INTRODUCTION
1.1 This report summarises results of a follow up study of people appearing before two local courts in New South Wales. The first study was reported in Research Report 4 (RR 4).1 RR 4 describes the reasons for the comparatively recent interest in the philosophical, criminological, ethical and pragmatic issues associated with the apparent over-representation of people with intellectual disability in the criminal justice system in many jurisdictions both within and outside Australia.
1.2 Readers are referred to RR 4 for material on definitions of intellectual disability; discussion of research on the prevalence and incidence of intellectual disability amongst persons charged with offences; reference to previous court cohort studies; discussion of the role of local courts; characteristics of female accused persons in particular; and information on the recognition of the person with intellectual disability in the criminal justice system, including discussion of the importance of legal representation.
1.3 In summary, there is strong evidence that persons with intellectual disability are over-represented in the prison population, and in the population of people appearing before local courts in New South Wales. The over-representation which occurs in the prison population has been found in many other Western jurisdictions, and in other Australian states. Variations in prevalence rates occur, owing to differences in police practices, sentencing practices, and the availability of alternative forms of disposition for an accused or sentenced person with intellectual disability. Female prisoners with intellectual disability appear to be more likely than males to have a dual diagnosis, that is, intellectual disability accompanied by a second mental abnormality which might include a psychiatric diagnosis, a behaviour problem or some other disability.
1.4 RR 4 established that the over-representation of prisoners with intellectual disability does not appear to occur as a result of harsher sentencing of this group because there is no major difference between the numbers appearing before local courts and those in prison. In RR 4, however, there was an insufficient number of subjects who were Aboriginal or Islander, and one of the objects of the present study was to target this sub-population in order to investigate further the characteristics of this group in the local court system.
ABORIGINES IN THE CRIMINAL JUSTICE SYSTEM
(a) Over-representation of Aborigines
1.5 Since the civil rights movement in The United States of America in the 1960s, attention has been increasingly focussed upon the disadvantaged position of black minority groups in the criminal justice systems of white dominated societies. More recently research interest in this phenomenon has been apparent in Great Britain.2 Australian Aborigines are essentially different from black populations in the United States of America and Britain because Aborigines were the original inhabitants, not immigrant populations, and are thus more similar to indigenous people in South Africa, the United States, Canada and New Zealand. The fact that Aborigines are the original occupants of the land does not seem to have provided them with any advantage - Aborigines have been described as “if not the most incarcerated people in the world, then at least second to no other”.3 The 1986 population census conducted by the Australian Bureau of Statistics indicates that Aboriginal people (including Torres Strait Islanders) formed 1.46% of the total population, whereas 14.6% of all Australian prisoners were Aboriginal, an over-representation of exactly ten times.4 South Australia and Western Australia have the highest rates of over-representation whereas Tasmania and the Northern Territory have the lowest.5
1.6 Aboriginal young people are even more strongly over-represented than adults in the criminal justice system in Australia, including in prison. This process commences at an early stage. In South Australia, 1.2 per cent of the general youth population is Aboriginal, yet in 1985-86, 7.4 per cent of all police apprehensions of young people were of Aborigines.6 In Western Australia, which has the highest rate of imprisonment of juveniles in Australia, 76 per cent of youths placed in custody are Aboriginal and the level of over-representation of Aboriginal youth increases with the severity of the charges. Similar over-representation has been found in other States for both corrective and welfare institutions, although the data may underestimate the actual figures because Aboriginality is not always a factor which is identified in statistics for juveniles.7 A comprehensive study of Aboriginal young people in the juvenile justice system8 suggests that this group are disadvantaged at every point in the criminal justice system. Not only are Aboriginal young people present in the juvenile justice system in greater numbers than non-Aborigines, they are more likely to receive harsh treatment. An example is the fact that they are twice as likely to be arrested rather than summonsed. Furthermore, the option for diversion to a Children’s Aid Panel in South Australia is differentially used, with Aboriginal youths being far less likely to receive the lenient option compared with non-Aborigines. Aboriginal young people are significantly more likely to receive a custodial sentence in a youth training centre rather than a non-custodial sentence. The harsher treatment at every step of the criminal justice process results in Aboriginal youth becoming more and more over-represented as they proceed through the system so that at the end they are more than 20 times more likely to receive a custodial sentence.
