RECOMMENDATIONS

Special units and services in prisons

55. Special units for both men and women with an intellectual disability within prisons should be retained (or in the case of women, established) and expanded. [See paras 11.14-11.15]

56. Specialist services should be provided for prisoners with an intellectual disability who remain within the mainstream prison population. [See para 11.16]

Secure units outside prisons

57. Secure units outside the prison system should be established and administered by the New South Wales Department of Community Services for people with an intellectual disability found unfit to plead or found not guilty on the ground of mental impairment. These secure units should have the legislative guidelines outlined in para 11.29 to protect the rights of the people detained, including admissions and review criteria and provision of legal representation. [See paras 11.17-11.29]

Access to Community Service Orders

58. The New South Wales Probation and Parole Service should ensure that there are available Community Service Order work options which are suitable for a person with an intellectual disability. Supervision would be provided by the Special Offenders’ Service recommended in Recommendation 59. [See paras 11.35-11.37]

Special Offenders’ Service

59. Within 12 months from the tabling of this Report, the New South Wales Probation and Parole Service should establish a specialist supervision and support service for people with an intellectual disability who are serving non-custodial sentences (including bonds or probation) or who are on parole. The role of this Special Offenders’ Service would be:

(a) to provide specialist supervision and support to people using its services; and

(b) to liaise with the New South Wales Department of Community Services, and in particular the person’s case manager recommended in Recommendation 54, to ensure that the person receives appropriate services and accommodation. [See paras 11.38-11.42]

Accommodation for people on bail

60. Places in the secure units recommended in Recommendation 57 should be set aside for people with an intellectual disability who could not otherwise obtain bail without physically secure accommodation. [See para 11.43]

BACKGROUND

11.1 In Chapter 10 the Commission made recommendations aimed at overcoming the lack of co-ordination between government agencies in the provision of services to people with an intellectual disability. Lack of co-ordination is not, however, the only problem. The lack of services available to people with an intellectual disability involved in, or at risk of being involved in, the criminal justice system, has been a constant theme in earlier reports¹ and in submissions and consultations for this reference. For example, one submission stated:

the lack of appropriate services providing accommodation, care and support for people with an intellectual disability is well known. Although it is occasionally possible to find care for persons who have not committed offences, this becomes virtually impossible for those who have offended.²

It is feared that prisons “fill the gap” caused by the lack of services in the community, contributing to the over-representation of people with an intellectual disability outlined in Chapter 2.³ Judges have also expressed the concern that some offenders with an intellectual disability should be the responsibility of community service departments rather than of the Department of Corrective Services.⁴

11.2 In particular, submissions and recent reports have commented that:

• there are not enough preventative services and programs;⁵
• there are not enough programs to address behaviour that has led to the person coming into contact with the law;⁶
• there are not enough appropriate programs in prison to prevent reoffending and achieve habilitation (that is the gaining of skills to enable the person to function in the community as a self-reliant citizen);⁷
• there is no appropriate alternative to prison for people with an intellectual disability who require secure or supervised accommodation;⁸ and
• there is not enough support for people with an intellectual disability to enable them to undertake the bail, sentencing, release and parole options available to other people involved in the criminal justice system.⁹

11.3 The goal for programs, support and services for people with an intellectual disability should be to enable them to participate, as fully as possible, as productive members of the community.¹⁰ Accordingly, in the criminal justice system, the emphasis should be on prevention and rehabilitation (or habilitation).¹¹ People with an intellectual disability should be subject to the least level of restriction on their movement that is compatible with the safety of the person and the community.¹² In this chapter, the Commission makes recommendations about the specific programs and services needed to enable this goal to be reached. The Commission has tried to identify some of the key services - a more comprehensive list will be completed (and updated) by the Ageing and Disability Department if the recommendations in the previous chapter are implemented.

DISCUSSION OF RECOMMENDATIONS

Recommendations 55 and 56: Special units and programs in prisons

Existing units and programs

11.4 The Department of Corrective Services provides special units for some male prisoners with an intellectual disability and programs for others with an intellectual disability within the mainstream prison system.¹³ However, it has been argued that prison programs are “spasmodic in operation, inadequate in number, under resourced, designed without an appropriate level of professional input, and are essentially unevaluated, through ongoing independent review”.¹⁴

11.5 As at August 1996, there were three special units:

• a development unit for 18 inmates at Long Bay in Sydney for sentenced and unsentenced inmates of all security classifications;
• a development unit for 12 minimum security inmates at Goulburn;
• a special support program at Kirconnel near Bathurst to provide work, education and counselling activities for 20 minimum security inmates.

11.6 Other units are planned. According to the Department:

It is proposed that the current special unit at Long Bay be replaced by a 40 bed development unit at Long Bay as part of the redevelopment of that site after the new Metropolitan Remand and Reception Centre opens at Silverwater in 1997. It is planned that this unit will provide the following programs:
• a sex offender program for 10 inmates
• a Koori support program for 10 inmates
• a program to cater for 20 sentenced and unsentenced inmates of all security classifications to replace the current 18 bed unit.



