. The New South Wales Year Book 1990 indicates that most overseas born people are from Europe (61 per cent) and Asia (22 per cent), with the predominant countries of origin being the United Kingdom and Ireland, New Zealand, Italy, Yugoslavia, Greece and Lebanon.⁵ There is no information concerning country of origin of persons appearing before New South Wales local courts.

(c) Education

3.9 Only 12 per cent of the sample had finished Year 12 at High School. A cumulative percentage of 81 per cent had completed Year 10, as shown in Table 1.

Table 1: Highest grade completed

Table 2: Number of schools attended

No. of schools	Frequency	Cumulative percentage
No school	1	1
1	19	18
2	37	51
3	18	68
4	14	80
5 or more	22	100
	N = 111

3.11 Those who indicated that they only attended one school could fall into several categories:

(a) those attending a private school offering both preparatory and secondary levels - possibly fairly rare in this sample;

(b) those who attended a special school which was ungraded in terms of primary and secondary differentiation;

(c) those who attended only primary or only secondary school, and had in addition either informal education or correspondence courses; and

(d) those who attended one school and received some further education in juvenile institutions, or no further education.

3.12 At the other end of the scale, 20 per cent attended five or more schools, the largest number recorded being 20 schools (N=1 in the 80-89 SS category).

3.13 Ten per cent (N=12) of the sample indicated that they had attended a special school or class, with 4 per cent (N=4) indicating participation in an OA or OF class (specialist classes for students with an intellectual disability in the NSW education system).

(d) Employment

3.14 Unemployed people were over-represented in the sample compared with the general population, with 58 per cent (N=64) stating that they were unemployed. In December 1992, 11.4 per cent of the New South Wales population were unemployed (using the Australian Bureau of Statistics definition of unemployment).⁶ Seventy-six per cent of the unemployed were male and 24 per cent female, reflecting the M:F ratio of the sample. Of the 42 per cent who were employed, Table 3 shows the most frequently mentioned occupations. The over-representation of unemployed people in this survey may partly be owing to a loose use of the term, for example, a person who was on another pension or benefit may describe themselves as unemployed, as might a person who was being supported by their spouse or partner and who was not actively looking for work. Nevertheless, given the research findings (see Chapter 1) that people who are in paid employment are more likely to receive lenient sentences, this figure of 58 per cent indicates that a majority of people appearing before local courts may be at a disadvantage.

Table 3: Employment

Ranking order of accupations by workforce sector	N	Percentage
Unemployed	64	58.2
Level 3.9, eg profession model	3	2.7
Level 4.4, eg senior clerk level	3	2.7
Level 4.5, eg electrician; stenographer	3	2.7
Leve 4.6, eg insurance agent; home duties	4	3.6
Level 4.7, eg mechanic; Bar manager	3	2.7
Level 4.8, eg hairdresser; fitter	5	4.5
Level 5.2, eg butcher; bricklayer; telephonist	4	3.6
Lever 5.6, eg junior clerk; bus driver	4	3.6
Level 6, eg process worker; labourer	4	3.6
Other (not specified)	13	11.8
	N = 110	99.7

[Link to text only version of table]

3.15 Of those who were employed, 37 (80 per cent) were in full-time employment and 9 (20 per cent) part-time. None of those specifying their occupation belonged to professional or semi-professional categories.

(e) Social Security

3.16 A total of 67 (57 per cent) of respondents stated that they currently received a pension or benefit as shown in Table 4. The results indicate that some social security recipients were also employed.

3.18 These results have important implications given the results of previous studies (see Chapter 1) which indicate that magistrates are likely to be less lenient with unemployed people or those in receipt of welfare benefits.

(f) Age

3.19 The following Table 5 shows the age range of the sample.

Table 5: Age range

[Link to text only version of table]

3.20 It can be seen that this sample is slightly over-represented in the 18 years or less age group, and in the 40-49 group, and under-represented in the 25-29 age range. Chi-square analysis found the differences to be significant at p<0.02; thus, this sample is not representative of lower court appearances in terms of age, although it is not consistently skewed in one direction or another.

OFFENCES

3.21 Most of the sample stated that they were at court on the day because they were charged with an offence (84 per cent, N=97), and 48 per cent (N=50) were charged with more than one offence (mostly two or three offences, but the highest number recorded was 12). Those who indicated that they were not at court because of being charged were there for other reasons related to criminal behaviour or charges, such as breach of bail. Juvenile offenders and family law matters were excluded from the study, as were witnesses.

3.22 Table 6 shows the most serious charge reported by participants, categorised according to standard offence code categories.⁸

Table 6: Offence category of most serious charge

(*See NSW Bureau of Crime Statistics and Research New South Wales Criminal Courts Statistics 1991, Table 1, for NSW local court statistics.)