1.7 In 1994 over 26 per cent of the New South Wales juvenile justice centre population was Aboriginal, compared with 1.7 per cent of the New South Wales youth population (zero to 24 years of age).9 Four out of five (81.5 per cent) of Aboriginal juveniles on a control order had 10 or more prior proven offences, and only one on remand had no prior proven offences. This group had the highest level of previous incarcerations of any juvenile group. The offence for which they are currently in custody is no more serious, however, than for non-Aboriginal youth.
1.8 Amongst adult prisoners there are proportionately more Aboriginal prisoners in the age groups 16 to 19 years and 20 to 24 years, whereas the rate tapers off in older age groups.10 Aborigines may be up to 90 times more likely to be imprisoned in regions where there is a high Aboriginal population.11 Northern Territory has the highest crime rate for murder, assault, rape and burglary, the general imprisonment rate being the highest in Australia (291 per 100,000 inhabitants, compared with the Australian average of 67.8); 70 per cent of prisoners are Aboriginal.12
1.9 One of the few areas in which Aborigines are not disadvantaged is in access to legal aid. In 1982 more than 80 per cent of Aboriginal defendants facing charges requiring more than one hearing and 34 per cent of those having a single appearance before the Court were legally represented, compared with 78 and 27 per cent respectively for other defendants,13 partly as a result of the establishment of the Aboriginal Legal Service.
1.10 Some studies conclude that there does not seem to be strong racial bias within the criminal justice system. The life circumstances of Aboriginal people, including high rates of unemployment and a non-nuclear family or lower status residential situation, and the fact that they were arrested rather than summonsed or diverted from the criminal justice system, are factors which contribute to the harsher decisions during the criminal justice process.14 The single most important factor in determining a negative criminal justice outcome is unemployment, which has a predictive value ten times that of Aboriginality.15 The lesser influence of racial discrimination in explaining over-representation of Aborigines is not accepted by all researchers, however, with other criminologists indicating that according to a power conflict theory, racial discrimination affects employment rates and therefore can still be seen as the basic cause of the high Aboriginal criminality.16 Aboriginal prisoners are nearly twice as likely as non-Aborigines to be unemployed at the time of reception into prison.17 The poor economic circumstances of many Aborigines, referred to above in relation to unemployment, are also related to substandard housing, poor education, inadequate health care including psychiatric services, poor hygiene and nutrition. Poverty alone does not cause criminal behaviour, but the relationship between social disadvantage and crime cannot be ignored.
1.11 Other explanations have been put forward for the high rate of Aboriginals in the criminal justice system. One theory is that the high crime rate is a statistical artefact resulting from the high social visibility of Aborigines, which in turn leads to a selective perception of their involvement in crime.18
(b) Types of offences
1.12 While it may be commonly assumed that Aborigines are imprisoned for fairly trivial offences including public drunkenness or offensive behaviour, there is little evidence to support this.19 The percentage of Aboriginal and non-Aboriginal male prisoners charged with homicide is similar, whilst Aboriginal women are more likely to be charged with homicide than their non-Aboriginal counterparts. Furthermore, there is an over-representation of Aboriginal men and women imprisoned for assault. Aboriginal prisoners tend to be over-represented in the broad category of offences against the person and also for break and enter, breach of bail and other justice procedure offences and traffic offences, but less likely to be in prison for drug offences or robbery.
(c) Aboriginal women
1.13 The proportion of Aboriginal women compared with non-Aborigines being imprisoned is increasing, and already the ratio for women is higher than that for men (16.3 per cent of the total female prison population consists of Aboriginal women compared with 14.1 per cent of Aboriginal men in the male prisoner population).20 The most frequent offences committed are non-payment of fines and social security fraud, data which may be linked to the figures which show that Aboriginal women are the least employed and lowest socioeconomic group in Australia.21 There are important differences between regions. In local government areas where there is a high proportion of Aboriginal residents, the reported rate of delinquency among girls is four times that of other rural regions of New South Wales and three times that of metropolitan regions.22 This may occur in part because of over-policing of Aboriginal communities by the police service as well as child welfare and juvenile justice agencies, which occurs in part as a response to the over-commission of offences, but also because of institutionalised racism which perceives pathology and deviance in Aboriginal homes and communities on the basis that they may not necessarily function like white communities and families.
