Sentencing and access to justice
I would argue that,
just as wheelchair users need ramps to enter banks, people with cognitive
disabilities require adjustment to access justice on an equal basis with
others. It is not about providing special treatment but more about creating an
even playing field.
The purpose of the next three chapters is to sequentially outline the
issues relating to the three stages that a person who is indefinitely detained
under a forensic order will undertake.
Chapter 3 examines a person with cognitive and/or psychiatric
impairment's intersection with the criminal justice system where they are
brought before a court and subjected to a forensic order.
Chapter 4 looks at the challenges faced in prison by a person
subject to a forensic order.
Chapter 5 focuses on the challenges transitioning from prison
back to the community for people on forensic orders.
As noted above, this chapter outlines the interactions between a person
with cognitive and/or psychiatric impairment and the court system. The
committee has received considerable evidence raising deficiencies with how the
pre-trial and sentencing process currently works for people with cognitive and/or
psychiatric impairment. This chapter outlines:
the current Northern Territory (NT) and Western Australia (WA) legislation
for people subject to forensic orders, and highlights the respective elements
which lead to indefinite detention;
the role of limiting terms for forensic orders;
questions of legal capacity and support to engage with the
use of screening and diagnostic tools in courts pre-trial; and
review of forensic orders using specialist courts.
Current sentencing practice that leads to indefinite detention
There are two prominent cases that have brought the issue of indefinite
detention of people with cognitive and/or psychiatric impairment into the
public eye—Mr Marlon Noble and Ms Rose Ann Fulton.
As noted in Chapter 2, Mr Marlon Noble, an Aboriginal man from Western
Australia, spent nearly a decade behind bars after being found unfit to plead, despite
being neither tried nor convicted of the crimes he was alleged to have
committed at any stage prior to, or during his incarceration.
In January 2012 he was released from prison with strict bail
conditions—including regular drug testing and overnight home detention. Despite
Mr Noble's release from the confinement of a prison, Mr Noble has still not had
the opportunity to legally challenge the allegations against him:
I'm from Geraldton. I went to prison for the rest of my life.
Been there for ten years of my life. No...I am not free. I am out of prison, but
I am not free yet.
This experience is not unique. In March 2014, it was reported that Ms
Rosie Ann Fulton, a 23 year old woman, had 'spent the past 18 months in a
Kalgoorlie jail without a trial or conviction after she was charged with
driving offences'. The magistrate in this case found that Ms Fulton:
was unfit to plead because she is intellectually impaired—a
victim of foetal alcohol syndrome—and has the mental capacity of a young child.
Her legal guardian, former police officer Ian McKinlay, says
Ms Fulton ended up on a prison-based supervision order because there were no
alternatives in the area at the time.
"At the moment this outcome is almost entirely reserved
for Aboriginal, Indigenous Australians," he said.
The Aboriginal Disability Justice Campaign says there are at
least 30 Indigenous people in a similar situation around the country.
Western Australia's Inspector of Custodial Services, Neil
Morgan, says the state has no option but to incarcerate Ms Fulton as existing
options are limited.
"One is a 'declared place', which was always intended to
be for people like this. Unfortunately we still don't have any declared places
15 years after the Act came into force," he said.
"The second option is an authorised hospital, and that's
only for a person with a treatable mental illness.
"And the third option, which is almost the option of
default, is that the person ends up in prison or in a juvenile detention
Ms Fulton's adult guardian, Mr Ian McKinlay updated the committee on Ms
Fulton's progress since this media report.
Now I come to the Rosie Anne Fulton case, which I provided
details on earlier. As I mention in the document provided, she was born with
fetal alcohol brain damage, and this was compounded by a life of abuse. She was
dumped by NT health after she ended up in indefinite prison-based supervision
in Kalgoorlie. She was forced back into the NT health domain by a media and
public outcry. This clearly caused resentment. It was reflected in the denial
of a transitional support plan earlier discussed. Instead, she was placed under
a clearly designed-to-fail support plan, which has seen her under conviction
for 70 per cent of the time since her return to the Northern Territory. She has
now lapsed into full-blown chemical addiction, and to all intents and purposes
she is back on the streets and at serious risk. Yesterday I found her drunk
with facial injuries; she was again bashed overnight and she appeared in court
today. This support hides behind a pretence of freedom of choice values that
contradicts repeated guardianship court findings that she lacks decision-making
capacity. The external pressure needed to compel NT Health to accept
responsibility for Rosie Anne has also been needed to maintain even tokenistic
levels of commitment, the latest re-engagement prompted by monitoring by the
Office of the Prime Minister and Cabinet plus the current Don Dale media coverage.
The Aboriginal Disability Justice Campaign (ADJC) noted that indefinite
detention of people with cognitive and/or psychiatric impairment predominantly
occurs in WA and the NT. The next section will explore the legal process that
leads to indefinite detention in these jurisdictions.
Part IIA of the Criminal Code Act (NT) (Criminal Code) provides
for alleged offenders to be deemed not guilty by way of mental impairment or
unfit to stand trial. There are two key elements within the Criminal Code which
lead to the indefinite detention of people with cognitive and psychiatric
impairment in prison. Firstly section 43ZC of the Criminal Code provides that
any supervision order (custodial or non-custodial) is 'for an indefinite term'.
Secondly, section 43ZA(2) of the Criminal Code provides that a 'Court must not
make a Custodial Supervision Order committing an accused person to custody in a
Correctional facility unless the Court is satisfied that there is no
As noted in Chapter 2, the NT is one of the few Australian jurisdictions
that still issues forensic orders with indefinite terms of duration.
Ostensibly, the NT Supreme Court conducts annual reviews in which it must
consider, amongst many things, the risk to any individual or the community if the
accused is released. However, this process essentially reverses the onus of
decision making from requiring a justification to detain, to requiring a
justification to release. This is shown in the release statistics: of the
sixty separate people to have had their cases reviewed by the court since 2002,
20 people have been released unconditionally at some point (five of whom were
released unconditionally prior to any custodial order). Currently, there are 36
people subject to a custodial or non-custodial supervision order.
Despite this review process, more than half of these 36 people remain subject
to custodial orders, with the majority living in correctional facilities.
The committee notes that the Criminal Code provides for the imposition
of fixed terms:
When first making a supervision order, the Court is required
is required to fix a term under section 43ZG which is equivalent to the
sentence of imprisonment the person would have received if the person had been
found guilty of the offence. The court may backdate the term fixed under
section 43ZG to when the person was first taken into custody.
However, the committee also notes that these fixed terms are nominal as
the fixed term is only a trigger for a major review. Supervision orders remain
an indefinite proposition.
