Case StudiesNegotiations with police - Tim
A young adult who was a great fan of the cops and robbers TV genre was picked up by police in a siege-type situation for attempting to hold up the local newsagency with a replica pistol. The person’s behaviour was clearly naive rather than criminal. He was acting out a game based on a favourite TV show rather than acting upon any intention to commit an armed robbery. After an interview with the person’s mother and hearing submissions from IDRS about the effects of the person’s disability, the police exercised their discretion and decided not to lay charges. If charges had been laid, the matter may well have ended up in the District Court.
Darren (18) is a young Aboriginal man who has a mild intellectual disability. He was travelling in a taxi with two others from the youth refuge where he had been residing. Unknown to Darren, two of these young people decided to rob the taxi driver. Darren was present, and was drawn in to the robbery when the others demanded he ask for coins.
Darren did not have a criminal history and was a minor player in a serious offence. There is no doubt that his disability impaired his judgement, and his response to the situation. He was refused bail because of the seriousness of the offence, the strength of the prosecution case, the likely sentence and the fact that he had nowhere to live.
He spent 8 months in an adult jail before he was released by the sentencing judge on a two-year good behaviour bond. His experience in custody was devastating. He was sexually assaulted and spoke about not sleeping during the night in case he wet his bed. He was terrified of the response by other prisoners who might discover this problem. It is our view that Darren’s experience would have been dramatically different if section 32 of the MHFPA applied.
(IDRS thanks the Shopfront Youth Legal Centre for permission to use this case study.)
John was a man in his forties who attended a special school as a young person. His home life was marred by domestic violence. His mother had mental health issues and ultimately left the family after attempting to burn the house down.
John developed substance abuse issues, mental health issues and endured many periods of homelessness. Since turning 18 years of age, he spent short periods in goal for minor offences almost every year up until 2009. He had over 150 entries on his criminal history, all in relation to minor offending behaviour. He had not received any significant support from disability services. IDRS made the first of numerous section 32 applications for John in 2009.
After further charges an application was made for ADHC services. That application was declined, but the client was successfully referred to an NGO who provided a few hours of case management each month. The NGO helped John to successfully apply for public housing in the form of a bedsit. The section 32 application was successful on the basis of support services from the NGO.
Five months later John returned seeking assistance with a goods in custody matter. IDRS lodged an internal appeal of the previous ADHC decision after seeking out additional information to help establish the onset of the client’s disability prior to the age of 18 years. No documents could be located but evidence in the form of social history from the client’s long estranged sister and uncle were submitted in support of the appeal against the original ADHC decision. The appeal was successful.
In the period between the first mention of the matter and when it was ultimately finalised seven months later, the client accrued an additional seven sets of charges, the most serious of which was an assault police charge. He was also the victim of assaults on two occasions and witnessed a violent event during this time. This underlines the high volume of traumatic events often experienced by people who are involved with the criminal justice system and that it is often the same people who are both victims and defendants in criminal matters.
The ADHC Support Plan ultimately developed proposed that the client required 35 hours a week face to face support, along with extensive assistance in almost all adaptive functioning areas. He will receive assistance in many areas, including health care, counselling in anger management and for depression, and training in everyday life skills such as cooking, budgeting and how to use public transport.
Submissions addressed the issue of previous inadequate levels of support and, despite John’s lengthy criminal history and several previous section 32 orders, the Magistrate exercised his discretion and applied the section to all eight sets of charges.
At 17, Anthony was charged with two counts of aggravated indecent assault. Anthony was alleged to have touched his younger sister on the breasts during a game. She was under 16 years of age.
Anthony had been diagnosed as having a mild intellectual disability and autism. He lived in a stable family home with both of his parents. The younger sister told her mother that her brother had touched her during the game. The mother contacted Community Services to seek help for both her children. The Joint Investigative Response Team came to the family home, arrested Anthony and he was refused bail for 15 days.
It was a condition of bail that Anthony not reside in the family home when he was released. After staying with his grandparents for three months, a placement in supported accommodation was found for him by his ADHC case manager.