LEGAL REPRESENTATION
1.14 New South Wales local court statistics23 indicate that 37.7 per cent of persons charged in local court appearances where the outcome was finalised in 1994 were not legally represented. Those without legal representation were less likely to have all charges dismissed at a defended hearing, and more likely to be found guilty of at least one charge, either at a defended hearing or ex parte. RR 4 referred to the findings that identification of intellectual disability is most likely to be made by the accused’s lawyer, in 56.8 per cent of cases.24 Therefore, those persons who are not represented lose a major opportunity for their intellectual disability (where it is relevant) to be brought to the attention of the court.
1.15 A study in 1987 of the relationship between legal representation and outcome in Victorian magistrates’ courts found that legal representation makes a difference. After controlling for legally relevant variables, legal representation was found to be strongly related to concessionary withdrawals, the type of plea, the verdict, and the verdict in contested cases.25 A 1973 Australian study found that the accused with legal representation had a higher chance of securing an acquittal, was less likely to be sent to prison if not acquitted, and was more likely to be found not guilty,26 although these results were subsequently disputed.27 Patterns of legal representation, and of decisions to prosecute have changed significantly in Australia in the past 20 years, especially with the introduction of legal aid. For the accused with an intellectual disability, legal representation may not necessarily mean the difference beween an acquittal or a guilty verdict, but more importantly may offer an opportunity to put before the court relevant information regarding the disability.
SUMMARY
1.16 Previous research has demonstrated that people with intellectual disability are over-represented both in the prison population, and the cohort of persons appearing before local courts in New South Wales. The over-representation in the prison population has been demonstrated in other jurisdictions both within Australia and elsewhere. No other recent court cohort studies have been located, however, and so the issue of whether over-representation amongst court appearances in other jurisdictions remains unknown.
1.17 A UK study of suspects being interviewed by police found that 9 per cent of the sample had an IQ score below 70 and a further 42 per cent had an IQ scores between 70 and 79, that is, in the borderline range. On the basis of a brief clinical interview, 35 per cent of subjects were assessed as being not in a normal mental state, owing to extreme distress or mental disorder, or drug intoxication. Only three per cent of suspects were judged subjectively by researchers as being intellectually disabled, indicating the difficulty of identifying the condition.28 The researchers outline three reasons why it is difficult to identify people with intellectual disability - first, many such persons may have reasonable social functioning and therefore may appear non-disabled; secondly, they may view their disability as a private matter, and may not wish to disclose it to police; and thirdly, even when social functioning is significantly impaired, this may not be easy to assess during a brief encounter.
1.18 No research into the prevalence of intellectual disability amongst suspects questioned by police has been located in Australia. The UK research indicates, however, that over-representation appears to occur at the police questioning stage, which may in turn indicate that people with intellectual disability are not necessarily suffering harsher treatment in subsequent stages of the criminal justice system, but are in fact more frequently coming into contact with the criminal justice system. This conclusion is borne out by a Swedish birth cohort study which indicates the complexity of the factors contributing to this over-representation. The study, which followed subjects from birth up to the age of 30, found that men with an intellectual disability were three times more likely to offend than non-disabled men, and five times more likely to commit a violent offence. Women with an intellectual disability were almost four times more likely to offend than their non-disabled peers, and 25 times more likely to commit a violent offence.29 In over half of the subjects, the criminal behaviour appeared before the age of 18 years. These findings indicate that it is not necessarily or solely discrimination within the criminal justice system which contributes to the extent of over-representation, but rather, aspects of the lifestyle, characteristics and environment of the person with intellectual disability which increase the likelihood that they will engage in behaviours which will bring them to the attention of the criminal justice system. There is no doubt that their career in the criminal justice system is frequently marked by misunderstanding and mishandling by police, professionals and the judiciary, but this is the end point of a process of alienation, under-resourcing, and ineffective service delivery on the part of other institutions in society, including the health system, specialist intellectual disability services (particularly those which are responsible for addressing behaviour problems), schools, welfare services, vocational preparation agencies, and residential services.