A support program for female inmates with an intellectual disability is to be established in the women’s correctional centres under the direction and supervision of the psychological services section of the Department.¹⁵

11.7 The Department has stated that the purpose of these units is to provide appropriate services which will improve the ability of people with an intellectual disability “to cope in gaol and to live in the general community as self-reliant, law abiding citizens”.¹⁶ In these units, individual program plans are developed which cover areas including literacy and numeracy, work preparation, personal care and hygiene, interpersonal skills, relaxation training, sport and exercise, domestic skills, budgeting, skills for coping with frustration and violence and personal counselling. Officers in the unit are specially trained and are appointed as case mangers for specific inmates. Each officer is responsible for monitoring progress with program plans, preventing crises and giving relevant information to other members of the team. The case plans are developed by a case management committee composed of the special unit’s nurse, teaching and custodial staff.

11.8 Department of Corrective Services guidelines for managing people with an intellectual disability in correctional centres state that people with an intellectual disability should not be placed in special units by reason of intellectual disability alone. The draft guidelines state that inmates:

will be placed in special units if they are considered by a psychologist to be unsuitable for mainstream programmes because of their youth, the nature of the offence, personality or behavioural factors or other “at-risk” characteristics, or because there is a particular programme which will be of benefit to the inmate which is not available elsewhere within the correctional system.¹⁷

Should special units be retained?

11.9 In DP 35 the Commission considered the issue of special units in prison for people with an intellectual disability. In its proposals, the Commission supported the retention of special units in the prison system, with the qualification that the units should be regularly reviewed. The Commission also supported the provision of funding for services for mainstream prisoners with an intellectual disability.¹⁸

11.10 Support for special units. Submissions and consultations have generally supported the work of these special units in prison.¹⁹ The main reason given is that they protect people with an intellectual disability from their well-documented exploitation and abuse by other prisoners.²⁰ Other benefits are that the units: have specialist staff; apply a consistent approach; and may reduce the chances of reoffending. Some submissions and reports question whether the principle of mainstreaming or normalisation is appropriate in a prison environment. They point out that prison is not a “normal” environment and that there is little to be gained by ensuring that people with an intellectual disability are included in the mainstream prison service.²¹

11.11 Reservations about special units. Consultations and submissions also noted the limitations of the units. For example, there are only limited places available and the full range of therapeutic programs such as speech pathology, sex offender programs and physiotherapy are not available.²² The programs do not necessarily include professionally run and individually tailored programs to address the behaviour that led to imprisonment.²³ It has also been said that special units in prisons do not meet the needs of many Aboriginal people and Torres Strait Islanders. For example, the strong stigma among some Aboriginal people attached to being identified as having an intellectual disability was noted. As the units are not available in a wide range of locations, admission to a unit may mean isolation from important family connections, both inside and outside the prison.²⁴ Such concerns will also affect non-Aboriginal prisoners and are difficult to overcome.

11.12 A 1994 review (the “Puplick Report”) of the services being provided to prisoners with an intellectual disability raised the following concerns about the units:

• there are only 68 places in special units for an estimated 720-780 people with an intellectual disability;
• there are no places for female prisoners;
• more input from formally qualified personnel is required in the administration area;
• there are not enough places in basic formal education programs and the education programs are not designed by professionals;
• there are no sex offender programs suitable for people with an intellectual disability;
• life skills programs are not tested against the real needs of the inmates; and
• prison staff run the units.²⁵

11.13 The report also supported the separation of people with an intellectual disability from the mainstream population, especially those people in prison for non-violent offences for short periods, because: their safety is at risk if they remain in the general prison population; “tough” inmates become role models which makes reintegration into the community more difficult; and special educational services are better provided in separate units away from the general population.²⁶

The Commission’s recommendations

11.14 Special units. The Commission has concluded that special units within prisons assist in protecting and meeting the needs of prisoners with an intellectual disability. The units represent one of the few providers of skills development programs to offenders with an intellectual disability. For some prisoners with an intellectual disability they provide a secure and stable environment in which appropriate programs tailored to individual needs can be delivered. The Commission believes that the current available places are inadequate for the likely demand, and is particularly concerned by the lack of facilities for women with an intellectual disability. It recommends that the units be retained (or in the case of female prisoners, established) and expanded to take into account the significant numbers of prisoners with an intellectual disability suggested by the studies outlined in Chapter 2 and to provide accommodation at each prisoner security level. The Commission considers that whether or not a person with an intellectual disability is placed in a special unit should be determined according to the vulnerability and the needs of the particular individual. Additionally, the units should be regularly reviewed.

11.15 The Commission believes that prisoners in special units should have the same basic rights and privileges as other prisoners of the same security classification. Accordingly, they should have access to appropriate drug and alcohol programs, sex offender programs, therapy and contact visits to the extent they would be available if the prisoner were in the main part of the prison. In addition, people with an intellectual disability in prison should have access to professionally run programs designed to address the behaviour which led to imprisonment.

