SUBMISSION TO THE PARLIAMENT OF VICTORIA LAW
REFORM COMMITTEE
INQUIRY INTO ACCESS TO AND INTERACTION WITH THE JUSTICE
SYSTEM BY PEOPLE WITH AN INTELLECTUAL DISABILITY AND THEIR
FAMILIES AND CARERS
November 2011
Victoria Legal Aid
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Victoria Legal Aid – Submission to Law Reform Committee – November 2011
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ABOUT VICTORIA LEGAL AID
Victoria Legal Aid (VLA) has a mandate to provide improved access to justice and legal remedies in
Victoria, particularly for marginalised or disadvantaged people, including people with intellectual
disabilities and their supporters. VLA’s Strategic Plan 2011-14 identifies clients with intellectual
disabilities as a priority when delivering legal services, and we work closely with a range of
specialised services to help meet the legal needs of people with intellectual disabilities.
VLA assists people with their legal problems at locations such as courts, prisons, and psychiatric
hospitals as well as in our 15 offices across Victoria. We assist more than 80,000 people each year
through Legal Help, our free phone information service. We are also proactive in delivering
community legal education to disadvantaged Victorians.
Our specialist practice expertise
Under our Criminal Law program, we have a specialist Mental Health and Crime team that was
involved in the design and implementation of the innovative Assessment and Referral Court (ARC)
List that has been operating since April 2010 at the Melbourne Magistrates’ Court. This three-year
pilot program deals holistically and intensively with clients with a mental health illness, intellectual
disability, acquired brain injury (ABI) or cognitive impairment. Our two specialist lawyers service the
Court and act as a resource for training and support in dealing with this priority client group. We also
provide a visiting service to all Victorian prisons.
Under our Civil Justice portfolio we have a dedicated Mental Health and Disability Advocacy team
which assists clients with intellectual disabilities in a wide range of civil and administrative law
matters, including guardianship and administration orders, supervised treatment orders (STOs),
supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic),
discrimination matters, infringements, issues with Centrelink, victims of crime compensation claims
and mental health treatment. Lawyers in this team are experts in assisting clients who have any
mental health or disability issues in a holistic way.
INTRODUCTION
Research shows that people with any form of cognitive impairment are more likely to experience a
legal event1. Their problems often present in a cluster, compounded by the multiple disadvantages
they experience in terms of health, housing, financial hardship, and social isolation. The nature of
their cognitive impairment means they are over-represented in the justice system, and are more
likely to re-offend without successful early intervention2. Further, research shows that they find it
more difficult than others to know where to go to get legal help. Their particular needs may also
present difficulties for the justice system in identifying the nature of the disability in the first place,
1
Correction Victoria (2007) Intellectual Disability in the Victorian Prison System: Characteristics of prisoners with an
intellectual disability released from prison in 2003-2006, Corrections Research Paper Series Paper No. 02 September
2007, Department of Justice. This research found that people with an intellectual disability are more likely to be in
prison, more likely to re-offend, more frequently categorised as a higher security risk and less likely to receive early
parole.
2
Ibid
Victoria Legal Aid – Submission to Law Reform Committee – November 2011
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dealing with issues of sentencing and rehabilitation, and providing support during and after
imprisonment.
There is a growing focus on prevention and early intervention strategies in the justice system. There
is also an increasing recognition that people with intellectual disabilities require appropriate and
tailored responses when they are involved in legal proceedings.
VLA considers that it has a role in using its practice wisdom and experience to work with a range of
agencies to help shape improvements to the justice system thereby creating a more therapeutic and
holistic experience for people with intellectual disabilities.
RECOMMENDATIONS
VLA recommends that strategies to enhance access to, and improve interactions with, the justice
system for people with intellectual disabilities and their supporters should focus on:
1. FLEXIBILITY AND COORDINATION ............................................................................................................... 3
2. PREVENTION AND EARLY INTERVENTION ................................................................................................. 4
Recommendation 2: make assessment processes more accessible ............................... 5
Recommendation 3: target funding to encourage regular legal check-ups ..................... 7
Recommendation 4: provide more supported and secure housing options .................... 9
3. FAIRNESS IN THE JUSTICE SYSTEM ........................................................................................................... 9
Recommendation 5: restrict admissibility of police records of interview ...................... 10
Recommendation 6: create appeal and re-hearing rights................................................ 12
Recommendation 7: more flexible infringements system ............................................... 12
Recommendation 8: develop guidelines to ensure flexibility in court processes for
people with intellectual disabilities or cognitive impairment .......................................... 13
Recommendation 9: expand specialist Courts and programs ........................................ 15
Recommendation 10: review the Crimes (Mental impairment and Unfitness to be tried)
Act 1997 to allow for greater flexibility.............................................................................. 17
Recommendation 11: expand the availability of justice plans ........................................ 17
Recommendation 12: provide judges with flexibility to impose alternative orders and
conditions ........................................................................................................................... 18
Recommendation 13: invest in pre-release and reintegration programs ....................... 19
Victoria Legal Aid – Submission to Law Reform Committee – November 2011
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1. FLEXIBILITY AND COORDINATION
Whole of government commitment is critical to minimising contact with the justice system for people
with intellectual disabilities and to achieving meaningful social inclusion. Such a commitment should
be supported by adequately resourced and accessible services delivered by people with who the
necessary knowledge, skill and inclination to assist.
Support Services
Many people with intellectual disabilities have dual disabilities and/or multiple and complex needs
and benefit from a range of services and supports in their daily life. Such supports provide a
protective factor against participation in the justice system. Unfortunately, however, our experience
shows that there are not enough clinicians and other specialists who are qualified to treat and
support people with dual disabilities. Moreover, most services are not designed to cater for multiple
needs. As a result, people with intellectual disabilities may have separate workers assisting them
with disability, mental health, housing, drug and alcohol and physical health needs. This will often
mean multiple, separate appointments at various locations with different workers. Further, despite a
service’s best endeavours there is no guarantee that information will be shared between services as
needed, all of which can become overwhelming, and lead a person to withdraw from supports.