As noted earlier, the Criminal Code states that a 'practicable
alternative' to prison must be sought in the first instance. Again, this
reverses the onus from a presumption of release triggered by a timeframe, to a
presumption of continued detention unless criteria are met. This is exacerbated
by the limited options for a practicable alternative in the NT. There is no
dedicated forensic mental health facility in a non-prison environment for
people held on custodial supervision orders. Currently, people subject to
custodial supervision orders can be held in the Complex Behaviour Unit (within
the walls of the Darwin Correctional Precinct), the Secure Care Facility (in
Alice Springs), or in prison. Witnesses at the Darwin hearing highlighted the
lack of appropriate supported accommodation in the community as the greatest
barrier to people on custodial supervision orders being transitioned out of
indefinite detention in prison.
Without practicable alternatives, people with cognitive and/or psychiatric
impairments will continue to be indefinitely detained in prisons. Supported
accommodation will be discussed in more detail in Chapter 5.
Similar to the NT legislation, the WA Criminal Law (Mentally Impaired
Accused Act 1996 (CLMIA Act) provides for two pathways for a person found
unfit to plead—unconditional release or a custody order. If a custody order is
imposed on a person with a cognitive impairment they can either be placed in
prison or in a declared place.
The first, and only declared place in WA—Bennett Brook Disability
Justice Centre (DJC)—was completed late last year.
Until its completion, the only alternative was prison. Since its opening, two
residents have successfully transitioned back into the community; two residents
currently live in the DJC; and two prospective residents are being considered
for placement in the DJC.
This compares with the fifteen people being held in WA prisons on custody
orders. Clearly, despite the opening of the DJC, which has a capacity for ten
people, there are still significant numbers of people being held indefinitely
During its Perth hearing, the committee received evidence highlighting
that under the CLMIA Act there is no provision for the judiciary to recommend
that an alleged offender deemed unfit to plead is placed directly into a
declared place. Placement in a declared place can only occur through a Mentally
Impaired review Board (MIARB) review which is held after a custody order has
been imposed by the court.
This means that the CLMIA Act itself restricts the judiciary from placing
people into an appropriate therapeutic environment in the first instance.
Chief Justice Martin explained the challenges he, and other judicial
officers, face when dealing with cases under the CLMIA Act with no third option
between unconditional release and prison:
There was an allegation of inappropriate behaviour of a lower
order with children. He was a management risk. It was very low order
seriousness offending. He was a management risk. He could be managed in his
community, if there were conditions imposed about where he would live and not
going near the school and those sorts of things. But I could not impose those
conditions, so I had to either take a punt to lock him up indefinitely, which I
was not prepared to do because his behaviour just was not that serious, or take
a punt and hope that the community itself would impose those conditions on him.
The evidence I got was that the community were aware of his needs. There were a
couple of relatives who were going to step up and look after him, and so I took
the punt. But we should not have to take a punt in cases like that. We should
have had the option of saying, 'I'm not going to put you into custody, but here
are the conditions you have to live by, and if you breach those conditions then
some action could be taken.'
More often than not though, courts err in the other direction and impose
a custodial sentence:
The problem is where you do not have any middle ground—it is
either unconditional release or custody—you get to custody much quicker than
you would if there were some opportunities in the middle.
Legal capacity and support to engage with the court system
This section discusses how a person with cognitive and/or psychiatric
impairment might be empowered to engage with the legal system. The committee
examines the concept of legal capacity and the fundamental principle that a
person should not have their legal capacity removed simply on the basis of
As noted earlier in this chapter, the current sentencing practices in
the NT and WA remove legal capacity when an 'unfit to plead' ruling is made and
this displacement often leads to indefinite detention. In many circumstances, people
who would normally be classified as unfit to plead—and their defendants—choose
to plead guilty to crimes in order to be sentenced to a defined period as
opposed to an indefinite sentence as a forensic patient.
Evidence was provided to the inquiry about alternative approaches such
as specialist support workers to assist someone during the legal process and
also the use of specialist courts as a means to better support people with
cognitive and psychiatric impairment through the legal process.
Legal capacity is defined as 'a person's power or possibility to act
within the framework of the legal system'.
An element of legal capacity relevant to forensic law is legal standing 'in the
sense of being viewed as a person before the law'.
The practical application of this is described in more detail in chapter 2;
however, in essence, legal standing applies to those deemed (by a legal
process) as 'unfit to plead' and detained under forensic and criminal orders.
In a 2014 paper, Professor Bernadette McSherry highlighted the two main
mechanisms that displace legal capacity:
(1) The status approach focuses on a certain
characteristic of the person in order to find that the person lacks capacity.
Hence, having a particular disability—in particular having a severe mental or
intellectual impairment—has led to an automatic loss of legal capacity in both
terms of legal standing and legal agency.
(2) The cognitive approach focuses on assessing the
decision-making abilities of the individual concerned. The cognitive approach
encompasses the notion of 'mental capacity' or 'mental competence', the latter
term being used most often in North America.
As noted above and in Chapter 2, the legal capacity and legal agency of
many people has been, and continues to be, removed on the basis of their
cognitive and/or psychiatric impairments, in some cases resulting, in the
involuntary detention of these people. However, Article 12 of the United
Nations Convention on the Rights of Persons with Disabilities (CRPD) states
that 'State Parties shall recognize that persons with disabilities enjoy legal
capacity on an equal basis with others in all aspects of life'.
Furthermore, Article 14 of the CRPD states that persons with disabilities, on
an equal basis with others:
- Enjoy the right to liberty and security of person;
- Are not deprived of their liberty unlawfully or
arbitrarily, and that any deprivation of liberty is in conformity with the law,
and that the existence of a disability shall in no case justify a deprivation
As noted previously in this report, state and territory legislation
currently allows for people to be involuntarily detained for forensic or mental
health reasons on the basis of cognitive and/or psychiatric impairments.
The committee agrees with the evidence that a person's legal standing
should not be removed on the basis of a disability. Where possible,
participation in the legal process should be encouraged for all people. Support
programs which assist and improve such participation are discussed later in
Outcomes of displacing legal
Witnesses and submitters, including the NT Government Solicitor,
acknowledged the perverse incentive that exists where a person pleads guilty
(even to a crime that they have not committed) in order to receive a defined
shorter period of time in prison rather than an indefinite period on a
custodial supervision order.
At the early times that part IIA was in place, there was
certainly a very severe reluctance on the part of defence counsel to go
anywhere near part IIA because of the fear of indefinite incarceration. It is
certainly also the case that there have been some persons who have served
longer in a correctional facility—I say 'served', although they are not serving
a sentence but they have been detained there in custody—than they would
otherwise have been there, had they been able to plead guilty.
The Chief Justice of WA concurred:
There are very significant implications for criminal practice
in this state, in particular individuals who plead guilty despite their
impairment or their disability because they do not want to take the risk of
being detained in custody indefinitely, possibly for a period longer than they
would serve if convicted of an offence on a plea of guilty. As a consequence of
that, the legal profession of this state is understandably reluctant to bring
clients within the scope of the act. I am sure that there are cases in which
proper legal advice is to a client to plead guilty rather than raise the
question of the act and take the risk of indefinite detention.