3.23 The most frequent single charge was “other assault” (14 per cent of the respondents), which was the second most frequent charge in local courts in 1991 (10 per cent of persons charged).⁹ Persons were most frequently charged in New South Wales local courts in 1991 with "other driving" (10.9 per cent).

3.24 These results indicate that the sample was over-representative of the charges of offences against the person and drug offences, and under-representative of motor vehicle and driving offences. Nevertheless, the sample was not markedly skewed away from the overall distribution of offences in 1990 in New South Wales lower courts, there being a congruence in the pattern of distribution of offences. Some of the differences may occur as a result of the fact that this study refers to the most serious charge whereas the New South Wales Bureau of Crime Statistics report includes all charges, so that one person may have several charges recorded. The pattern of charges often consists of a serious charge and several less serious charges based on the same set of facts, in case the most serious charge cannot be proven. No statistically significant differences were found. Other research has shown that intellectually disabled persons more frequently are convicted of offences against the person.¹⁰

3.25 The survey form allowed for the most serious charge and up to three other charges to be specified by participants. The only alteration to the general picture was that five respondents (11 per cent) recorded being charged with possess and/or use drugs, an offence which did not appear on the most serious charge list, although deal and traffic in drugs appeared as a most serious charge.

3.26 Seventy participants (63 per cent) indicated a history of previous offences. Table 7 shows the number of previous offences stated.

Table 7: Number of previous offences

LEGAL REPRESENTATION

3.27 A total of 33 (30 per cent) of participants indicated that they did not have a lawyer; 58 (52 per cent) had Legal Aid representation; and 20 (18 per cent) had a private solicitor. This is very similar to the overall pattern in New South Wales local courts, where 31.5 per cent of persons charged are known to be not represented by a lawyer.¹¹

3.28 These findings have important implications for outcome, based on the research reported in Chapter 1 indicating more positive results for those accused persons who have legal representation.

PERFORMANCE ON THE K-BIT

3.29 Table 8 shows the numbers of respondents falling into different standard score categories on the K-BIT.

Table 8: K-BIT standard scores

3.30 The results show that 14.2 per cent of the sample (N=16) had a SS which was two standard deviations below the mean, that is, below a score of 70. This group would normally be regarded as falling into the intellectually disabled range. A further 8.8 per cent fell between 70 and 79, regarded as borderline. Thus, a total of 23 per cent, nearly one in four respondents in the sample, have results indicating serious deficits in intellectual ability.

3.31 Social and adaptive skills were not assessed, owing to lack of time and privacy considerations, as well as the possibility of poor reliability (owing to a tendency towards unreliability using even the best social and adaptive skills tests). Inclusion of assessment of social and adaptive skills may have indicated that some of the borderline group should definitely be regarded as mildly intellectually disabled, using a two-pronged definition, as discussed in Chapter 1.

3.32 Tables 9 and 10 explore the lower end of the spectrum and show the distribution of scores below a standard score of 80; and the distribution of percentile ranks below ten.

(*Cumulative percentage refers to the total sample.)

Table 10: Distribution of percentile ranks 10 and below

3.33 The seriousness of the cognitive deficits experienced by these low-functioning respondents is indicated by the fact that falling at or below a percentile rank (PR) of 10 means that 90 per cent of the general population is functioning better than these individuals.

3.34 The mean standard score for the total sample was 90, with a standard deviation of 18.5. The mean PR was 37.7 with a standard deviation of 25.6, a minimum score of less than one and a maximum score of 79.

3.35 These results indicate that overall the total sample is functioning lower than the general population. By definition the mean standard score in the general population is 100, and a rank of 50 is average.

3.36 None of the Aboriginal participants fell below a standard score of 90, whilst three of the Islanders were in the <70 standard score range. The numbers are too small to allow further analyses. Nevertheless, these results are at variance with previous research which shows that Aboriginal/Islander prisoners have a higher rate of intellectual disability, and social and adaptive deficits, compared with non-Aboriginal Australians.¹²

3.38 There were no significant differences in the proportion of males and females in the various standard score categories; nor were there significant differences in the number of previous offences.

3.39 The difficulty in recognition of an accused person with an intellectual disability is demonstrated by the fact that eight of those with standard score <70 and four with standard score 70-79 were classified as “ID definitely not present” by the researchers. The accuracy at the other end of the scale is greater - no respondent with a standard score of 80+ was classified as being intellectually disabled by the researchers. Seventy-three per cent (11/15) of those with a standard score of <70 also obtained a score of <22 on the MSE.