11.16 Specialist services in mainstream prison population. As with special units, the vulnerability and special needs of prisoners with an intellectual disability should be taken into account in the provision of services and supports within the mainstream prison system. Where there are insufficient places in special units, there should be funding available to enable a person with an intellectual disability in the general prison population to receive appropriate support and services outside the units. Funds should be available to train and employ an Aboriginal or Torres Strait Islander support person for Aboriginal people or Torres Strait Islanders with an intellectual disability who remain in the general prison population.

Recommendation 57: Secure units outside prisons

11.17 The need for appropriate sentencing options for offenders with an intellectual disability has been an important issue in this reference. One issue is whether it is appropriate to place a person with an intellectual disability in a prison. A person with an intellectual disability may be in prison if he or she has been:

• charged with an offence and refused bail (see Recommendation 60 below);
• found guilty of an offence and sentenced (see Recommendation 56 above);
• found unfit to plead and received a limiting term (see Chapter 5); or
• found not guilty on the ground of mental illness (see Chapter 6).

11.18 A number of submissions and reports on this issue state that mainstream prison is not an appropriate option for any person with an intellectual disability.²⁷ The reasons given include:

• people with an intellectual disability are very vulnerable in prison;²⁸
• people with an intellectual disability are seen as susceptible to the negative influences of the prison environment which may reinforce rather than reduce criminal behaviour;²⁹
• if the focus of sentences is habilitation, custodial sentences are counter-productive because of the artificial nature of prison environment;³⁰
• to achieve a deterrent effect the person must be able to connect the crime with the punishment and some people with an intellectual disability may not be able do this³¹ - in cases where people with an intellectual disability do not understand why they are in prison, punishment becomes meaningless and cruel; and
• prison may be more burdensome for people with an intellectual disability than for others because it disrupts normal routines and patterns which many such people rely on for their well-being,³² and the emotional and psychological consequences of prison may be more onerous.³³

11.19 It has been argued that people who have been found unfit to be tried or not guilty on the ground of mental illness (which can include intellectual disability), in particular, should not be detained in prison.³⁴ However, it has been commented that non-custodial options will not always be suitable, for example, where a person has committed a serious act of violence.³⁵

Secure services in Victoria

11.20 In DP 35 the Commission discussed whether people with an intellectual disability who need custodial care should be placed in secure units outside the prison system. In New South Wales there are no secure units outside the prison system other than the locked wards of psychiatric hospitals, which are clearly inappropriate for persons with an intellectual disability (unless they also have a psychiatric illness which requires secure confinement). The Department of Community Services (“DOCS”) states that it does not have any special secure facilities in which a person can be confined.³⁶ It also argues that it does not have the statutory capacity to provide a community-based alternative to incarceration, because of the voluntary nature of its service provision role.³⁷ Though all DOCS facilities are designed to be voluntary, if the person has a guardian because of his or her level of disability, the guardian (acting as the person’s substitute decision-maker) can consent to the person’s placement in a particular facility.³⁸ Additionally, in practice, many DOCS institutions do control their clients’ freedom of movement.

11.21 DP 35 discussed the Victorian Secure Services Unit, which is in the grounds of the Kingsbury Training Centre. The unit is a four to five bedroom house which has at least two staff on duty. It accommodates four to five prisoners with an intellectual disability within a high fence. The inmates are primarily those who have been found unfit to plead and are being held at the Governor’s pleasure. They may also include sentenced prisoners believed to be particularly vulnerable within the prison system, offenders on Justice Plan conditions under s 80 of the Sentencing Act 1991 (Vic) or people residing there under the directions of a guardian.³⁹ The inmates are transferred out of the control of the Corrections Services into the control of the Department of Health and Community Services by order of the Minister, pursuant to s 21 of the Intellectually Disabled Persons Services Act 1986 (Vic). The unit is part of a system of supervised and supported accommodation run by the Statewide Forensic Program, which provides services for offenders with dangerous or anti-social behaviour. The program also provides less restrictive levels of accommodation designed to enable a person to move gradually to lower levels of security and ultimately back into the community. Kingsbury provides “Stage One” security; “Stage Two” consists of less secure 24 hour supervised accommodation in the grounds of an institution; and “Stage Three” consists of 24 hour supervised accommodation in the community. In 1994, a new house for offenders with both an intellectual disability and an active psychiatric illness was established, with similar levels of security and support to Stage Two accommodation.⁴⁰

11.22 In DP 35 the Commission proposed that the Victorian model of a secure unit (not within the grounds of a prison) for people with an intellectual disability who are either unfit to be tried or not guilty on the ground of mental illness, or other offenders with an intellectual disability for whom prison is considered inappropriate, should be adapted for use in New South Wales. It proposed that appropriate safeguards and services should be provided and the conditions for the transfer of such people from prison be set out in legislation. It sought further information on the question of the appropriate department to run the unit. It proposed that the unit should be able to offer more flexible leave and rehabilitation programs than are available in prison, and that, as in the prison system, there should be provision for decreasing levels of security.