In situations where a person with an intellectual disability has approached an organisation or service
for assistance and provides consent, government agencies should facilitate access to relevant
information they hold as quickly as possible. This will alleviate the need for the individual to tell his or
her story a number of times.
Warm Referrals
Service providers and advocates should also proactively facilitate client access to services. This can
be done by making warm referrals - making appointments for the client and passing along relevant
information with consent. Such an approach will limit ‘referral fatigue’ which people with intellectual
disabilities tend to be particularly susceptible to.
VLA has established many formal and informal referral arrangements with various agencies to try to
ensure that people with intellectual disabilities are able to access appropriate legal and other
services at an early stage of proceedings. These include referral protocols with the Office of the
Public Advocate (OPA), State Trustees, Villamanta Disability Rights Legal Service, VCAT and
various offices of Disability Services.
Recommendation 1: improve coordination between service providers
That that there be a whole of government commitment for service providers to endeavour to
increase their accessibility to people with intellectual disabilities and their supporters. This should
include maximising opportunities to coordinate services and minimise administrative complications
and establishing warm referral protocols.
That protocols for the sharing of information be established, in consultation with the Privacy
Commissioner, for coordination between service providers.
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2. PREVENTION AND EARLY INTERVENTION
Early identification of intellectual disability
Australia follows the DSM IV diagnostic requirements for intellectual disability of IQ less than 70 and
poor levels on two social adaptive scales3. A person's intellectual disability can be classified as
'mild', 'moderate', 'severe' or 'profound'. A person with a 'severe' or 'profound' disability may be
unable to learn basic social skills such as speech, walking and personal care, and is likely to require
supported accommodation. While the majority of people with an intellectual disability have a 'mild'
level of intellectual disability and 'can learn skills of reading, writing, numeracy, and daily living
sufficient to enable them to live independently in the community’4, a recent High Court decision
expressly warned against treating ‘mild’ intellectual disability as insignificant5.
People with intellectual disabilities frequently do not volunteer or disclose their disability or may
minimise it for a variety of reasons including that:
they have not been assessed or diagnosed with an intellectual disability
they do not identify as having an intellectual disability, despite a diagnosis
they do not perceive the relevance of disclosing it, or
they are ashamed, embarrassed or fear a negative reaction based on previous bad experiences.
In addition, people with intellectual disabilities may have some strong functional skills and often
develop ‘survival’ skills, which mask their real difficulties. They may appear, and may strongly
desire, to participate in regular activities and transactions, but may not always understand their
obligations or consequences. They may also lack confidence and communication skills and so will
often depend on family or support people to assist them where such support is available.
Notwithstanding that they are often not trained to do so, VLA lawyers are often required to identify
adults as potentially having an intellectual disability. Our experience shows that failure to identify a
person’s intellectual disability may lead to inappropriate incarceration or unjust sentencing. It may
also miss an opportunity to prevent further interaction with the justice system. This highlights the
need for appropriate training and referrals to ensure that intellectual disabilities are properly
identified at the earliest opportunity.
While people with intellectual disabilities are eligible for a range of services, they will only be offered
and provided such services if their disability has been identified. In a significant number of cases,
the existence of a person’s intellectual disability does not come to light until after issues have
arisen and they have been caught up in the justice system. This means that they have moved
through the formal education system and likely interacted with numerous government and other
3
Baldry E, Dowse L & Clarence M (2011), Background paper for the National Legal Aid Conference Darwin 2011, People
with mental and cognitive disabilities: pathways into prison’ University of New South Wales, available at:
http://www.ntlac.nt.gov.au/doco/bpcpapers/People%20With%20Mental%20and%20Cognitive%20Disabilities%20%20Pathways%20Into%20Prison.pdf.
4
New South Wales Law Reform Commission (1994), People with an Intellectual Disability and the Criminal Justice
System: Courts and Sentencing Issues, Discussion Paper 35, pp. 16-17
5
Muldrock v The Queen [2011] HCA 39
Victoria Legal Aid – Submission to Law Reform Committee – November 2011
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agencies during their life without their disability ever having been noticed or registered and often
with inadequate supports being made available to them. The following case studies are where a
person’s intellectual disability was not identified until adulthood and they were involved in the legal
system:
Case study: Con
Con was drug dependent and had been involved in the criminal justice system since he was
a teenager, serving a number of lengthy sentences in custody. He had “ struggled to
complete orders supervised by Community Corrections in the past.
Con faced new charges of burglary and theft, which were likely to result in a lengthy prison
term. VLA obtained a psychological report from a previous court case statingthat Con’s IQ
was in the 60s and commissioned a full neuropsychological report thatindicated that he was
eligible to be registered with Disability Services.
Con’s lawyer asked the Magistrate to order an assessment for a justice plan and
consequently Disability Services became involved. Con was ultimately registered with
Disability Services, placed on a justice plan and released from custody. He hasnot been in
custody since that time (approximately 18 months ago). However, had his intellectual
disability not been recognised by his lawyer, he would in all likelihood have continued to
serve periods of imprisonment without receiving the services and supports he actually
required.
Case study: Clifford
Clifford has been in and out of the criminal justice system for most of his adult life and came
into contact with VLA during his first admission to a hospital psychiatric unit for treatment of a
mental illness.
The treating team at the hospital and his lawyer were concerned about his level of
understanding of his situation. They spoke with Clifford’s main carers and social workers
and it became apparent that he ‘thrived’ in the prison system due to the routines, regulation
of behaviour and boundary setting; he only had difficulties whenhe was discharged from
prison. These were also indicators of intellectual disability.