The Aboriginal Legal Service of WA (ALSWA) agreed, noting that despite
'ethical and professional obligations to clients...we run from fitness to plead
at a million miles per hour'.
In its submission, Office of the Public Advocate (QLD) provided many examples
where the period of time that someone can expect to spend in a forensic
facility or indefinitely in prison if they are deemed unfit to plead is
sometimes double that of a custodial sentence.
Submitters have argued that there are many cases where people, with an
appropriate level of support, could be expected to engage with the legal system
and avoid being deemed unfit to plead. At the committee's Brisbane hearing, Mr
Simon Wardale, the Director of Forensic Disability at the Queensland Department
of Communities, Child Safety and Disability Services, noted:
I certainly would not doubt the determination of the court,
but what I saw was people with very, very mild intellectual disabilities being
found unfit to plead.' And also where people are pleading guilty out of
The committee received evidence supporting this move away from people
being found unfit to plead through the provision of supports:
Most of the critiques of fitness-to-stand-trial laws across
the country—I am thinking particularly of some of the work done out of the
University of Melbourne—would basically argue that we should be doing
everything we can to minimise the notion of people not being found fit, so we
should be adapting our court processes to ensure that we are doing everything
possible to get rid of the need for people to be found unfit. I do not think we
could say in any way that we are doing everything we can to create environments
where we assume capacity and we are supporting people as effectively as
possible to plead. Then, once you have a regime that does everything it can to
avoid people being found unfit, you have to get rid of these inherent
injustices which are always going to create a legal barrier, I suppose, to
people navigating the process as they would with someone who did not have a
The committee is concerned that there is potentially a large group of
people who, in the normal course of events would be found unfit to plead, but
in an effort to avoid indefinite detention in prison are choosing to plead
guilty, even to crimes they have not committed. The committee is concerned that
these people's cognitive and/or psychiatric impairments are being criminalised
and that they are not being provided with access to appropriate supports.
The next section will examine a range of initiatives that seek to
improve participation in the legal system for alleged offenders with cognitive
Access to justice—Participation in,
and support for alleged offenders during legal proceedings
One of the issues that arises when a court deems a person to be unfit to
plead or stand trial, is that consideration is often not given to whether that
person is indeed guilty or likely to be found guilty. This next section looks
at some of the reasons why providing support and improving participation in
legal proceedings for alleged offenders can result in improved outcomes with an
examination of examples of such programs. Importantly, improved participation
through support may lead to fewer forensic orders, diversion to genuine
supported accommodation and therapy, and ultimately, less people being indefinitely
The committee has received evidence suggesting that the current legal
process does not support people with cognitive and/or psychiatric impairment to
understand what actions they are accused of committing. ALSWA noted that:
the reflex reaction of so many offenders is to blame someone
else: 'It's the victim's fault,' or, 'It's my co-offender's fault.' Things get
off on a bad footing from the word go, because that then dovetails into a
refusal to accept responsibility, a lack of insight into their offending
behaviour, a lack of victim empathy and therefore a lack of remorse. So things
are heading south from a sentencing point of view from the word go.
ALSWA further noted that the presence of an Aboriginal and Torres Strait
Islander support worker may lead to improved outcomes as this early point of
interaction with the criminal justice system.
But if you had an Aboriginal person there, either as a
support or as the person who is actually doing the report, hopefully there
would be some sort of rapport established and the person would not be so
reflexively defensive from the word go.
In its submission, Jesuit Social Services provided a case study from its
Enabling Justice Acquired Brain Injury Project that illustrates the
practical benefits of supporting a person with cognitive and/or psychiatric
impairment through the legal process:
Only after my last offence have I ever got an ITP
[Independent Third Party]. So everything prior, I went to court about once a
year, every year, since I've been 16 years old... It [having the ITP] changed the
ways the police asked the questions. I think they were a lot more softer,
softly spoken. Rather than in an interview room by yourself with a police
officer and he's very daunting. Knowing that you had an independent third
person there, you realise yourself that you’re not capable of answering the
questions correctly. So you're very slow on answering, double checking, saying
to the person, 'Is this what they said? Is this what they want to know?' as you
get very daunted.
A 2009 paper by the Law and Justice Foundation of NSW noted that 'once
in the criminal justice and correctional systems, people with cognitive
impairment appear vulnerable to extended and repeat incarceration'.
There are many barriers to legal assistance and legal processes for people with
cognitive and/or psychiatric impairments including the 'intimidating and
alienating atmosphere of the courtroom'. Other barriers include:
cross-examination techniques undermining the confidence and
credibility of an offender;
length and formality of proceedings; and
participation in proceedings that they do not understand.
In January 2016, the Law Commission of England and Wales completed its
inquiry into "unfitness to plead" laws in the United Kingdom (UK). In
its report, it recommended a reform to the test of unfitness whereby:
the test for capacity to participate effectively in a trial
should require the defendant to be able to participate effectively "in the
proceedings on the offence or offences charged", and that assessment of
the defendant’s abilities in that regard should reflect consideration of the
Furthermore, it also recommended that intermediary assistance and other
assistance mechanisms should be deployed by courts to enable effective
participation in court proceedings, where appropriate.
At the committee's Brisbane hearing, Mr Patrick McGee, Co-ordinator of
the ADJC, indicated his support for the UK Law Commission's recommendations:
[P]eople with cognitive impairments should be provided with
the level of support needed to fully participate in the legal process. Where
they are unable to participate in the legal process due to their impairment,
the process should not be a legal response but rather a social response. Basically,
what they said was this: there should be a 'full trial wherever fair and
practicable'; 'accurate and efficient identification of defendants who cannot
participate effectively in the trial' should occur; there should be 'diversion
out of the criminal justice process where appropriate'; there should be 'fair
procedures for scrutinising the allegation'; and there should be 'effective and
robust community disposals'. Basically, they are saying: 'You know what? If you
can't actually participate in the legal process'—which is the design of the
mental impairment process—'then you shouldn't be before a court and you
certainly shouldn't be detained in jail as a result of that process.'
In its 2013 consultation paper, the Victorian Law Reform Commission
described some of the key characteristics of this new test, with the new test
requiring an accused person to:
the information relevant to the decisions that they will have to make in the
course of the trial—for example, an accused person with an acquired brain
injury who has very low cognitive ability and is unable to understand new or
unfamiliar information would be unfit to stand trial.
that information—for example, someone with Attention-Deficit Hyperactivity
Disorder (ADHD) who cannot focus and finds it almost impossible to remember any
new information given to them would be unfit to stand trial.
or weigh that information as part of a decision-making process—for example,
an accused person who suffers from paranoid schizophrenia who has a factual
understanding of the charge, but indicates to the court that he wants to plead
guilty because he sees no point in pleading not guilty as everyone in court is
part of a conspiracy, would be unfit to stand trial.
their decisions—for example, an accused person with autism who is able to
understand information and process it but does not acknowledge others, may be
unfit to stand trial.