Qualified support for secure units outside the prison system

11.23 Submissions gave qualified support to secure units outside the prison system.⁴¹ The Western Australian Department of Corrective Services said that, if professionally administered, the units would provide the most favourable environment to meet the special management and habilitation needs of offenders with an intellectual disability.⁴² It was also argued that, in contrast to prisons, secure units can provide the opportunity for supervised community access.⁴³ Concerns expressed about secure units outside prison included:

• the units might become a “dumping ground” for people who should not require custodial care;⁴⁴
• the units have the potential to become institutional facilities that foster abuse and reinforce maladaptive behaviour;⁴⁵
• there might be no progression through the system from maximum to minimum levels of security;⁴⁶
• the units may not provide better treatment and services than those in prisons;⁴⁷
• it is not clear who should run the units; and
• it is not clear which offenders with an intellectual disability should go to these units.

Several submissions emphasised that security for people with intellectual disability should “be considered in terms of high levels of supervision and intensive programming”, rather than locked units.⁴⁸ The Office of the Public Guardian argued that, for most offenders with an intellectual disability, “the necessary ingredient of care and support required in community placements is appropriate supervision, not specifically secure custody”. It stated that it has found support among senior staff of a prison Forensic Ward for the view that “many individuals with an intellectual disability who are incarcerated require not a secure physical environment but supervision. ... They also require positive training and appropriate support staff and programs.”⁴⁹

11.24 The Intellectual Disability Rights Service stated that to overcome these concerns any special service of this kind should:

• service no more than a few clients in any one location;
• not be isolated from the community;
• have a sufficient staff-client ratio to ensure real support and assistance;
• be staffed with qualified personnel; and
• have regular review procedures.⁵⁰

The submission stated that any new facilities should be the joint responsibility of DOCS and the Department of Corrective Services to ensure that clients receive appropriate support or services.⁵¹ Hayes and Craddock also argue that to transfer a person to an intellectual disability facility there must be a formal commitment procedure in which the person is represented by legal counsel and the decision is reviewed regularly.⁵²

The Commission’s conclusions

11.25 Secure units outside prisons. The Commission believes that people who are found unfit to plead or found not guilty on the ground of mental illness should not be in prison. In law, they have a different status to other offenders and, as a matter of human rights, should not be incarcerated in the same way in prisons. The Commission agrees with submissions that, in most cases, high level supervision and intensive programs would meet both the individual’s needs and the community’s need for safety. There will remain a small group of people with an intellectual disability who have received these “verdicts” and may need to be in secure accommodation, not as punishment, but because they may be a real danger to the community and likely to reoffend if they are not.⁵³ The Commission recommends that there must be a range of levels of secure and supervised environments outside the prison system. The Commission notes that the maximum numbers involved are small - New South Wales, as at December 1994, had 123 “forensic patients”, who include people found unfit to be tried or found not guilty on the ground of mental illness, as well as other prisoners who become mentally ill in prison.⁵⁴ The overwhelming majority of these people would have a mental illness and would be most appropriately detained in a psychiatric hospital or treated in the community. Of the 133 forensic patients reviewed by the Mental Health Review Tribunal between July and December 1994, 19 were located in the community, 49 were in prison hospitals, 63 were in psychiatric hospitals and only two were in prison (but not in a prison hospital).⁵⁵

11.26 The Commission has concluded that the recommended secure units for people found unfit to plead and people found not guilty on the ground of mental illness, should not be available to people with an intellectual disability who have been sentenced to imprisonment. Placing sentenced and “unsentenced” people in the same facility would involve mixing people whom the law has found fit to be punished with those whom it has not. People with an intellectual disability who have been found fit to plead and given a custodial sentence but who need special protection or services can be accommodated through special units or services within the prison system, followed up by properly supervised and supported parole services. (See Recommendations 55, 56 and 59.)

11.27 Units to be run by Department of Community Services. The Commission notes that for people with a mental illness who are detained there are different levels of secure accommodation run by the Health Department, staffed by psychiatric staff rather than prison officers, which enable a person to progress through the levels and ultimately to return to the community. It seems unjust that there is not a parallel range of accommodation for people with an intellectual disability run by the department which provides services for people with disabilities, DOCS.

11.28 The Commission therefore recommends that DOCS should provide the recommended secure units. Although security is needed, the fundamental role of these units is to address the behaviour that brought the person into contact with the criminal justice system and to provide the services and programs the person needs to achieve habilitation. DOCS staff have the skills and experience to provide these services. Additional resources will be necessary. In Victoria the Statewide Forensic Program is run by the Department of Health and Community Services. The Puplick Report also argued that habilitation services should not be solely provided by prison officers whose main function and culture is corrective.⁵⁶ A forensic psychologist with the Victorian Statewide Forensic Program also commented on the need to avoid confusion from the outset about whether the role of staff of these units is custodial or rehabilitative.⁵⁷ If the units are run by DOCS their rehabilitation/habilitation orientation will be established from the beginning. DOCS’ reservations about involving itself in security issues should be explicitly addressed through the legislative safeguards outlined below. The Commission’s recommendation will not require DOCS to provide secure accommodation for large numbers of people. For most “unsentenced” people with an intellectual disability involved in the criminal justice system, highly supervised and supported arrangements will be adequate to meet their needs and to protect the community. For the few cases where physical security is genuinely an issue, DOCS should be able to access the assistance and expertise of the Department of Corrective Services or other relevant agencies if needed.⁵⁸