Accordingly, they arranged an assessment that indicated that he had an intellectual disability
as well as a mental illness. As a result, the treating team liaised with Disability Services and
linked him into appropriate supports, while at the same time provide treatment for his mental
illness.
Clifford’s intellectual disability was only detected in his mid 40s after considerable exposure
to the criminal justice system. His intellectual disability had not been diagnosed during his
time in prison. It was quite possible that, had he been linked into services at an earlier stage,
he may have had a better quality of life and minimised the periods of time spent in custody.
Recommendation 2: make assessment processes more accessible
That assessment of intellectual disability and eligibility determination processes for access to
services be streamlined to assist all people who may be eligible to access services as quickly
as possible.
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Early intervention and access to legal services
It is well recognised that where legal or quasi-legal issues are identified early they are more likely to
be resolved cheaply, efficiently and with minimum stress. Legal responses should therefore focus on
enabling access to assistance at the earliest opportunity.
The following case study provides an example of this point:
Case study: Alan
Alan is a young adult with an intellectual disability. He has been a ward of the state since he
was a teenager and has had significant involvement with Disability Services since then. He
has poor self-care, hygiene and life skills and needs to live in fully staffed, supported
accommodation.
When Alan was in custody, he signed a consent form to convert a large number of fines into
imprisonment in lieu of payment. The paperwork and procedural information was provided to
him by prison staff including disability workers and he did not seek legal advice before
proceeding. The imprisonment in lieu application proceeded before a magistrate and Alan
was unrepresented during the hearing. The fines were converted into several weeks of
imprisonment. Alan’s lawyer (assisting him with other matters) only became aware of this by
chance.
When his expected parole date passed and Alan was not released, Disability Services
contacted his lawyer. It was discovered that a clerical error had led to the imprisonment in
lieu orders being dated incorrectly and commencing later than they were meant to. This had
the potential to cause Alan to be held in custody for months beyond his scheduled release
date. Alan instructed that he had not thought he needed legal advice regarding this matter
as it did not seem important, and he had not realised that signing imprisonment in lieu orders
had the potential to cause him to be imprisoned for longer.
Critical to providing legal assistance early is the development of a diagnostic model to identify that a
person has legal issues. It will not always be apparent that issues such as difficulties with Centrelink
payments, or problems with public landlords, have a legal dimension. This may be particularly true
for people with intellectual disabilities. A response to this may be the establishment of regular legal
health checks. Just as regular medical check-ups lead to the early identification and treatment of
medical issues, regular legal check-ups would lead to the early identification and appropriate
resolution of legal issues. Such check ups could focus on the following issues:
outstanding fines and debts
consumer and contract issues
credit and financial issues
social security entitlements and debts
housing
issues with guardians and administrators
issues with any therapeutic, supervisory or other restrictive orders (for example, under the
Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (Vic), the Disability Act 2006
(Vic), the Serious Sex Offenders (Detention and Supervision) Act 2004 (Vic), the Mental Health
Act 1986 (Vic))
Victoria Legal Aid – Submission to Law Reform Committee – November 2011
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relationships and contact with family members, including children
any issues of community safety or family violence
victims of crime assistance, and
upcoming criminal law matters.
VLA currently provides expert legal help in these areas. For example, a critically important factor in
successful reintegration for those released on parole is the implementation of pre release initiatives,
which can be described as ‘early intervention’ or ‘preventative’ services, and are broadly recognised
as effective and cost efficient. Under the National Partnership Agreement on Legal Assistance
Services6, an agreement between the Commonwealth government and the State of Victoria, VLA
has an explicit mandate to provide early intervention and preventative legal services.
In accordance with this mandate, VLA is reviewing access to its services for ‘harder to reach’ clients,
including those with intellectual disabilities. Working together, VLA and other service providers will
be better able to facilitate streamlined access to this help at the earliest possible opportunity. For
example, VLA and the Department of Human Services (DHS) could enter into a referral
arrangement whereby DHS could refer consenting clients to our Legal Help line when legal issues
are identified either by the client, by case managers or by other service providers. VLA is committed
to exploring these and other opportunities to work with Corrections Victoria and other service
providers.
Recommendation 3: target funding to encourage regular legal check-ups
That government departments, agencies and service providers establish protocols to facilitate
regular legal check-ups.
Housing
People with intellectual disabilities who would otherwise be granted bail or parole are often denied it
on the basis that they do not have stable, supported accommodation. An apparent shortage in
appropriately supported accommodation options in the community appears to directly impact on
decisions made by judicial officers regarding an person’s liberty – in bail or sentencing. Indeed in
our experience judicial officers often cite a lack of supported housing as the reason for denying a
person’s release into the community.
Lack of appropriate housing is particularly critical for people with an intellectual disability who have a
criminal record. Currently, there are only four DHS bail houses where people with intellectual
disabilities can be placed while on bail awaiting trial or sentence. Beyond this, there are very limited
supported accommodation options for people with intellectual disabilities to live in the community
once they have a criminal history.
6
National Partnership Agreement on Legal Assistance Services. Available at:
<http://www.federalfinancialrelations.gov.au/content/national_partnership_agreements/Other/Legal_Assistance_Servic
es_new.pdf>
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Case study: Alan (continued)
When Alan was sentenced, the court deliberately structured his term of imprisonment so that
he had a shorter than usual non-parole period, allowing him to be eligible for release from
custody and supported during a longer period of parole in the community, to maximise his
prospects of rehabilitation.
Alan completed the non-parole period of his sentence. However, he was not granted parole
for over three months because Disability Services were unable to find appropriately staffed
supported accommodation for him. This essentially subverted the court’s intention that Alan
should have a longer period of time under supervision in the community on parole. There
was a disjuncture between the legal process of sentencing and the implementation of that
sentence in practice, which operated to Alan’s detriment.