Psychological assessments revealed that Anthony had received very little sex education. Anthony did not understand inappropriate touching. Anthony was, for the first time, linked with disability services, in particular services specifically aimed at educating persons with intellectual disability about sexuality.
An application was made under section 32 on behalf of Anthony. The matter was adjourned a number of times over a 12-month period to allow Anthony to undertake extensive training, counselling and education in relation to sexuality. Assessments were then provided to the Court that outlined that Anthony had progressed significantly in his understanding. The support plan included continuing intensive counselling. The application was successful.
Ahmed, a young man with intellectual disability was before the court in relation to a shoplift charge. Ahmed’s lawyer indicated to the court that she intended to make a section 32 application and provided a copy of a psychological assessment to the prosecutor.
The prosecutor read the report indicating that Ahmed had a developmental disability but then pointed out to the lawyer that he would not be eligible for a section 32 because developmental disability is not mental illness. He was not aware of the availability of section 32 for people with developmental disability.
The magistrate was more familiar with the section, cleared up the misapprehension and granted the application. The availability of section 32 for people with intellectual disability is less widely understood that for mental illness.
Domingo was charged with a breach of an apprehended violence order.
On the first court date, the lawyer obtained an adjournment to allow information to be obtained from Domingo’s ADHC case worker. On the second court date, another lawyer asked Domingo whether the first lawyer had recommended he plead guilty or not guilty. Unfortunately Domingo could not remember. The support person raised the possibility of a section 32 application but the lawyer decided Domingo should plead not guilty and adjournment was granted.
On the third court date, yet another lawyer appeared and decided a section 32 was the best way to proceed and again adjourned the matter for reports. On the fourth occasion, Domingo’s matter was finalised by way of section 32 by the fourth lawyer.
The delays for Domingo could have been substantially reduced if he had continuity of representation.
Francesca is a young adult with intellectual disability and acquired brain injury. She is anxious about lifts and loud noises. She lives with her parents and is very reliant on them. She has certain obsessive compulsive traits such as washing her hands repeatedly and making repeated calls to emergency services when stressed or anxious.
Francesa’s parents decided to leave her with a respite carer in the family home while they attended a family wedding in Perth. Francesca would not have coped well with an unfamiliar environment and her parents needed a break.
Francesca was upset about her parents’ departure and became highly anxious. The home phone was generally kept locked because of Francesca’s history. The respite carer did not stick to the plan about the telephone and Francesca used the phone to make several false reports to emergency services including one to the fire brigade about her neighbour’s house being on fire.
In addition to being charged in relation to the nuisance calls, Francesca was also charged with three counts of assaulting police.
Submissions in support of the application focused on the link between Francesca’s disability and the charges, the subjective circumstances of Francesca and her family, the potential adverse effects of incarceration, an explanation of the phone protocol and further assistance for the family from ADHC with behaviour management strategies. The application was successful.
To Section 32 or Not?
To Section 32 or Not? Applications Pursuant to Section 32 Mental Health (Forensic Provisions) Act 1990 in the Local Court – by Karen Weeks, published in the May 2010 Law Society Journal.
Further reading: Papers on Section 32 Applications by Karen Weeks
All about Section 32 – Mental Health (Criminal Procedure) Act 1900 (As Amended)
This is a paper delivered at the ALS State Conference in August 2007 by Robert Tumeth, a solicitor at Aboriginal Legal Service (NSW/ACT) Ltd
This paper is published with the author’s permission and all rights are held by the author, Robert Tumeth.
You can contact the author firstname.lastname@example.org
Justice System – Clients with intellectual disability in the criminal justice system
People with intellectual disability make up around 2 to 3 per cent of the community. Research shows that adults and children with intellectual disability are overrepresented at all stages of the criminal justice system.
The 2009 Health Survey of Young People in Custody found that 14 per cent of young people in custody have intellectual disability (IQ below 70) and 45.8 per cent of young people in custody are assessed as having borderline intellectual functioning or below.
Further, one in five Aboriginal young people in custody have intellectual disability. (See www.djj.nsw.gov.au/publication.htm#healthsurveys for full report.)