11.29 Safeguards. The Commission notes concerns raised at para 11.23 above, for example that secure units may become quasi-prisons or a “dumping ground” where people with an intellectual disability with challenging behaviours are forgotten and left without proper support or programs. The Commission recommends that secure units for people with an intellectual disability should be established with the following conditions and safeguards to meet these concerns:

1. There must be a legislative basis for the units, including the admissions criteria and review procedures.
2. Admissions criteria should include consideration of the appropriate level of security for the person and there must be clear criteria to enable the person to move to increasingly less secure environments and ultimately to be released into the community.
3. Key decisions in the process should include legal representation for the person.
4. There should be an external case manager⁵⁹ to oversee the progress of the person in the units, review the case plan, and ensure that the person gets the necessary services to enable him or her eventually to return to life in the community.
5. The units should: be group homes with only a small number of residents in any one location; be located in a community setting as far as possible; have a sufficient staff-client ratio to ensure effective support and assistance; be staffed by qualified persons; and be regularly monitored through visits by the Community Services Commission.
6. The Ageing and Disability Department should fund research to evaluate these units in comparison to the other detention options, namely special prison units and specialist services provided in the main part of the prison.

Recommendations 58 and 59: Non-custodial or semi-custodial sentencing options

Existing non-custodial options

11.30 Provision of appropriate non-custodial sentencing options is another area in which offenders with an intellectual disability are denied the rights or options available to those without an intellectual disability because of a lack of support services, or because the options are not geared towards the needs of people with an intellectual disability. The range of non-custodial (or semi-custodial) options include:

• Community Service Orders (“CSOs”);
• completing specified hours at an Attendance Centre;
• bonds;
• periodic detention;
• home detention;⁶⁰ and
• program probation orders (federal offenders only).⁶¹

11.31 In DP 35, the Commission outlined some reasons why many people with an intellectual disability may not understand the requirements of, or have difficulty complying with, these non-custodial and semi-custodial sentencing options.⁶² For example, a person with an intellectual disability may find it hard to tell the time to keep appointments with their Probation Officer or they may need help (such as travel training) to reach an Attendance Centre to meet their reporting conditions.⁶³ A survey of judicial officers suggested that some magistrates believe that physical or mental disabilities make some offenders unsuitable for CSOs.⁶⁴ Some work options for CSOs are not suitable for a person with an intellectual disability unless there is more supervision than is currently given.

Benefits for people with an intellectual disability

11.32 Non-custodial sentencing options offer benefits to people with an intellectual disability. For example, CSOs may: boost self esteem though the work undertaken; maintain or enhance normal social skills rather than institutional skills and values; give the person a chance to model themselves on typical members of the community rather than on prisoners; and may be a more meaningful punishment for a person with an intellectual disability than other options.⁶⁵ CSOs and Attendance Centres, bonds and program probation orders have the potential to provide individuals with further community living skills,⁶⁶ while allowing people to keep their community ties. Home detention raises more difficult issues. Though it may protect vulnerable offenders from abuse in prison, the procedures involved may be beyond the abilities of some people with an intellectual disability and may be unsuitable for the residential options of other people. There are also concerns that home detention may impose an inappropriate supervision burden on family members or other carers. However, it is inappropriate to generalise in this area and each case should be judged on its own merits.⁶⁷

Parole

11.33 Similar issues arise in relation to the release from prison on parole of people with an intellectual disability. Offenders with an intellectual disability tend to serve longer sentences (for the same crimes) than non-disabled offenders and are less likely to be released on parole.⁶⁸ To be released on parole, a prisoner must show the potential, and then the ability, to adapt to normal lawful community life. People with an intellectual disability are likely to have low levels of adaptive and social skills, which may affect their ability to obtain parole. There are few community facilities willing to accept people with an intellectual disability on release,⁶⁹ and they may not have any family willing or able to provide the necessary support. When they are released, there is a likelihood that they will return to prison because they may have difficulty understanding and, without support, meeting the conditions of parole.⁷⁰

11.34 It is a breach of human rights if people with an intellectual disability are imprisoned (or not released on parole in the same way as other prisoners) because there are no appropriate non-custodial or post release options. The breach is made worse because of their vulnerability to physical and emotional abuse by other prisoners. If a major reason for their presence in prison is that there are not adequate facilities or support to make non-custodial options or parole workable, then these facilities and supports should be provided without delay.