When Alan was about to be released from prison (without any parole supports in place), the
Secretary of the Department of Justice considered applying for a supervision order. The
factors taken into account were the results of risk assessment screenings, an assessment of
Alan’s proposed future place of residence and, linked to this, his level of support and
supervision in the community, which was in essence was no different to what it had been
prior to his offending and incarceration.
Case study: Kamol
Kamol has a long history of criminal offending, drug use and being abused. He was
assessed as eligible for Disability Services on account of his intellectual disability as a young
teenager, but has not engaged with Disability Services for many years. Kamol was
remanded in custody after being arrested during the commission of a criminal offence.
There were also a substantial number of outstanding warrants for his arrest.
Kamol was brought before a magistrate however bail was refused due to his history of failing
to appear at court and because there was no suitable accommodation available for him.
The matter could not finalise by way of plea and sentencing on the day because a report
from Disability Services supported the imposition of a justice plan. As a result, he was held in
custody.
The matter was adjourned numerous times while Disability Services completed the justice
plan assessment and report. Kamol had been held in custody for so long waiting for the
justice plan report that the magistrate finalised the matter by giving him an immediate
custodial sentence, declared as time already served on remand. Kamol was therefore
released without a justice plan, any accommodation or services in place to support him in the
community.
While having an (identified) intellectual disability will be mitigating for the purposes of sentencing,
the case studies above show that an intellectual disability can contribute to difficulties in securing
housing and lead to longer periods in custody. This means that, while the law may say that people
with intellectual disabilities should be treated more leniently than others, the opposite may in fact
occur as appropriate resources and institutional cultures do not exist to make it a reality.
Disability Services Victoria has an obligation to provide people with intellectual disabilities with
supported and secure housing. However, in VLA’s experience, many people with intellectual
disabilities live in inappropriate accommodation and/or are unhappy with their placement. The
shortage of supported housing is particularly pertinent in rural and regional areas. Inappropriate
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accommodation includes boarding and rooming houses, which are poorly regulated (although VLA
notes that the Minister for Housing will have the power to prescribe minimum standards for rooming
houses once the new Division 8 of Part 3 of the Residential Tenancies Act 1997 (Vic) is proclaimed).
Our experience also shows that where other rooming house residents abuse substances (including
alcohol) and are involved in criminal activity, the person with an intellectual disability may be caught
up in this conduct because of their tendency to be influenced by and want to please others.
Recommendation 4: provide more supported and secure housing options
That more appropriate supported and secure accommodation options are provided to ensure
that people with intellectual disabilities are not held in custody/detention due to lack of
housing or appropriate community support.
3. FAIRNESS IN THE JUSTICE SYSTEM
Police interviews and the independent third person program
Police questioning and interviews pose particular problems for people with intellectual disabilities,
both as complainants and accused persons. People with intellectual disabilities often acquiesce to
what is suggested to them by people in authority, such as police, because they are eager to appear
compliant and/or do not want to reveal their cognitive impairment. They may agree with
suggestions or statements put to them regardless of whether or not:
they understand the question
the suggestion is true, or
they are compelled by law to do so.
This is particularly the case when they are asked closed, or leading questions, which is the style of
questioning generally adopted in police interviews. Because modes of communication are often not
meaningfully altered to accommodate people with intellectual disabilities, it is questionable whether
their acquiescence and admissions are valid or reliable at all. People with intellectual disabilities
have also reported to their lawyers that they were led to believe that they would not be released
from police custody if they did not ‘make admissions’ during the interview and so have agreed to
statements put to them by police because they were frightened at the prospect of being remanded in
custody.
People being questioned in relation to an alleged criminal offence have the right to remain silent or
refuse to answer questions without any adverse inferences being drawn from their silence. They are
informed of this right, and the right to contact a lawyer, before a formal police interview commences.
However, if these rights and the consequences of choosing whether or not to exercise them are not
fully understood by the person being interviewed then they are effectively denied those rights. Such
rights need to be actively promoted and supported by the structure and culture of our justice
institutions.
A number of VLA lawyers have reported that police have interviewed people with intellectual
disabilities when they are intoxicated and thus even less capable of meaningfully engaging in the
interview process. The following case study is one example:
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Case study: Nathan
Nathan is a young adult who has an intellectual disability and an IQ of 64. He is illiterate, has
long-term homelessness, drug and alcohol problems and a history of family abuse. He was
charged with three armed robberies and a number of other offences.
Each time Nathan was charged, he was interviewed by police and answered questions,
contrary to legal advice and even when he was supported by an independent third person.
On at least one occasion, he was extremely intoxicated at the time of arrest but, in spite of
this, the police proceeded with the interview.
If a person with an intellectual disability has been interviewed by the police without an independent
third person (ITP) present, it can nevertheless be very difficult to persuade a court to remove the
interview from the evidence if the police can show that no coercion occurred. However, absence of
coercion on the part of the police does not mean that the interview was fair and reliable given the
significant power disparity and the subtleties involved in understanding the consequences of
participating in the interview.
Even if an ITP is engaged, there is no guarantee that their presence and efforts mean that the
person with an intellectual disability will have genuinely understood their rights or can make an
informed decision about whether or not to exercise them. Knowledge of a right should not be
equated with understanding as it may unfairly lead to the assumption that the person with an
intellectual disability is able to make an informed choice based simply on that knowledge.
The following case study illustrates how the presence of an ITP does not always safeguard a
person’s rights during a police interview:
Case study: Alan (continued)
Alan was charged with a large number of repetitive, nuisance type offences such as begging,
as well as charges of theft and damage to property. Alan participated in 18 separate,
recorded interviews with police and agreed with all allegations put to him by the police. The
police lacked evidence linking Alan to some of the offences that were put to him in the
interviews and they would not have secured convictions for these had Alan not made
admissions to the offences in the interview.