Innovative programs supporting people
with cognitive and/or psychiatric impairment in the justice system
In a previous report, the committee acknowledged the positive work
undertaken in South Australia, including by the police, in developing a
Disability Justice Plan.
This plan is intended to support people with disability in the corrections and
court systems, and focus on the needs of people with disability who participate
in legal proceedings as a witness or as an alleged offender.
Notwithstanding this, the committee received evidence from Ms Anna Tree
of Dignity for Disability on the need for more resources to properly implement
the Disability Justice Plan, including education for all levels of the justice
system. Ms Tree also highlighted problems with the use of volunteer workers who
assist police and court officials to better recognise and support the needs of
people with cognitive and psychiatric impairment in the justice system. Ms Tree
argued that programs of this kind require specialist trained professional staff'.
During this inquiry the committee has received evidence on a range of
innovative programs which provide supported legal decision making to people
with cognitive and psychiatric impairment. These programs and projects are
being trialled in some cases or more broadly implemented in others. The most
successful characteristics of each of these programs is that they firstly
facilitate a better understanding of the legal process and the specific charges
that a person is alleged to have committed. A support person can also provide
an opportunity to divert people with cognitive and psychiatric impairment away
from the criminal justice system to receive therapeutic and other services.
Ideally, a support person can provide case management or at least identify the
need for a range of supports to be provided co-operatively by the different government
departments. This section will focus on several examples of initiatives which
provide such support to people with cognitive and/or psychiatric impairment
that engage with the court system.
The University of Melbourne and University of New South Wales have
received funding for a two year project (2015–2017) to develop practical and
legal solutions to the problem of people with cognitive impairments, including Aboriginal
and Torres Strait Islander people with cognitive impairments, being found
"unfit to plead" and subject to indefinite detention in Australia. A
secondary aim is to better ensure that people with cognitive disabilities can
meaningfully participate, on an equal basis with others, in criminal
proceedings brought against them.
A more detailed explanation of this project and its benefits can be found in
Box 3.1: Unfitness
to plead project
The researchers from the University of
New South Wales and University of Melbourne have partnered with the North
Australian Aboriginal Justice Agency (NT), the Intellectual Disability Rights
Service (NSW), and a Victorian legal aid service to identify Aboriginal and
Torres Strait Islander peoples and non-Indigenous people with cognitive
impairments charged with a crime and provide support to them. The project is
planning to support approximately 20 people (per service) in each jurisdiction.
The objective of this project is to:
- analyse the social, legal and policy
issues leading to unfitness to plead findings and indefinite detention in
Australia, with a focus on the experiences of Aboriginal and Torres Strait
- provide and evaluate supported
decision-making for up to
60 individuals with cognitive impairments who have been charged with a crime
and who may be subject to unfitness to plead processes; and
- recommend options for the reform of
unfitness to plead law and policy.
The expected outcomes will be:
- analysis of the differences and
similarities in unfitness to plead laws and policy across the Australian states
- creation of good practice model(s) in
supported decision-making in the
criminal justice context that can be used in Australia and abroad; and
- creation of recommendations for law
and policy reform in compliance with human rights standards.
The support is through a flexible
supported decision-making model
adapted from a model developed by the South Australian Office of the Public
Advocate. The model includes the creation of a role for a 'supporter' for
supervision and supportbeing provided by the post-doctoral
researcher and the relevant, local legal agency. People with cognitive
impairments, including Aboriginal and Torres Strait Islander peoples, are contributing
to the development of the supported decision-making model through the advisory panel,
which meets for tele-meetings
approximately three times per year for the duration of the project. The advisory
panel is comprised of Disabled Peoples Organisations representatives, community
experts, and academics.
As an example, the support worker will
'coordinate meetings between relevant people and services', pursue 'reports
from various government and non-government agencies' and 'assisting a person to
attend a psych assessment to see whether or not they are unfit to stand trial
or even referring clients to relevant services'.
Dr Piers Gooding, Postdoctoral Research
Fellow, Disability Research Initiative, Melbourne Social Equity Institute,
Melbourne Law School, University of Melbourne, Committee Hansard,
Darwin, 25 October 2016, p. 2; Submission 5. The project is funded as part of the Australian
Government Department of Social Services, National Disability Research and
Development Research Scheme.
Dr Piers Gooding, a post-doctoral researcher on this project outlined
some of the practical supports offered by this project:
The type of support that they provided to clients with disabilities
was varied and included providing
communication aids, including plain language materials; sometimes sitting with the person in
court and helping them to follow along;
or even just providing emotional support for people who were appearing
before courts. Sometimes the supporters would call persons to remind them about
legal appointments, which was particularly important for some people with
cognitive disabilities who could miss appointments, which would cause unnecessary delay. Sometimes supporters
would remind lawyers and others to speak in plain language, and they would also
model what it means to do so.
Preliminary cost-benefit findings from this pilot program indicate there
are significant net financial savings throughout the court process alone in
providing a supporter. A normal guilty plea to avoid an unfitness finding in a
NT court is estimated to cost $5 619. This compares to an unfitness to plead
finding which can cost in excess of $16 000. An actual outcome using a support
worker to assist an individual to navigate the court process is estimated to
cost $5 068.
It is the committee's view that people with cognitive and/or psychiatric
impairments can and should be supported to engage with the court process. There
are many successful, but disparate, examples of this type of support. It is the
committee's view that appropriate resources should be allocated to expand these
programs to reach all people likely to be subject to forensic orders.
Specialist courts and diversion
The committee has heard evidence that some jurisdictions are trialling
or have implemented a new approach to diverting people with cognitive and
psychiatric impairment through the use of specialist courts, which provide a
more 'therapeutic jurisprudence' rather than the traditional punitive approach.
Specialist courts are able to better recognise and support the needs of people
with cognitive and psychiatric impairment in the justice system. This section
examines a number of specialist court examples which are used around the
Examples of specialist court
The committee has received significant evidence outlining many different
models of specialist courts which are operated around the country, either as
pilot programs or on-going elements of the court system in some states.
In Queensland, the Queensland Mental Health Court (MHC) is part of the
Supreme Court of Queensland. Typically, criminal cases can be referred to the
MHC 'if it is believed that the alleged offender is mentally ill, was mentally
ill, has an intellectual disability, or at the relevant time was deprived of a
relevant capacity'. The MHC has two main purposes. One is 'to decide whether an
alleged offender was of unsound mind when they committed an offence. The second
function is to hear appeals from the Mental Health Tribunal and make inquiries
into whether someone is being lawfully detained in authorised mental health
Currently in Western Australia, there are two diversionary programs
operated as part of the Magistrates Court—the Intellectual Disability Diversion
Program (IDDP), and the Specialist Treatment and Referral Team (Start) court.