1.19 The purpose of this study is to examine further the question of whether people with an intellectual disability are over-represented in the cohort of accused persons appearing before New South Wales local courts, and specifically to obtain a sample with Aboriginal people in sufficient numbers to enable statistical analyses to be undertaken on this sub-population.
FOOTNOTES
1. New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993).
2. F Gale, R Bailey-Harris and J Wundersitz Aboriginal Youth and the Criminal Justice System. The Injustice of Justice? (Cambridge University Press, Melbourne, 1990).
3. W Clifford Aboriginal Criminological Research: Report of a Workshop Held 3-4 March 1981 (Australian Institute of Criminology, Canberra, 1981).
4. D Biles “Aboriginal Imprisonment - A Statistical Analysis” in D Biles and D McDonald (eds) Deaths in Custody Australia, 1980-1989 (Australian Institute of Criminology, Canberra, 1992) 85-105.
5. Biles (1992).
6. J Wundersitz, R Bailey-Harris and F Gale “Aboriginal Youth and Juvenile Justice in South Australia” Aboriginal Law Bulletin 1990; 2(44): 12-14; Gale, Bailey-Harris and Wundersitz (1990).
7. N D’Souza “Aboriginal Children and the Juvenile Justice System” Aboriginal Law Bulletin 1990; 2(44): 4-5.
8. Gale, Bailey-Harris and Wundersitz (1990); Wundersitz, Bailey-Harris and Gale (1990).
9. M Cain Juveniles in Detention: Issues of Over-representation (NSW Department of Juvenile Justice, Sydney, 1995).
10. Biles (1992).
11. Australian Institute of Criminology, National Prison Census June 30 1989 (Australian Institute of Criminology, Canberra, 1990).
12. H J Schneider “Life in a Societal No-Man’s Land: Aboriginal Crime in Central Australia” International J Offender Therapy and Comparative Criminology 1992; 36(1): 5-19.
13. A Sutton “Crime Statistics Relating to Aboriginal People in South Australia” in B Swanton (ed) Aborigines and Criminal Justice (Australian Institute of Criminology, Canberra, 1984).
14. Wundersitz, Bailey-Harris and Gale (1990).
15. F Gale Aboriginal Youth and the Law: Problems of Equity and Justice for Black Minorities (Australian Studies Centre, University of London, London, 1985).
16. Schneider (1992); see also P R Wilson Black Death - White Hands (Allen and Unwin, Sydney, 1985).
17. Biles (1992).
18. Schneider (1992).
19. Biles (1992).
20. Australian Institute of Criminology (1990).
21. S Payne “Aboriginal Women and the Criminal Justice System” Aboriginal Law Bulletin 1990; 2(46): 9-11.
22. K Carrington “Aboriginal Girls and Juvenile Justice: What Justice? White Justice” Journal of Social Justice Studies 1990; 3: 1-18.
23. NSW Bureau of Crime Statistics and Research New South Wales Criminal Courts Statistics 1994 (Attorney General’s Department, Sydney, 1995).
24. J McAfee and M Gural “Individuals with Mental Retardation and the Criminal Justice System: The View from the State Attorneys-General” Mental Retardation 1988; 6: 5-12.
25. R Douglas “Do Lawyers Make a Difference?” Australian Journal of Social Issues 1987; 22(4): 377-389.
26. T Vinson and R Homel “Legal Representation and Outcome: A Progress Report on the Relation Between Legal Representation and the Findings of Courts of Petty Session Throughout New South Wales” (1973) 47 Australian Law Journal 132 at 133.
27. P Cashman “Representation in Criminal Cases” in J Basten, M Richardson, C Ronalds and G Zdenkowski The Criminal Injustice System (Australian Legal Workers Group (NSW), Sydney, 1982) 195-220.
28. 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).
29. S Hodgins “Mental Disorder, Intellectual Deficiency, and Crime. Evidence from a Birth Cohort” Archives of General Psychiatry 1992; 49(6): 476-483.