There was an ITP present for each of the 18 police interviews but Alan never once exercised
his rights to access legal advice or to remain silent. He later explained that he did not think it
was important and did not understand why it would have made a difference.
Recommendation 5: restrict admissibility of police records of interview
That restrictions on the admissibility of police records of interview should be adopted where
the requirements of people with intellectual disabilities or other cognitive impairments have not
been adequately addressed in the interview process. This may include restrictions on
admissibility where such people have been interviewed without legal advice, without being
offered the use of an ITP, where police have offered inducements (like bail) for someone to
answer questions, or where the person is intoxicated.
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Infringements
The infringements system allows for some recognition and flexibility in penalty for people with
intellectual disabilities and other ‘special circumstances’. However, the system could benefit from
further flexibility, for example, being able to apply for a variation of the instalment order based upon
a change in circumstances.
If a fine has not been paid and cannot be met through enforcement action by the Sheriff’s office, a
person may be arrested on an infringement warrant and brought before the Magistrates’ Court. In
those circumstances, s. 160 of the Infringements Act 2006 (Vic) requires the Magistrate to impose
imprisonment unless the person can show ‘special circumstances’ or that their imprisonment would
be ‘excessive, disproportionate or unduly harsh’. The Magistrate may, in those circumstances,
discharge or reduce the amount of the fines owing, impose a prison term, make an order for
imprisonment if the person fails to pay the fines by instalments, or impose a Community Based
Order.
A person may apply to an Infringements Registrar to have enforcement orders in relation to their
infringements revoked on the basis of ‘special circumstances’, which includes any of the following
conditions: intellectual disability, diagnosed mental illness, serious addiction to drugs or alcohol, or
homelessness. The Infringements Registrar must be satisfied that the relevant condition resulted in
the person being ‘unable to understand that [the] conduct constitutes an offence or to control [that]
conduct’ (Infringements Act, s. 3). Despite this finding having been made and the enforcement
orders revoked on that basis, the agencies that issued the original infringements frequently then
request that the matters be listed for hearing in the Special Circumstances List at the Magistrates’
Court. Each agency attends to prosecute their matters before a judicial registrar, and VLA provides
two duty lawyers to service the List each week. Invariably, the matters are either withdrawn by the
prosecutors on the day, dismissed by the court or subject to a nominal penalty like an adjourned
undertaking. The entire process, from making the initial revocation application through to the
hearing, is resource intensive for the many agencies involved, including VLA.
The Infringements Act does not provide for a de novo appeal to the County Court against a
Magistrate’s order under s. 160 of the Infringements Act. In all other criminal matters, where a
person is convicted of a criminal offences, appeals to the County Court can be initiated in
accordance with Part 3.3 of the Criminal Procedure Act 2009 (Vic).
Where a person elects to contest an infringement notice, the matter proceeds as a summary
prosecution in accordance with Part 3.3 which outlines the process the Magistrates’ Court must
follow in a summary hearing, and the person will have a right of appeal under s. 245. However, if
the person does not make that election, and the person is ultimately before the court on an
infringements warrant, the matter then proceeds pursuant to the procedure laid down by s. 160 of
the Infringements Act, not the Part 3.3 process. This creates an arbitrary difference in appeal rights,
depending on the technical question of the procedure by which an infringements matter is brought
before the Magistrates’ Court.
Whilst s. 272 of the Criminal Procedure Act permits a right of appeal to the Supreme Court on a
question of law, it is a narrow appeal right. Even a demonstrably unsound conclusion of fact does
not give rise to a question of law in infringement matters (Tsolacis v Department of Transport [2010]
VSC 183, at [15] per Beach J). Supreme Court appeals are also arguably more costly and less
efficient.
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The absence of a de novo appeal right in infringement matters has a profoundly detrimental effect
on vulnerable people, including people with intellectual disabilities, as the following case study
demonstrates:
Case study: Michael
An order was made in respect of Michael following execution of infringement warrants
relating to $35,000 worth of fines he had incurred. The order was to the effect that he would
be imprisoned in default of specified regular payments. Michael defaulted on this order and
is currently liable to serve a significant term of imprisonment.
According to a recent psychological report, Michael has a full-scale IQ of 61. He has
suffered a significant decline in his mental state.
Before the Magistrate, Michael was represented by a duty lawyer who was not aware of his
impairments. They were not put before the Court when the order was made. Michael has no
right of appeal to the County Court to remedy the Magistrates’ Court’s decision because the
Infringements Act does not provide this.
Recommendation 6: create appeal and re-hearing rights
That there be a right of appeal against orders pursuant to s. 160 of the Infringements Act 2006
(Vic) that result in imprisonment.
Recommendation 7: more flexible infringements system
That a formal audit of the infringements system is undertaken to identify reforms to make the
infringements system more flexible.
Court procedures and processes
People with intellectual disabilities may not appreciate the importance of personally attending court
at a designated time or may readily forget bail conditions and may find attending court quite
distressing. Accordingly, it is important for courts to recognise and be sensitive to the challenges
that people with intellectual disabilities (and other vulnerabilities) face when interacting with the
justice system. In light of the Criminal Procedure Act and the Civil Procedure Act 2010 (Vic),
procedural breaches by a person with an intellectual disability should be met with a genuine inquiry
into the circumstances behind it and the difficulties they faced in complying. Responses should be
flexible and take those circumstances into account.
The following case study demonstrates the need for such procedural flexibility to be meaningfully
adopted in cases involving people with intellectual disabilities:
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Case study: Nathan (continued)
Nathan has significant difficulties understanding the court process. A psychological report
stated that Nathan was fit to be tried but recommended that, in order for him to be able to
participate in proceedings, the hearing procedures should be adapted, with long breaks and
someone to explain the proceedings to Nathan and for him to report back that he
understood.