The objective of the IDPP is 'to reduce recidivism among the
intellectually disabled offender group, to reduce the rate of imprisonment by
diversion and appropriate dispositions and to generally improve the ways in
which the justice system deals with intellectually disabled offenders'.
The Start Court is part of the magistrates court in Western Australia.
Established in early 2013, this initiative sought 'to provide more options for
people in court with mental illness and more capacity for the court to respond
in ways that support people whilst addressing their offending behaviour'. This
program also operates a similar children's program in the Perth Children's
Referrals are made from the magistrates court. The Start Court aims to achieve
To increase an individual’s connection with treatment support
services and re-engage individuals with the most appropriate services to help
manage their mental illness.
To find a therapeutic solution to address offending behaviour in
a manner which helps an individual manage their mental health issues and make
positive changes to their life to help reduce the likelihood of future contact
with the criminal justice system.
To increase public safety and ensure those with mental health
issues who need help receive it.
At face value, these two Western Australian programs appear to offer a
more tailored approach for people with cognitive and/or psychiatric
impairments. However, these programs do not seem to reach out to remote, Aboriginal and Torres Strait
Islander communities. In his submission to the committee, Professor
Harry Blagg of the University of Western Australia has proposed the concept of
mobile needs focused courts that could be developed for, and deployed in remote
Kimberley area of WA. These courts would be based in part on the Victorian
Koori court model and the Neighbourhood Justice Centre, used in Collingwood.
Importantly, this needs based approach 'shifts the focus from processing
offenders to identifying solutions and places emphasis on: the co-location of
services; a trauma informed practice; a no wrong door approach to treatment;
and respect for Aboriginal
and Torres Strait Islander knowledge'. The essential components of this
type of court are:
Single magistrate (ideally with a deep understanding of local
A 'lite' screening tool that can be administered by local social
workers and psychologists);
Rapid entry into a treatment program and provision of necessary
The use of 'on-country' alternative punishment options.
Mr Peter Collins of the ALSWA argued for the introduction of Aboriginal
Courts as used in places like Victoria. Mr Collins noted that the:
whole process of sentencing Aboriginal people without the engagement
of Aboriginal people in the process is largely meaningless. People just cycle
through the system endlessly and, at the end of the day, as I said earlier, the
protection of the community completely falls away. We could really do with
Aboriginal sentencing courts in the Supreme Court, in the District Court, in all
of the regional circuit courts, in the Magistrates Court—on it goes. And, as
part of that, they could have a role with people who are enmeshed in the
mentally impaired domain. If we are not going to do that, things will not
change, and they will probably get worse.
The Darwin Magistrates Court (NT) has recently introduced a trial
'mental health list' which ensures that 'all cases which issues of mental
impairment or fitness for trial are raised are being referred to the list so
that they can be given special consideration and oversight'.
In its submission to the committee, the Victorian Ombudsman noted the
use of the Assessment and Referral Court (ARC) List used in the Melbourne
Magistrates Court. The ARC list is used 'to assist defendants on bail experiencing
mental illness or cognitive impairment (including ABI), by addressing the
underlying causes of their behaviour through facilitating access to treatment
and support services'. The Victorian Department of Justice and Regulation noted
that its internal independent evaluation of this program found that the ARC
List had a 'return on investment of between $2 and $5 for every dollar [spent],
when compared to the costs of imprisonment'.
The Victorian Ombudsman made the following observation:
I noted that despite evidence of the results such programs
are achieving and their return on investment, the funding historically made
available to them has been very limited compared to the spending in the
corrections system more broadly.
The role of specialist courts is not to ignore offending and illegal
behaviour; rather, it is to ensure that such behaviour is acknowledged in
concert with appropriate therapeutic supports and services, as described by Mr
Daniel Clements of Jesuit Social Services (JSS):
We would probably argue that there is an opportunity to think
about restorative practice and restorative processes that support the
individual to better understand the impact of the offending on families and on
community, and that can work parallel to targeted, purposeful, tailored case
In addition to supports for people engaging with the court system,
Professor Harry Blagg noted that 'diversionary practices favour the least
intrusive option at any point of interaction between an accused person and the
In its submission, JSS also raised diversion programs that utilise
restorative justice principles. These approaches 'seek to hold the offenders to
account for their actions and to provide them with the opportunity to restore
their broken relationship with the victim, the community and in many cases,
their own family'.
JSS went further and noted:
The creation of diversion programs targeting people with
cognitive impairment at a pre-plea or presentence stage could prevent people
entering prison and experiencing isolation from community connections and
primary care givers, as well as preventing the harm that many people experience
in prison. Diversion programs have the capacity to more effectively prevent
further reoffending, by addressing the risk factors that contribute to a
person’s involvement in the justice system.
JSS highlighted a comparative analysis of its Youth Justice Group
Conferencing diversion program in which 80 per cent of participants had not
re-offended after two years as opposed to over half of those sentenced to youth
detention who had re-offended.
During the committee's Brisbane hearing, Mr Simon Wardale highlighted
Victoria as having a best practice model for the provision of support and
diversionary services for people with cognitive impairment.
Mr Wardale firstly explained the legislative amendment that the Victorian
Government undertook, and the policy response that was implemented to
complement this change:
The Sentencing Act in Victoria was amended some time ago to
allow community based orders to waive the obligation for community work and
require the person with a disability to participate in support and therapeutic
That was a change in the legislation. What happened from a
policy perspective then was that the state based disability service department
developed the requisite capacity and expertise to make those recommendations
and put them before the court. So the court immediately had an option and it
was not linked to the significance of the disability, which is where we get our
'unfitness' and 'unsoundness' sorts of determinations, which often result in
indefinite detention. I am happy to talk about this in more detail. But in this
example it was just a sentencing option available to a magistrate. The
legislation was changed and the policy response emerged to be able to
facilitate the effective implementation of that legislation.
Mr Wardale went further, describing the establishment of the Victorian
Disability Forensic Assessment and Treatment Service which has provided for the
integration of disability, correctional services, and diversionary services for
people with cognitive impairment:
The other thing that happened that I think is a good example
of the Victorian system is that the state based disability service department
developed a response to offenders with an intellectual disability through the
Disability Forensic Assessment and Treatment Service. That is a secure service
that is based in Fairfield, and people can find themselves in that service
either through sentencing or as a function of the Disability Act. But what that
service did as well was outreach clinical support in Marlborough prison and
Loddon-Mallee prison, provided case management support as part of both of those
outreach options and also established a clinical position that was there to
support the various departmental regions across the state that were supporting
offenders with an intellectual disability.