Recommendation 58: Access to Community Service Orders

11.35 The New South Wales Probation and Parole Service has stated that it is committed to providing specialist offender management programs where appropriate.⁷¹ However, there are as yet no specialised options for people with an intellectual disability within the Probation and Parole Service designed to enable a person on probation, serving other non-custodial sentences, or on parole to complete a sentence or parole period successfully. Lack of funding to provide extra services is a constraint,⁷² as is the high client-staff ratio. The average ratio of active supervision cases to field staff is 45 offenders per officer.⁷³ Supervision often means no more than a weekly or monthly request for the person to attend the Service’s office for an interview. This is unlikely to be sufficient for a person with an intellectual disability but the client-staff ratio makes the provision of the extra supervision required for a person with an intellectual disability difficult.⁷⁴ Because officers may feel unable to give this extra supervision and as there are no special services to enable this to happen, a probation officer preparing a pre-sentence report may inform the court that the person is not suitable for a non-custodial sentence.⁷⁵

11.36 In DP 35 the Commission proposed that, with the assistance of DOCS, the Probation and Parole Service should develop appropriate non-custodial programs for offenders with an intellectual disability within the existing non-custodial or semi-custodial options, such as CSOs. Submissions strongly supported this proposal.⁷⁶ Comments included:

• alternatives to prison such as CSOs should be accessible to people with an intellectual disability;⁷⁷
• CSOs and attendance at programs which provide living skills and work training are most appropriate for offenders with an intellectual disability;⁷⁸ and
• the kinds of programs available with a CSO should also be available as a condition of a good behaviour bond.⁷⁹

11.37 As discussed in para 11.32 above, in principle the CSOs are suitable for a person with an intellectual disability, but the chosen “community service” work will need to be carefully chosen, taking into account the abilities of people with an intellectual disability. Accordingly, the Commission recommends that the Probation and Parole Service should ensure that there are CSO work options available which are suitable for a person with an intellectual disability. Appropriate supervision for offenders with an intellectual disability serving non-custodial options is considered further below.

Recommendation 59: Special Offenders’ Service

11.38 The Commission believes that with only minor modifications, the current non-custodial sentencing options for offenders with an intellectual disability are adequate. The court already has the power to require a person to live at a certain place, attend particular programs, to be supervised by a particular person or organisation and to follow a program for rehabilitation they devise.⁸⁰ However, to complete a non-custodial sentence successfully, offenders with an intellectual disability may require additional specialist supervision and support, adequate accommodation, and access to programs which address challenging behaviour and other needs and promote rehabilitation.

11.39 Accordingly, in DP 35 the Commission proposed that a pilot service co-ordination scheme, based upon the Special Offenders’ Service, Lancaster County, Pennsylvania in the United States of America,⁸¹ be established jointly by DOCS and what was then known as the New South Wales Probation Service, with staff drawn from both organisations. It also proposed that appropriate community-based accommodation be established to allow offenders without adequate accommodation or community ties to be involved.⁸² There was considerable support in submissions for this proposal.⁸³ The Probation Service said that it would be important to consider whether such a service would be diversionary or post-release.⁸⁴ DOCS did not support the proposal for a number of reasons:

This proposal has serious resource implications for [DOCS]. In addition, there are major issues outstanding, not the least of which remains the level of disability and support requirements of the majority of people with intellectual disability within the criminal justice system; the identification by people with intellectual disability as potential clients of the Department, the compounding issues of consent to receive services and what shape the legislation required to establish such a service will take. Administrative and occupational health and safety issues would also need to be considered.⁸⁵

11.40 The Commission still supports this proposal and suggests that the most cost effective way of providing the required specialist supervision and support is through an extension of the services already provided by what is now known as the Probation and Parole Service. The principal function of this recommended “Special Offenders’ Service” would be to provide specialist supervision and support to people with an intellectual disability who have received non-custodial sentences, or who are on parole.⁸⁶ The officers providing this supervision and support would require special training. A further function would be to liaise with DOCS, and in particular the person’s case manager (see Recommendation 54) to ensure that the person receives the appropriate behaviour management, habilitation services and placement in suitable accommodation. Close co-operation between DOCS and the Probation and Parole Service will be necessary to ensure that appropriate accommodation is available. The Department of Ageing and Disability should address this need for appropriate accommodation and support services for people with an intellectual disability serving non-custodial sentences and on parole as part of its overall co-ordination task outlined in Recommendation 48. The Commission understands that in discussions between the Probation and Parole Service and DOCS about co-ordination of accommodation, DOCS indicated that it was not prepared to accept responsibility, at that stage, for the provision of these residential services, either jointly or solely.⁸⁷ The Commission believes DOCS should provide a range of accommodation for people with an intellectual disability apart from the secure units recommended in Recommendation 57, including for people who need accommodation to enable them to complete a non-custodial sentence.

11.41 Access to the Special Offenders’ Service should be by order of the court (in the case of non-custodial sentences) or through the parole administrative processes. The court order or the administrative process should prescribe the period the person should participate in the Service and review mechanisms should also be established. In addition the Probation and Parole Service should develop an administrative process for admitting clients who were not identified as having an intellectual disability when sentenced or paroled and people sentenced to less than three years’ imprisonment who receive automatic parole. The Special Offenders’ Service should be accessible to people with an intellectual disability from non-English speaking backgrounds and Aboriginal people and Torres Strait Islanders.

