Criminal justice system failing PWD

The criminal justice system is failing people with disability – and their carers, according to a new report.

Criminal justice system failing PWD

What would happen if your son or daughter with an intellectual disability was shoplifting while you were at the office, or after they succeeded in moving out to live independently in the community?

You might reasonably assume that the court system would automatically take into account the person’s inability to understand the illegality of their acts; you might assume that no intellectually disabled person would be sent to jail for a summary offense they could not understand – after all, Craig James Grant (accused of the capital offense of murder) was recently found mentally unfit to stand trial.

You might assume. And you’d be wrong.

The high-profile media coverage last month of Perth man Marlon Noble – jailed for ten years without being convicted of a crime because his disability was too severe for him to be tried in a court – is a symptom of wider failure in the whole criminal justice system when it comes to treating people with disabilities fairly or providing quality, targeted legal advice to their carers or guardians.

ABC Radio National’s Background Briefing has broadcast a damning documentary called “Low IQ and in jail”, which brings together accounts from legal and behavioural psychology experts, people with disabilities, and their carers about the inadequacies of the courts for people with disabilities. It reported: “There are no official figures but it's estimated up to 30% of people in trouble with the law have an intellectual impairment. Intellectually disabled people are being jailed, some for trivial offences, while others are being held indefinitely in unsuitable places, like mental hospitals.”

Melisa Avery of Toowoomba (aged 41), Queensland, has an IQ of just 57 (the bottom 1% of the population). As ABC reported, “She's had a string of shoplifting convictions because she doesn't fully understand the world around her. Despite this, Melisa still faces jail, perhaps to be placed with some of Queensland's most high-risk criminals who would be dangerous to her... Melisa has been twice locked up in the Toowoomba watch house and her parents are appalled that it was allowed to happen”. Father John Avery said, “They had to move her very quickly into a padded cell because she self-harms very quickly.”

Melisa’s choice to live an independent life should arguably be a great achievement; however, it has presented major challenges for her parents and legal guardians, John and Collein. Mother Collein said, “Well it is extremely difficult. You must respect the fact that she is so determined and she strives to live independently in the community, but unfortunately she doesn't have the skills.” Dad John said, “I'm very worried that somewhere along the line, one of the courts is going to make a decision that Melisa needs to be restrained in some way and there's only two alternatives at the moment, and one is prison, which is entirely unsuitable. We'll come out with a hardened criminal on our hands. The other one is a forensic order, which could be as simple as telling her she's not to leave the house without supervision. She'll immediately say, 'Well nobody's going to tell me what to do', and breach it. The next step would be that she would be apprehended in a mental health institution which is entirely inappropriate again.”

Collein describes the inadequacy of the legal approach to people with disabilities: “She [Melisa] definitely needs some help, but that hasn't been forthcoming from any of the appearances in any of the courts that she's been to. The consequences that have been handed down have certainly not been conducive to a person with an intellectual disability. Melisa's had fines, she's been on probation, she's had to pay restitution. She has twice spent about four hours in the watch house. She's had to do community service, but none of these have rehabilitated her in any way.”

Dianne Pendergast, a family lawyer, commented on the negative impact of forensic orders: “We have circumstances where if clients had actually pleaded guilty to an offence, they would be imprisoned for 18 months and they'd be back in the community. For exactly the same offence, we've got clients who are still contained and secluded 24 hours a day seven days a week in [mental] facilities five years later, and there has been absolutely no change in their behaviour.”

Melisa’s case reached the Court of Appeal in November 2010. As reported on Radio National, the court “found Melisa Avery to be permanently unfit to stand trial, but it went further than expunging her criminal record.” Court of Appeal President, Margaret McMurdo, stated: “It seems unsatisfactory that the laws of this State make no provision for the determination of the question of fitness to plead to summary offences. It is well documented that mental illness is a common and growing problem amongst those charged with criminal offences.”

Much suffering could have been avoided if Melisa’s parents had received quality, targeted legal advice from the beginning. In each of Melisa's court appearances, her parents pleaded guilty on their daughter's behalf. Collein explained: “Both her father and myself were of the opinion at the time that you did the crime, you suffered the consequences. Neither of us was informed of the Mental Health Act of 2000 which gives you an avenue to pursue a different path through the courts. And it was in fact in 2005 that a young barrister happened to just ask us one day would we mind if he came i

Criminal justice system failing PWD

The criminal justice system is failing people with disability – and their carers, according to a new report.

Criminal justice system failing PWD

What would happen if your son or daughter with an intellectual disability was shoplifting while you were at the office, or after they succeeded in moving out to live independently in the community?

You might reasonably assume that the court system would automatically take into account the person’s inability to understand the illegality of their acts; you might assume that no intellectually disabled person would be sent to jail for a summary offense they could not understand – after all, Craig James Grant (accused of the capital offense of murder) was recently found mentally unfit to stand trial.

You might assume. And you’d be wrong.