VLA provided an additional lawyer to sit in the dock with Nathan to explain the proceedings
and continually monitor his understanding. However, the proceedings were not otherwise
amended, save for the judge trying to explain things to Nathan in simple terms. Whilst some
flexibility was adopted in these proceedings, more could have been done to minimise the
stress for Nathan and ensure more meaningful participation.
In VLA’s experience, people with intellectual disabilities are extremely reliant on dedicated lawyers
or support workers to guide them through the court process. People with intellectual disabilities
may be inclined to simply agree with directions or say they understand things even when they do
not.
Discretions and flexibility should be built into all court proceedings to permit registry staff and
magistrates to excuse breaches and dispense with standard protocols where appropriate. For
instance, where a person with an intellectual disability is legally represented, they should be
excused from attending administrative mentions even when on bail. It is noted that s. 36(4) of the
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) permits a court to excuse a
person from personally appearing where it ‘would be detrimental to [their] health’.
There is almost always a significant delay between an incident with legal consequences occurring
and the court hearing to determine its resolution (whether it is a criminal or civil matter). Such
delays may even be a number of years. The passage of time following the critical incident makes it
difficult, particularly for a person with an intellectual disability, to remember the incident, provide
their lawyer with meaningful instructions, give evidence and, in many cases, actually link the
incident in question to the court proceedings. Delay between a criminal offence and its hearing also
means that, if a penalty is eventually imposed by the court, it may not provide any specific
deterrence because the person may not associate the penalty with the behaviour which led to it. As
Victoria Legal Aid – Submission to Law Reform Committee – November 2011 page 14 of 21 a result,
they do not learn from the process and will be no more likely to control or modify their behaviour in
the future. People with intellectual disabilities are more likely to learn from an immediate,
supportive, behavioural intervention than a court hearing months or years down the track.
Flexibilities may include:
priority listing to minimise delay
regular rest breaks during trials and other extended hearings, and
regular opportunities for lawyers and/or disability workers to explain and clarify understanding
during proceedings (akin to the additional time given to language-based interpreters to interpret
proceedings).
Recommendation 8: develop guidelines to ensure flexibility in court processes for
people with intellectual disabilities or cognitive impairment
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That all Victorian courts and tribunals develop clear guidelines in relation to how court
procedures should be modified for people with an intellectual disability or cognitive impairment.
The guidelines should be developed in consultation with disability experts, and could include
priority listing, mandated breaks, and altered language.
Court support programs
As highlighted by the Victorian Auditor General’s report on Problem-Solving Approaches to Justice7,
the Court Integrated Services Program (CISP) and the Neighbourhood Justice Centre (NJC) have
greatly enhanced access to justice since their inception. Within the criminal justice system, the ARC
List can also assist people in negotiating the service system and linking people to appropriate
supports.
The Assessment and Referral Court (ARC) List
The ARC List is a pilot program at the Melbourne Magistrates’ Court that provides a
‘problemsolving’, therapeutic alternative for summary crime accused with a mental illness,
intellectual disability, ABI, autism spectrum disorder, or neurological impairment. The ARC List
commenced sitting in April 2010 and will run for three years. People in the ARC list will generally be
referred for assistance to one of VLA’s specialist ARC List Lawyers, who provides specialist
knowledge of these matters and consistency of representation.
VLA has actively contributed to the development and implementation of the ARC List. The ARC List
adopts the principles of therapeutic jurisprudence. Certain types of offences and any matters
committed outside the Melbourne catchment area are excluded from the ARC List. It is important to
note that while the ARC List is specifically aimed at supporting people with intellectual disabilities,
mental illness and other disabilities, currently its capacity and jurisdiction are limited so many people
who would otherwise be eligible are not able to participate
Neighbourhood Justice Centre
The NJC, located in Collingwood, Melbourne, is a venue of the Magistrates’ Court, the Children’s
Court, the Victorian Civil and Administrative Tribunal (VCAT) and the Victims of Crime Assistance
Tribunal (VOCAT). It operates on the principles of therapeutic jurisprudence and is co-located with
ancillary services, including a mental health nurse, drug and alcohol counsellors, financial
counsellors, Community Corrections officers, police prosecutors, a social worker, an employment
officer, housing assistance workers, community legal centre lawyers, aboriginal liaison workers and
others.
Where a client of the NJC appears to have a disability such as an intellectual disability or acquired
brain injury, it is possible to arrange a diagnostic assessment relatively quickly. The Magistrates’
Court at the NJC does not proceed to sentence someone if it is of the view that they may have a
disability that requires assessment. Clients of the NJC, like other clients of Disability Services,
frequently have multiple issues and are therefore involved with multiple services and agencies. At
the NJC, there is a general authority to release information that enables a worker from one agency
to obtain information quickly from others without bureaucratic barriers impeding access. As well,
7
Available at: http://download.audit.vic.gov.au/files/20110406-Justice.pdf
Victoria Legal Aid – Submission to Law Reform Committee – November 2011
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case meetings are organised to coordinate the workers’ approach to clients so that they do not
become overwhelmed.
Court Integrated Services Program
CISP works with people on bail at the Latrobe Valley, Melbourne and Sunshine Magistrates’ Courts.
It is a short-term, multidisciplinary advocacy program that provides referrals and case management
for people in the areas of housing, drug and alcohol, mental health, employment and other issues
related to social inclusion. It is more expansive than the CREDIT bail program, which is available in
a greater number of suburban Magistrates’ Courts as well as Ballarat Magistrates’ Court.
CISP has recently introduced three specialist, senior case managers for clients with intellectual
disability, acquired brain injury and mental illness. The intellectual disability specialist case manager
has expertise in this area and is responsible for having strong linkages and brokerage relationships
with the disability sector, including Disability Services and disability employment agencies. The ABI
specialist case manager conducts ABI risk factor screenings and is responsible for assisting clients
and regular case managers with navigating the ABI assessment and support sector.