So what we had was a hub of expertise created that then
interfaced with the correctional system and with regional disability service
systems so that we did not have clogged service, if that makes sense, where
people went to live but there was nowhere for them to move out to and no
effective response to their needs in the community. To my mind, that also
underlies some of the challenges with the interface principles as they are
currently written in terms of correctional response to people with intellectual
disability, because in Victoria the correctional response is entirely caused by
the disability service response.
Diversionary programs are discussed further in Chapter 5.
The committee has heard evidence of examples of specialist courts and
diversion programs throughout this inquiry. Elements of these models could be
adapted and utilised in WA and the NT to provide more appropriate supports for
people with cognitive and/or psychiatric impairment and as a mechanism to
divert these people from the criminal justice system.
Specialist courts provide one mechanism to divert people with cognitive and/or
psychiatric impairments from the criminal justice system to more appropriate
therapeutic supported environments. The committee is heartened by the 'mental
health list' trials in the Darwin Magistrates Court; however acknowledges that
this is not a legislated requirement and hence relies on individual people in
the magistrates court to ensure its continuation or expansion. The committee
considers that the 'mental health list' is an important initiative with the
potential to help ensure that people with cognitive and/or psychiatric
impairment are diverted from the criminal justice system, diagnosed and
provided with appropriate supports. Consideration should be given to whether
this initiative and ones like it could be continued and expanded across the NT,
particularly in more remote locations, and implemented in other jurisdictions.
The committee is concerned by the lack of culturally and locally
appropriate court services for regional and remote populations, particularly
for Aboriginal and Torres Strait Islander peoples. The IDPP and Start Court
initiatives in Perth are an important method for identifying and diagnosing alleged
offenders with mental or psychiatric impairment; however, do not reach out to
the vast majority of that state. The committee is of the view that remote,
mobile courts—as described by Professor Harry Blagg—may be an appropriate way
for the criminal justice system to reach out to remote Aboriginal and Torres Strait Islander communities.
Such mobile courts could deal with alleged criminal activity in a culturally
appropriate way that acknowledges the inappropriateness of any proven negative
behaviours and then provides a suitable therapeutic on-country pathway forward.
Culturally appropriate responses and pathways to country are discussed
in more detail in Chapter 5. The role that screening and diagnostic tools can
play within the court system as a means to diagnose a person's disability and
provide more information to a court officer is discussed in the next section.
As noted in Chapter 2, the NT, WA and Victoria (VIC) are the only
Australian jurisdictions that do not place limits on detention for those people
subject to forensic orders. Many submitters and witnesses to this inquiry have
highlighted the 'need for limits on the period of detention that can be
Limiting terms was a key recommendation of the Australian Law Reform
Commission's report Equality, Capacity and Disability in Commonwealth Laws.
The North Australian Aboriginal Justice Agency (NAAJA) agreed noting that 'the
priority for any legislative change should be the introduction of 'limiting
terms', in place of supervision orders. Further, NAAJA argued that 'the length
of any term should be dictated by the need to protect the community, balanced
against the principle that a person's liberty should be subject to the minimum
The ADJC agreed with the sentiments of this recommendation, noting that
limiting terms are a practical alternative to indefinite detention. NSW was
cited as an example where limiting terms 'prevents a person found unfit to be
tried being imprisoned for longer than if he or she had been convicted of the
offence'. The University of Western Australia is also
supportive of statutorily prescribed limited terms similar to New Zealand or
for 'courts, like on the east coast, who have the ability to say what the best
estimate is of the sentence that we would have given someone and then go with
that best estimate'.
As noted earlier in this chapter, all supervision orders in the NT must
be handed down with a nominal fixed term. This fixed term forms the timeframe for
the first major review of that order; it does not mean removal from prison.
As Mr Russell Goldflam, President of the Criminal Lawyers Association of NT
As an example, I currently act for a client who engaged in
conduct contrary to the Northern Territory Criminal Code back in March 2011. He
was acutely psychotic at the time. Indeed, he engaged in the conduct while an
involuntary patient in the psychiatric ward of the Alice Springs Hospital. He
was eventually found not guilty by way of mental impairment and placed on a
Part IIA custodial supervision order. The judge fixed a term of three months,
being the sentence he would have imposed had my client been convicted of the
offence. By that time, he had already served seven months, but he was not released
from prison for a further seven months, essentially, because no suitable
community-based placement had been arranged or funded. Since then, he has been
on a non-custodial supervision order for the last two years and three months,
which significantly curtails his freedom. He is not permitted to leave the home
he lives in without an escort. Physically and mentally, he is going nowhere. If
we can stitch together a robust care plan for him, the judge managing his case
has indicated that he will consider discharging my client soon. In the
meantime, he has endured 3½ years of restricted liberty for engaging in
misconduct which the court found justified a sentence of three months'
imprisonment. This is obviously unfortunate and unsatisfactory, and, arguably,
unfair. But my client is difficult to manage in the community. He was released
on bail some years ago and promptly absconded. While at large, he resumed the
sort of conduct that had brought him to the attention of police in the first
place. However, in my view, even under the current law, my client could, and
should, have had his liberty restored much more quickly. What prevented this
was the lack of access to better, more coordinated, more pro-active service
providers who work together to positively plan for the restoration of his
liberty and not wait for a judge to give them a nudge to do so. That is just
one example, but, in my submission, it is illustrative and instructive.
This circular and frustrating type of evidence has become familiar to
the committee throughout this inquiry. Nominally, pathways exist for people in
both the NT and WA; however, in practice is leading to poor, unintended
outcomes. As it stands now, a person is found unfit to plead and placed on a
forensic order; a lack of suitable supported accommodation options results in a
person being placed in prison; little or no support services are provided in
prison resulting in static or regressive behaviours; regular reviews are
conducted, but as that person shows little sign of improvement, they remain in
NAAJA noted that the use of limited terms will 'more clearly place an
onus on government to justify continuing any restriction on a person's
If a government is placed in a position where detention in a prison is no
longer an option, that government's efforts will be focused on ensuring that
appropriate accommodation is provided in the community prior to the release of
The current legislative approach in WA and the NT is inadequate. In the
absence of appropriate supported accommodation options for people on forensic
(custodial) orders, a 'custody by default' model is adopted instead.
The introduction of limiting terms would drive a shift in these jurisdictions
by shifting the onus from the 'custody by default' model to one where
government must actively plan where a person will be placed at the end of their
limiting term. As such, it is the committee's view that limiting terms could be
an effective mechanism to prevent the indefinite incarceration of people with
cognitive and/or psychiatric impairment when applied in concert with access to
appropriate therapeutic programs whilst in prison.
The committee also notes that law reform is required in the NT and WA.
Such reform would provide greater flexibility—described as a 'middle ground' by
the Chief Justice of WA —to the judiciary when considering and handing down
forensic orders and prevent unnecessary incarceration in prison.