3.40 Researchers’ notes on respondents with a standard score of <70 included the following:

• “Apprehensive and nervous.”
• “Suspect brain damage due to alcohol.”
• “Preoccupied with 16 year old son in detention centre.”
• “Liver damage due to alcoholic condition.”
• “Difficulty in English.”
• “Brain damage due to motor vehicle accident.”
• “Slightly confused, middle class appearance, polite, friendly.”
• “Preoccupied with court appearance.”

3.41 Discriminant analyses were performed in an attempt to find variables which discriminated between those with SS<70 and those with SS 100+. No variables were found which distinguished between the two groups, although this may have been owing to the fact that there were few continuous variables which could be introduced into the analyses.

MINI-MENTAL STATE EXAMINATION (MSE)

3.42 Table 12 shows the proportion of the sample falling into the various categories on the MSE, with those below 22 being regarded as possibly having an abnormality and needing further assessment. The mean score was 22.5.

Table 12: MSE Categories

3.44 Table 13 shows the proportion of males and females falling above and below the cut off mark (categories below 21 have been combined to avoid small cell sizes.)

Table 13: MSE and Gender

(No significant differences were found.)

3.45 Only one respondent in the Aboriginal/Islander category fell below 22 on the MSE.

3.46 Analyses of the MSE and other variables such as age, most serious offence, and previous offences were undertaken but have not been included herein because

(a) the MSE is a much more subjective score than the K-BIT SS;

(b) the categories of mental abnormality which may be subsumed under a low MSE score are wide and could encompass temporary states of anxiety, English language disability, psychiatric illness, behaviour abnormality and intellectual disability; and

(c) no significant findings emerged.

3.47 Some of the researchers’ comments illustrate the variety of conditions:

• “Some difficulty reading, needed verbal direction, confused.”
• “Anxious, tremors, agitation.”
• “Dyslexic and illiterate.”
• “Could have been mildly under the influence of a drug.”
• “Illiterate.”
• “Requires mental health assessment and follow-up.”
• “Depressed.”
• “Stress, anxiety, suspicious of everyone.”

3.48 There were no significant differences when MSE score categories were analysed by other variables including sex, aboriginality, number of schools, or number of offences.

3.49 Of the 26 respondents with MSE score of <22, 21 had SS results below 79 (10 were in the <70 range). Thus, the MSE identified all of the respondents in the SS 70-79 range, but only 11 out of the 16 in the <70 range.

3.50 Given the small numbers in these groups, too much emphasis should not be placed on the fact that the MSE was not successful in identifying 31% of the SS <70 group. There are a number of possible explanations.

(a) administration of the K-BIT was more standard than administration of the MSE, with the latter being more reliant upon interpersonal rapport between subject and researcher; scoring of the K-BIT is also more standardised;

(b) some of the SS<70 group may be “test-wise” owing to having undertaken many intelligence tests and mental state examinations;

(c) chance may play a part.

3.51 The MSE “identified” as in need of further assessment five subjects who scored in the normal SS range on the K-BIT. This indicates that the MSE is identifying some other mental abnormality factors, apart from cognitive deficits.

FOOTNOTES

1. NSW Bureau of Crime Statistics and Research New South Wales Criminal Courts Statistics 1991 (Attorney General’s Department, 1991).

2. J Walker Australian Prisoners 1990 (Australian Institute of Criminology, 1991) at 16.

3. D Biles, Deputy Director, Australian Institute of Criminology (personal communication, December 1992).

4. J Powles and S Gifford “How healthy are Australia’s immigrants?” in J Reid and P Trompf (eds) The Health of Immigrant Australia - A Social Perspective (Harcourt Brace Jovanovich, Sydney, 1990) at 77-107; New South Wales Year Book 1990 (No 72, Australian Bureau of Statistics, Sydney, 1990).

5. New South Wales Year Book 1990 at 37.

6. New South Wales Department of Industrial Relations, Training and Further Education, Policy Unit (personal communication, 19 February 1993). The Australian Bureau of Statistics definition includes people aged 15 years or over who were not employed and who had actively looked for work in the reference week, or who were available for work, or who were waiting to commence or recommence in employment.

7. S Hayes and D McIlwain The Prevalence of Intellectual Disability in the NSW Prison Population: An Empirical Study (Report to the Criminology Research Council, Canberra, 1988).

8. I Castles Australian National Classification of Offences (Australian Bureau of Statistics, 1986).

9. NSW Bureau of Crime Statistics and Research (1991) Table 1 at 8-9.

10. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992).

11. NSW Bureau of Crime Statistics and Research (1991) Table 4 at 12.

12. Hayes and McIlwain (1988).