The high-profile media coverage last month of Perth man Marlon Noble – jailed for ten years without being convicted of a crime because his disability was too severe for him to be tried in a court – is a symptom of wider failure in the whole criminal justice system when it comes to treating people with disabilities fairly or providing quality, targeted legal advice to their carers or guardians.

ABC Radio National’s Background Briefing has broadcast a damning documentary called “Low IQ and in jail”, which brings together accounts from legal and behavioural psychology experts, people with disabilities, and their carers about the inadequacies of the courts for people with disabilities. It reported: “There are no official figures but it's estimated up to 30% of people in trouble with the law have an intellectual impairment. Intellectually disabled people are being jailed, some for trivial offences, while others are being held indefinitely in unsuitable places, like mental hospitals.”

Melisa Avery of Toowoomba (aged 41), Queensland, has an IQ of just 57 (the bottom 1% of the population). As ABC reported, “She's had a string of shoplifting convictions because she doesn't fully understand the world around her. Despite this, Melisa still faces jail, perhaps to be placed with some of Queensland's most high-risk criminals who would be dangerous to her... Melisa has been twice locked up in the Toowoomba watch house and her parents are appalled that it was allowed to happen”. Father John Avery said, “They had to move her very quickly into a padded cell because she self-harms very quickly.”

Melisa’s choice to live an independent life should arguably be a great achievement; however, it has presented major challenges for her parents and legal guardians, John and Collein. Mother Collein said, “Well it is extremely difficult. You must respect the fact that she is so determined and she strives to live independently in the community, but unfortunately she doesn't have the skills.” Dad John said, “I'm very worried that somewhere along the line, one of the courts is going to make a decision that Melisa needs to be restrained in some way and there's only two alternatives at the moment, and one is prison, which is entirely unsuitable. We'll come out with a hardened criminal on our hands. The other one is a forensic order, which could be as simple as telling her she's not to leave the house without supervision. She'll immediately say, 'Well nobody's going to tell me what to do', and breach it. The next step would be that she would be apprehended in a mental health institution which is entirely inappropriate again.”

Collein describes the inadequacy of the legal approach to people with disabilities: “She [Melisa] definitely needs some help, but that hasn't been forthcoming from any of the appearances in any of the courts that she's been to. The consequences that have been handed down have certainly not been conducive to a person with an intellectual disability. Melisa's had fines, she's been on probation, she's had to pay restitution. She has twice spent about four hours in the watch house. She's had to do community service, but none of these have rehabilitated her in any way.”

Dianne Pendergast, a family lawyer, commented on the negative impact of forensic orders: “We have circumstances where if clients had actually pleaded guilty to an offence, they would be imprisoned for 18 months and they'd be back in the community. For exactly the same offence, we've got clients who are still contained and secluded 24 hours a day seven days a week in [mental] facilities five years later, and there has been absolutely no change in their behaviour.”

Melisa’s case reached the Court of Appeal in November 2010. As reported on Radio National, the court “found Melisa Avery to be permanently unfit to stand trial, but it went further than expunging her criminal record.” Court of Appeal President, Margaret McMurdo, stated: “It seems unsatisfactory that the laws of this State make no provision for the determination of the question of fitness to plead to summary offences. It is well documented that mental illness is a common and growing problem amongst those charged with criminal offences.”

Much suffering could have been avoided if Melisa’s parents had received quality, targeted legal advice from the beginning. In each of Melisa's court appearances, her parents pleaded guilty on their daughter's behalf. Collein explained: “Both her father and myself were of the opinion at the time that you did the crime, you suffered the consequences. Neither of us was informed of the Mental Health Act of 2000 which gives you an avenue to pursue a different path through the courts. And it was in fact in 2005 that a young barrister happened to just ask us one day would we mind if he came in on the interview with the duty lawyer. And that barrister was Dan Toombs and from that moment our life changed.”

Melisa’s case has inspired Toowoomba barrister Dan Toombs to launch an online legal TV channel and to write a soon-to-be-published legal handbook on intellectual disability. He founded Australia's first criminal law service for people with mental or intellectual disabilities, the Disability Law Project, which is run through the Queensland Criminal Justice Centre.

The website is http://www.tascinc.org.au/services/legal.html; the Radio National documentary is available for free at http://www.abc.net.au/rn/backgroundbriefing/stories/2011/3191335.htm both as a transcript and in audio.

n on the interview with the duty lawyer. And that barrister was Dan Toombs and from that moment our life changed.”

Melisa’s case has inspired Toowoomba barrister Dan Toombs to launch an online legal TV channel and to write a soon-to-be-published legal handbook on intellectual disability. He founded Australia's first criminal law service for people with mental or intellectual disabilities, the Disability Law Project, which is run through the Queensland Criminal Justice Centre.

The website is http://www.tascinc.org.au/services/legal.html; the Radio National documentary is available for free at http://www.abc.net.au/rn/backgroundbriefing/stories/2011/3191335.htm both as a transcript and in audio.