11.42 The Commission regards this recommendation as crucial to preventing recidivism and promoting rehabilitation. The Special Offenders’ Service in Lancaster achieved a recidivism rate of 5%, compared to a national rate of 60%.⁸⁸ Establishing a similar service will require extra resources for both the Probation and Parole Service and for DOCS, and the Commission recommends that a special budget allocation be made available to implement it. If recidivism is prevented and rehabilitation is promoted, the expenditure will be balanced by savings in money spent on prisons and on the legal process. Community safety will be considerably enhanced and the quality of life for many people with an intellectual disability and their families will be improved.⁸⁹

Recommendation 60: Accommodation for people who would otherwise be denied bail

11.43 Not only may people with an intellectual disability be found unsuitable for many non-custodial options due to the lack of appropriate support services but, as discussed in Chapter 4, a person with an intellectual disability may also be denied bail because he or she does not have the appropriate support or accommodation services. In some cases, this is because a residential facility refuses to take a person back after he or she has been charged with an offence,⁹⁰ or because he or she is homeless and does not have adequate community or family ties.⁹¹ There is currently no service or facility which provides emergency accommodation for a person with a disability in this situation and so a person with an intellectual disability may be denied liberty due to lack of services.⁹² As discussed in para 4.78, the Commission has abandoned its proposals for a pilot bail hostel owing to the concerns of disability organisations, but recognises that there is still a need for emergency secure accommodation which is not in a prison which has to be addressed. Accordingly, the Commission recommends that for those few who need secure accommodation, a number of places in the secure units recommended by the Commission in Recommendation 57 above should be set aside. For the majority who simply require supervision, care and accommodation to meet bail requirements, DOCS should, as discussed, provide some supervised crisis accommodation specifically for this purpose or put together an appropriate arrangement as needed. As discussed for the Special Offenders’ Service, the Ageing and Disability Department should include this need in its co-ordinated plan for service provision outlined in Recommendation 48.

Conclusion: Gaps in services

11.44 There are major gaps in service provision for people with an intellectual disability. If these gaps were filled, many people would not enter the criminal justice system in the first place and many others would not reoffend. Key services that are needed include:

• pre-offence programs for people who are at risk of committing offences but with support could be diverted from that path;
• counselling for offenders and victims;
• more supervised accommodation and programs for people with an intellectual disability in contact or at risk of contact with the criminal justice system, particularly for people with mild and borderline intellectual disability;⁹³ and
• post release or re-integration programs.

The Commission is particularly concerned that pre-offence and post release programs be available. Pre-offence programs can prevent entry to the criminal justice system and the associated financial and other costs to the community. Before this can be done, there must be a co-ordinated plan agreed to by all the relevant disability and criminal justice agencies. Recommendation 48 outlined such a process for identifying needs, allocating responsibility and planning for new services.

FOOTNOTES

1. See, for example, New South Wales - Report of the Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales Australia The Missing Services (Departments of Corrective Services and Youth and Community Services, Sydney, 1985) (“The Missing Services Report”); see also the follow-up story in New South Wales - Ombudsman of New South Wales Annual Report 1990 at 115-119; and New South Wales - Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (Department of Family and Community Services, 1988).

2. Legal Aid Commission of New South Wales Submission (24 July 1992) at 6. Other submissions which refer to the issue of lack of services included: Mr M Porter, Clinical Psychologist Submission (8 June 1994) at 1; Mr R Hogan, Director, Parole Service, Department of Corrective Services, New South Wales Submission (22 June 1994); Mr G Simpson, Social Worker, Lidcombe Hospital, Head Injury Community Outreach Team Submission (21 February 1994) at 16; Intellectual Disability Rights Service Submission (1 March 1995) at 16; Kingsford Legal Centre Submission (29 October 1992) at 5; New South Wales - Department of Corrective Services Submission (14 November 1991) at 2; Office of the Public Guardian, New South Wales Submission (1 March 1995); Epistle Post Release Service Submission (26 August 1992) at 1; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 15-16; Community Services Commission Submission (2 March 1995) at 1.

3. For example, New South Wales Council for Intellectual Disability, Rights, Legislation and Advocacy Action Team “Missing Services - Are Prisons Filling the Gap?” (July 1994) 2 CID News, special supplement at 2.

4. For example, R v Crawford (Court of Criminal Appeal, NSW, 28 June 1995, CCA 06043/95, unreported) per Dunford J at 7.

5. See, for example, Intellectual Disability Rights Service Submission (1 March 1995) at 16; Office of the Public Guardian, New South Wales Submission (1 March 1995) at 3.

6. See, for example, S Hayes Reducing Recidivism Amongst Offenders with an Intellectual Disability (unpublished, prepared for the Office on Disability of the New South Wales Social Policy Directorate and the Disability Council of New South Wales, June 1994) at 14; consultation with representatives of Intellectual Disability Rights Service, New South Wales Council for Intellectual Disability, Disability Council of New South Wales, New South Wales Sexual Assault Committee and the Brain Injury Association on 10 March 1994; Office of the Public Guardian, New South Wales Submission (1 March 1995).

7. See, for example, Ms A Birgden Submission (15 February 1995).

8. Consultation with representatives of Intellectual Disability Rights Service, New South Wales Council for Intellectual Disability, Disability Council of New South Wales, New South Wales Sexual Assault Committee and the Brain Injury Association on New South Wales Inc on 10 March 1994; Intellectual Disability Rights Service Submission (1 March 1995) at 13-15.