Screening and diagnostic tools
Specialist courts and other diversion programs are only useful when a
person's disability is appropriately identified. However, many people with
cognitive and/or psychiatric impairment are not aware of their disability at
the time they are brought into contact with the criminal justice system. Without
refined screening and diagnostic tools, specialist courts and support workers are
unable to identify people with a cognitive and/or psychiatric impairment and
are unable to identify the specifics of the individual's disability, which can
help inform the court and support workers about the needs and the most
appropriate pathway for each alleged offender with cognitive and psychiatric
impairment. This section looks at the role of screening and diagnostic tools
with a specific focus on Foetal Alcohol Spectrum Disorders (FASD).
The committee has received evidence about the importance of screening
and diagnostic tools for use when people first interact with the criminal
justice system. This can be at the court or on entry to prison. The aim of
these tools is to provide support and diversion for people with cognitive and/or
psychiatric impairments. Dr Glenn Jessop from Jesuit Social Services
highlighted the importance of:
...appropriately resourced, accessible and specialised
assessment and screening tools at all key points of the justice system...We
believe diagnosis and therapeutic support at the earliest opportunity would
reduce the likelihood of further contact with the criminal justice system as
well as ensuring compliance with Australian human rights obligations.
Currently, in Victoria, prisoners do not undergo formal screening
and assessment for cognitive impairment such as Acquired Brain Injury
(ABI)—despite the presence of a diagnostic tool developed by Corrections
Victoria. The Victorian Ombudsman submitted:
In Victoria at present, prisoners are not routinely screened
for an ABI at reception. As a result, the responsibility for identifying a
prisoner can fall to a number of different staff members, not just specialists.
Staff are required to refer prisoners for a screening where they ‘suspect’ a
cognitive impairment based on a prisoner’s behaviour or interactions, or where
a prisoner discloses that they have an ABI.
This compares with NSW where 'all adults in custody undergo screening
for disability (including cognitive, sensory, physical) and mental illness'.
The results of these assessments are centrally available to all corrections
officers and helps inform daily management and even referrals to the NDIS and
state disability services.
As noted in the previous section on specialist courts, the 'mental
health list' at Darwin Magistrate Court provides an initial screening and
assessment for offenders by a court-based mental health clinician. This process
helps provide an:
an early indication of possible mental health or cognitive
impairment issues and allowing for cases to be more efficiently progressed (for
example, by providing a preliminary view that a person may or may not have a defence
of mental impairment available).
More broadly, the Australian Medical Association recommended that
screening of all prisoners should also be conducted upon admission to prison
'from a medical practitioner for physical, addiction-related and psychiatric
disorders, and potential suicide risk. These screenings should also include 'evaluation
of substance use, hearing loss, acquired brain injury, intellectual disability
and other cognitive disabilities' as a guide to determine appropriate
The next section will focus on screening and diagnostics for people with FASD.
Foetal Alcohol Spectrum Disorders
As described in Chapter 2, FASD is 'an umbrella term used to describe a
range of physical and cognitive, behavioural and neurodevelopmental abnormalities
that result from exposure to alcohol in utero'.
The cognitive impairment caused by FASD can lead to a wide range of behaviours
including ones which result in a person being brought into contact with the
criminal justice system.
In its submission, the Law Council of Australia recommended 'that all
governments invest in methods to ensure the detection and treatment of Foetal
Alcohol Spectrum Disorders (FASD) and other disabilities' which lead to
detention, especially for Aboriginal and Torres Strait Islander peoples.
Professor Blagg from the University of Western Australia expressed his support
...better diversionary programs that redirect young people with
FASD out of the justice system at an early stage. However, on the basis of our
research we feel that, to be effective, diversion for Indigenous young people
with FASD must involve diversion into Indigenous owned, non-stigmatising,
therapeutic alternatives, particularly in the emerging sphere of Indigenous
on-country initiatives. So ours is what we call a country centric model... We
think some kind of hybrid of the Neighbourhood Justice Centre model in
Melbourne and the Aboriginal court would serve to increase the rate of
diversion at the front end and also provide much needed services.
At its Perth hearing, the committee was told an all too common story of
undiagnosed FASD by Mr Peter Collins, Director at the ALSWA:
This was a young boy who was raised by a concerned, devoted
grandmother, who lived next door to his natural parents, who were caught in the
vortex of acute alcohol and drug abuse, domestic violence and dysfunction. The
court reports spoke heartbreakingly of the fact that his parents lived next
door to him and months, and sometimes years, would go by when they did not say
anything to their young son. Eventually the penny dropped. It took way too
long, but he was assessed with a provisional diagnosis of FASD. By then it was
too late: he was 17 years old, he had committed some extremely serious offences
of violence and was sentenced to a lengthy term of imprisonment. Worse still,
he was angry, he was embittered and he was disaffected. The waste of human life
was palpable. One of his teachers at the Clontarf college in Kununurra said he
was the best junior AFL footballer he had ever seen. He is never going to
realise that potential, because he will be behind bars.
The importance of early diagnosis was underscored by Professor Raelyn
Mutch of Telethon Kids Institute at the committee's Perth hearing:
There is recognition of the need to understand why the child
is having problems...Consistently, across the young people that we are meeting,
they are running into problems very early on and in primary school. They are
being perceived to be naughty rather than understood as having a learning difficulty.
If, at that early stage, they were assessed appropriately then that may enable
them to be taught through their strengths. And if they were taught through
their strengths they would be less likely to fail, because that recognition is
not happening at that stage, then they are acting up very early on and failing
at high school and disengaging, and then that is when they become engaged with
Telethon Kids Institute noted in its evidence to the committee
that it has recently completed the development of the first Australian FASD
diagnosis tool. Diagnosis of this complex cognitive impairment is the first
step in preventing a person with FASD 'having the life trajectory that brings
them into early engagement with justice systems and mental health facilities'.
Ideally such diagnosis would occur prior to a person interacting with the
justice system; however, at the very least,
health, language, cognition and social wellbeing assessments' including FASD
screening should be made available 'for all children and youth at their very
first point of contact with the juvenile justice system'.
Screening of people with cognitive and/or psychiatric impairments needs
to be made a priority, particularly for those with severe impairments such as
FASD, to ensure that the judiciary can make early informed choices about
diversion and therapeutic treatment for this group of vulnerable Australians.
The completion of the FASD diagnosis tool provides an ideal opportunity to
provide this as a supported resource to courts, legal aid and other related
The committee considers that all jurisdictions should adopt the NSW
Corrections' approach of regular disability screening tools for disability of
all prisoners, both adults and minors. Such a practice would help to ensure
that all prisoners with disability are provided with access to therapeutic and
other supports appropriate to their needs.