Case study: David
David has a mild intellectual disability. He has a very lengthy criminal history, including an
extended prison term in Western Australia in his early 20s. He was at significant risk of a
further period of immediate imprisonment after he was charged with a large number of
criminal offences.
David was referred to the CISP for case management and referrals to appropriate support
services. He was supervised by the magistrate, who granted bail, and returned to court
each month for a review of his progress. He initially missed a number of appointments,
which had to be rescheduled, and struggled to make progress on the program. Finally, he
engaged with a psychologist and began to attend regular appointments with her.
Persistence with programs such as CISP is important as many people involved in the court
system, especially those with intellectual disabilities, benefit greatly from ongoing support,
supervision and case management.
David completed the program successfully and the magistrate was pleased with his
progress. The magistrate is now more likely to impose a sentence other than immediate
custody at the upcoming plea hearing.
VLA has found the program described above to be enormously beneficial in supporting their clients
with cognitive impairments to navigate the criminal justice system as well as addressing issues that
are causally linked to offending and recidivism. An geographical expansion of these programs and
the bolstering of relevant support programs would further enhance their effectiveness and reach.
Recommendation 9: expand specialist Courts and programs
That the ARC List and the CISP be implemented in other courts throughout Victoria; and
That the NJC model, including co-located ancillary services, be expanded across the
justice system.
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Mental impairment and fitness to be tried
Aspects of the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
(CMI Act) are problematic for people with intellectual disabilities. For example, s. 5 of the CMI Act
requires a person be discharged if they are found not guilty on the basis of mental impairment of a
summary offence or an indictable offence triable summarily in the Magistrates’ Court. This provision
notwithstanding, VLA has been involved in many matters where police prosecutors have either
objected to summary jurisdiction or arranged for additional equivalent but indictable common law
charges to be laid when a mental impairment defence is suggested in the Magistrates’ Court.
This practice frustrates the intention of the legislation which is to discharge Magistrates’ Court-level
matters where the defence of mental impairment is established. Instead, if the matter is uplifted to
the County Court, the accused will be subject to both a trial before jury on the issue of mental
impairment and then a subsequent special hearing to determine whether they committed the
offence, are not guilty or are not guilty because of mental impairment. This process is very time
consuming and resource-intensive for the justice system, contributing to the delays experienced in
the superior courts, and is incredibly stressful and confusing for the person with an intellectual
disability. The case study below provides an example:
Case study: Sam
Sam is 37 years old and had a moderate intellectual disability with an IQ in the low 40s.
Despite his disability, he is able to take short trips on public transport by himself, along
familiar routes. However, if people made fun of him or he became frustrated, he lacked
communication and other skills to handle the situation and would resort to pulling down his
pants and exposing his genitals to make other people leave him alone.
On a couple of occasions, he was charged with wilful and indecent exposure (a statutory,
summary offence). The charges were dismissed in the Magistrates’ Court on the basis of his
mental impairment. On the next occasion the behaviour occurred, rather than charging him
with the same statutory offence, the police charged him with an archaic common law offence
of ‘exposing his naked person’, which was not triable summarily. The police admitted this
was done because they did not want the Magistrates’ Court to simply dismiss the matter.
They wanted a supervision order imposed which could only be made in the County Court. As
a result, the matter proceeded in the County Court, where Sam was found unfit to be tried
and was ultimately placed on a non-custodial supervision order (NCSO), under which
services were provided to him by Disability Services.
The lengthy County Court process was extremely confusing and distressing to Sam, who
was completely unable to follow what was happening and feared being locked up every time
he attended court. VLA provided an additional lawyer to sit with him and reassure him
throughout the proceedings. It was disappointing that Disability Services did not provide
adequate supports to Sam until they were compelled to do so by the NCSO, and that Sam
was put through so much stress to achieve that outcome.
Further, people who are found unfit to be tried or not guilty because of mental impairment may be
subjected to indefinite supervision orders under Part V of the CMI Act. These orders are generally
far lengthier and more restrictive than any sentence which would have been imposed on the person
had they pleaded guilty to the charges. For instance, the order may require them to be held in
secure care for many years and have to return to the court for periodic reviews of their order.
Lawyers are therefore often reluctant to advise a client to pursue a defence of mental impairment,
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particularly in minor matters where the person would not likely face a custodial sentence if they
simply pleaded guilty. However, this practice potentially results in more findings of guilt and
convictions being recorded against people with intellectual disabilities when they may technically
have had a defence to the charge.
Recommendation 10: review the Crimes (Mental impairment and Unfitness to be tried)
Act 1997 to allow for greater flexibility
That the CMI Act be reformed to allow greater flexibility for Magistrates to deal with matters.
Sentencing dispositions
Intellectual disability, unlike some other conditions, is a lifelong condition that is generally not
amenable to any treatment. People with intellectual disabilities will often not learn or generalise from
one situation to modify their behaviour in the future, and therefore the application of an automatic or
presumptive escalation in consequences if problematic behaviour or procedural breaches continue
may be ineffective. Sentencing law is in line with reasonable community sentiment in recognising
that certain personal characteristics substantially diminish the moral culpability of an offender, even
for a very serious offence. This applies particularly to evidence of intellectual disability, mental
illness and ABI.
There is now strong case law supporting the proposition that people with intellectual disabilities are
not suitable candidates for general deterrence and should receive sentences tailored to their unique
needs (for example, the recent High Court decision in Muldrock). A difficulty however is that the
sentencing options for a person with such a disability are still limited by the Sentencing Act 1991
(Vic) and on occasion the court struggles to identify an appropriate sentence for a client, particularly
where they have reoffended numerous times and do not appear to benefit from supervision or other
supports.