Review of forensic orders
Currently forensic (custodial) orders are reviewed on a regular basis
either by the relevant mental health tribunal in most states, the MIARB in WA,
or the Supreme Court in the NT.
The Chief Justice of WA has argued that—in addition to the legislated
introduction of limiting terms— there is a requirement for a 'full, transparent
judicial review of risk' similar to the 'dangerous sexual offender legislation
in [WA] whereby the court reviews every year the risk that they pose to the
The WA Inspector of Custodial Services agreed and went further noting
that 'dangerous sex offenders' in WA currently have greater protections than
people subject to forensic orders. Dangerous sex offenders held on indefinite
detention orders are subject to reviews by the WA Supreme Court annually. In
order for the order to be extended:
The court must be satisfied—picking up the Chief Justice's
theme—that the risk that that person poses cannot be managed in the community
and can only be managed in a custodial setting. If you have a look at the case
law there is a very significant body of case law that basically says there is a
presumption that the person will be released under community supervision unless
there are exceptional reasons based on risk as to why they need to be detained.
Every year—I think it is every year, or every two years—it is referred back to
the court for another public hearing, legal representation in full and
all-of-court paraphernalia. It strikes me that that makes an interesting
parallel with the mentally impaired accused act.
The WA Disability Services Commission contended that the review process
in place through MIARB occurs 'at least once a year'.
Currently, the MIARB reviews (and makes) forensic (custody orders) in Western
Australia. One of the criteria to be considered during this process is the
'degree of risk' that a person poses to the community. MIARB must report on
each person under its jurisdiction at least once per year.
Developmental Disability WA has agreed that this review process does exist;
however, submitted that 'it still comes down to who is making that decision
every year' and that 'as long as you have the person making that decision not
being a court, you are constantly' going to have continued instances of
Some submitters have highlighted that the review process is heavily
dependent on the reports issued by medical and psychiatric experts. Mr Russell
Goldflam of the Criminal Lawyers Association of the NT described a '"tick
and flick" approach to annual reports in some cases, and particularly those
in which the supervised person has been institutionalised (whether in custody
or in the community) for a lengthy period'.
Mr Goldflam noted an example where an independent opinion was sought which led
to a more favourable outcome:
If I could go back to the example I mentioned before: the
gentleman who was given a three-month term several years ago and is still under
an order. This year I have been provided with three reports by health
department psychiatrists—I think it was within the last 12 months—and they all
say, 'This person should stay on the order.' That probably would have kept
going until he died if I had not commissioned a report, which cost the Northern
Territory Legal Aid Commission some thousands of dollars, from an independent
expert from somewhere else who said, 'No, this person is not a serious risk.'
That is why the judge has given an indication that he is considering releasing
him. Unless we had taken that proactive step, we were just going to be stuck
with this bloke sitting comfortably, but unhappily, in his supported
accommodation and never being allowed to go out in the street without a
The committee concedes that a regular review process currently exists in
WA and the NT; however, agrees with witnesses that additional protections
should be instituted so as to provide people subject to forensic orders at
least the same protections as those provided to dangerous sex offenders. It is
the committee's view that where a person is subject to a review process that an
independent third party appraisal of any professional medical and psychiatric
assessments is sought to inform the review process.
Concluding committee view
The committee acknowledges that forensic patients are not detained with
the intention of it being indefinite and prolonged. Nevertheless, as this
chapter has shown, there are a range of factors—from legislation to court
practice—that converge and ultimately result in forensic patients being
indefinitely detained. This chapter has covered substantial and complex
terrain focusing on the front-end of the justice system where alleged offenders
come into contact with the courts. Notwithstanding the complexity of the issues,
the committee considers there are several concrete themes which can be taken
from this chapter to provide a pathway forward that will reduce the indefinite
detention of forensic patients in prison—these are legislative reform including
limiting terms, and supported decision-making and diversionary mechanisms.
Law reform—limiting terms and
increasing sentencing options for judiciary
The committee considers that prison is not a suitable place for forensic
patients, and will elaborate on this view in the next chapter. However, as it
stands, forensic patients are being indefinitely detained and the committee is
interested in mechanisms that prevent this from occurring, regardless of the
nature of the detention facility.
The committee is concerned by reports of people with cognitive and/or
psychiatric impairment pleading guilty to avoid the risk of indefinite
detention as a forensic patient. There is a need for reforms to address this.
Limiting terms is one option to prevent indefinite detention. Currently,
limiting terms for forensic patients are provided for in all Australian
jurisdictions except the NT, WA and Victoria. It is the committee view that
limiting terms need to be adopted for forensic patients in these states.
Limiting terms become a mechanism that forces government to accept greater
responsibility for forensic patients in their care. The committee's support for
limiting terms is based on the proviso that appropriate therapeutic support
services are provided to forensic patients in prison whilst noting that prison
is not the most appropriate place to deliver those services. The committee is
also strongly of the view that a limiting term should not become the default
period, but rather the maximum period that forensic patients spend in prison.
The committee considers that specific legislative reform in the NT and
WA which expands the options available to a sentencing judge beyond
unconditional release and prison will result in less forensic patients being
placed in prison. Secure options and transitional placements that both reduce
risk to the community and also provide a therapeutic, non-punitive environment
for forensic patients are discussed further in Chapter 5.
Supported decision-making and
The committee also heard about a number of successful support-worker
programs including the unfitness to plead project which assist people to engage
with and understand the court process. Importantly, improved participation in
legal processes through support may lead to less forensic orders, diversion to
genuine supported accommodation and therapy, and ultimately, less people being
indefinitely detained. The committee is supportive of such programs being
maintained and expanded.
Screening and diagnosis
The committee agrees with evidence that many alleged offenders are
people with undiagnosed cognitive and psychiatric impairments that continue to remain
undiagnosed. Appropriate, timely screening and diagnosis mechanisms, such as
the new FASD Diagnostic Tool developed by the Telethon Kids Institute, can help
inform the courts and other disability and health service providers to divert a
person, where appropriate, to identify therapeutic treatments.
Specialist courts are another means to intercept and screen people with cognitive
and psychiatric impairments, leading to diagnosis and diversion from the
criminal justice system. There are excellent examples of such specialist courts
which should be adopted and expanded where necessary. The committee also has a
strong view that there is a need for such courts to be adapted for remote Aboriginal
and Torres Strait Islander communities. The committee highlights the remote,
mobile courts—as described by Professor Harry Blagg—as an appropriate way for the
criminal justice system to reach out to remote Aboriginal
and Torres Strait Islander communities. Such mobile courts could deal
with alleged criminal activity in a culturally appropriate way that
acknowledges the inappropriateness of any proven negative behaviours and then
provide a suitable therapeutic on-country pathway forward. Chapter 5 will
further explore culturally appropriate care and pathways to country for
Aboriginal and Torres Strait Islanders.
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