People who are placed on justice plans as part of a sentencing order from the court are
automatically linked in and given priority for services with Disability Services, however justice plans
are not currently available for people with acquired brain injuries and other disabilities that are
covered by the Disability Act but do not fall within the definition of ‘intellectual disability’.
Recommendation 11: expand the availability of justice plans
That the government review sentencing law to ensure consistency with the Disability Act 2006.
That justice plans be made available to anyone with a disability within the definition in the
Disability Act, in particular ABI.
Preventative detention, supervision and compulsory treatment
People may be subject to preventative detention, supervision and/or compulsory treatment through
supervision orders (SOs) under the Serious Sex Offenders (Detention and Supervision) Act 2009
(Vic) and STOs under the Disability Act. Detention, supervision and treatment, especially where
based on concerns about future risk, represent a significant interference with a person's autonomy
and rights. Any such restrictions should be based on sound research and evidence demonstrating
the need for the intervention and be accompanied by effective, evidence-based treatments to
minimise the period for which the person will need to be subjected to such an order.
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Risk assessment tools such as the static 99 are relied on when considering the risk of future
offending and the need for such orders. The OPA, in its report Supervised Treatment Orders in
Practice: How are the human rights of people detained under the Disability Act 2006 protected?8,
expressed concern at the limited validity of current risk assessment tools for people with intellectual
disabilities.
Unlike other conditions that may be episodic or amenable to treatment, there are few effective
treatments to alleviate the impact of an intellectual disability. Often, the risk reduction tools adopted
for this group, such as confinement and anti-libidinal medications, have significant side effects. This
means that, in practice, people with intellectual disabilities who are preventively detained or subject
to compulsory treatment are likely to remain on those orders for significant periods of time, often
without real therapeutic benefits and with possible long-term side effects.
Especially in the absence of secure accommodation and appropriate supports, people with
intellectual disabilities are likely to receive high scores on static risk assessment tools. People on
SOs have to live in accommodation approved by the Parole Board. It is difficult to find satisfactory
accommodation in the community. Consequently, many people end up residing at the Disability
Forensic Assessment and Treatment Service, a secure facility in Fairfield, or in Corella Place, a
secure facility on the grounds of Ararat Prison. If more supported accommodation options were
available then people subject to these orders may be able to remain in the community and would be
more likely to develop positive and protective supports.
Recommendation 12: provide judges with flexibility to impose alternative orders and
conditions
That there be a review of preventative detention, supervision and/or compulsory treatment
legislation to give judges flexibility to impose alternatives to supervision and supervised
treatment orders.
Supporting offenders’ reintegration into the community
People with intellectual disabilities who are involved in the criminal justice system require additional,
specialist support from Disability Services. Collaborative and coordinated service design between
service providers is integral in ensuring improved pre release and reintegration programs for
prisoners.
Many of the practical problems that prisoners face on release are either legal in nature, or have a
legal solution. The sorts of problems commonly encountered include debts that continue to be
pursued where the prisoner is in custody. Often prisoners can, with the right legal help, be made
‘judgment proof’. The stress of debt is therefore removed as a risk factor in the critical post-release
period. Equally, many prisoners have involvement in either family violence proceedings or child
protection proceedings. Often those orders need to be changed to reflect new circumstances. If
they are not, parolees run the risk of breaching orders and being returned to custody when legal
help may have resolved the issue.
8
Available at
http://www.publicadvocate.vic.gov.au/file/file/Research/Reports/STOs%20in%20Practice,%20How%20are%20the%20
HRs%20of%20People%20Detained%20under%20the%20Disability%20Act%202006%20Protected.pdf
Victoria Legal Aid – Submission to Law Reform Committee – November 2011
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Recent experience of improving support and risk assessment around parole in New South Wales
(NSW) has shown early signs of success. The approach has included programs providing
prerelease assessment and post-release support for those in custody with a history of drug use. An
evaluation of the NSW Justice Health Connections Project, which aims to improve continuity of care
for clients with histories of problematic drug use who are being released to the community, showed
a high rate of success in reducing recidivism and ensuring better preparedness for the return to the
community9.
While these results are encouraging, there is evidence to suggest that the critical period for
intervention and support is immediately following release. A renewed focus on case management is
a key strategy in minimising the risk of re-offending. A strengthening of resources in this area would
also help address the widespread issue of lack of suitable housing, in itself a significant risk factor in
re-offending.
Key features of planning for reintegration should include release plans and accommodation support.
While release plans are currently taken into account in the determination of the Parole Board,
prisoners should have the opportunity to be more actively involved in their development supported
by integrated and intensive case management.
A difficulty exists in relation to parole for people convicted of sexual offences. It appears that
completion of the sex offenders program is generally necessary before parole is granted in these
matters. Completion of the program is often particularly challenging for people with intellectual
disabilities. They may have limited access to the program – it is it is only available at low security
facilities - and may find it difficult to comprehend or participate in the program. As a result, parole is
usually refused.
More generally, VLA has observed many people experiencing difficulties in their interactions with
Community Corrections. Many programs run by Community Corrections, such as programs to
reduce reoffending, rely on cognitive behavioural therapy and are conducted in groups. Depending
on the degree of disability and the problems they are being used to address, these strategies are
generally not effective for people with intellectual disabilities unless they are significantly adapted
and delivered by people with specialist training. This puts people with intellectual disabilities at a
disadvantage as they are less likely to benefit from the interventions, are less likely to complete their
orders and remain at risk of reoffending. More targeted programs that involve additional supports
are required if clients with intellectual disabilities are to have a genuine chance in complying with
their orders.
Recommendation 13: invest in pre-release and reintegration programs
That relevant government agencies and community services work together to provide more
targeted resources to support a renewed focus on reintegration, including a legal help
component to pre-release preparation.
9
Martire, K. & Howard, M. (2009) Connections Project Evaluation Final Report, National Drug & Alcohol Research Centre,
New South Wales
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