9. See, for example, Office of the Public Guardian, New South Wales Submission (1 March 1995) at 4-10; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 12-15.

10. See Disability Services Act 1993 (NSW) s 3.

11. International Covenant on Civil and Political Rights, Article 10(3): “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”

12. See Disability Services Act 1993 (NSW), Schedule 1, Principles 1(b), (c) and (g) and Applications of Principles 2(a) and (g).

13. The 1994-95 budget for these services was $0.586M: Programs for People with Disabilities: Budget 1994-95 (Office on Disability, Social Policy Directorate, 1994) at 21.

14. Mental Health Review Tribunal Annual Report 1994 at 7.

15. Letter from Mr C Rannard, Department of Corrective Services, New South Wales to the Commission dated 14 August 1996.

16. New South Wales Department of Corrective Services Annual Report 1990/1991 at 76.

17. “Policy Guidelines for Managing Offenders who have an Intellectual Disability”, para 6.5. These guidelines are currently being considered by management for adoption by the Department: Letter from Mr C Rannard, Department of Corrective Services, New South Wales to the Commission dated 14 August 1996.

18. New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues (Discussion Paper 35, 1994) (“NSWLRC DP 35”), Proposal 40 and paras 11.25-11.33.

19. Consultation with the Illawarra Criminal Justice Sub-Committee on 2 March 1992; Dr J A Thompson, Consultant Psychiatrist, Community Health Services, Central Sydney Health Service Submission (26 January 1994) at 1; Intellectual Disability Rights Service Submission (1 March 1995) at 14; Queensland - Department of Family Services and Aboriginal and Islander Affairs Submission (8 March 1995) at 6; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 13.

20. See, for example, Intellectual Disability Rights Service Submission (1 March 1995) at 14.

21. See, for example, Intellectual Disability Rights Service Submission (1 March 1995) at 14, New South Wales Council on Intellectual Disability Submission (4 April 1995) at 13; C Puplick The Last to be Served: A Review of the Adequacy and Comprehensiveness of the Provision of Services to Developmentally Delayed Inmates by the New South Wales Department of Corrective Services (Report to the Minister for Justice, 1994) at 28-29.

22. See, for example, Hayes and Craddock at 279-280; Mrs V Breheny Submission (14 July 1992) at 5.

23. Ms A Birgden Submission (15 February 1995) at 3.

24. Consultation with Disability Services Aboriginal Corporation on 10 October 1995.

25. Puplick Report at 21-26.

26. Puplick Report at 28-29.

27. See, for example, New South Wales Sexual Assault Committee Submission (August 1992) at 5; Mrs V Breheny Submission (14 July 1995) at 3; Puplick at 30.

28. Kingsford Legal Centre Submission (29 October 1992) at 5; New South Wales - Department of Family and Community Services, Office on Disability Submission (26 November 1991) at 2; Legal Aid Commission of New South Wales Submission (24 July 1992) at 4; Queensland Corrective Services Commission Submission (23 September 1992) at 1; Intellectual Disability Rights Service Submission (6 January 1992) at 4; Mr W Challis, Administrative Officer, Prisoner Classification and Placement, Department of Corrective Services, New South Wales Submission (25 June 1992) at 1; and Mr F De Silva Submission (17 March 1994) at 2-3.

29. The Missing Services Report at 3; and New South Wales - Department of Family and Community Services, Office on Disability Submission (26 November 1991) at 2.

30. Dr W Glaser Submission (23 August 1995) at 4-5; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 12.

31. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 158; New South Wales - Department of Corrective Services Submission (20 July 1992) at 1.

32. Kingsford Legal Centre Submission (29 October 1992) at 5.

33. Law Society of New South Wales Submission (24 August 1992) at 4.

34. For example, Intellectual Disability Rights Service Submission (16 October 1992) at 11. See also the Victorian Parliament Community Development Committee Inquiry into Persons Detained at the Governor’s Pleasure (Victorian Government Printer, October 1995), Recommendation 40.

35. Mrs V Breheny Submission (14 July 1992) at 4-5.

36. Letter from Ms J Woodhouse, Director, Ageing and Disability Services, New South Wales Department of Community Services to the Commission dated 29 January 1993.

37. New South Wales - Department of Community Services Submission (23 March 1995) at 2, and letter from Mr D Semple, Department of Community Services to Ms J Woodruff, Ageing and Disability Department, attached to letter from Mr J Jacobsen, New South Wales Council for Intellectual Disability to the Commission dated 8 May 1996.

38. New South Wales - Department of Family and Community Services [now Department of Community Services] Submission (21 January 1992) at 3.

39. Letter from Ms T Brown, Health and Community Services, Victoria to the Commission dated 11 December 1995.

40. Letter from Ms T Brown, Health and Community Services, Victoria to the Commission dated 11 December 1995.

41. Brain Injury Association of New South Wales Inc Submission (28 February 1995) at 43; Queensland - Department of Family Services and Aboriginal and Torres Strait Islander Affairs Submission (8 March 1995) at 6; New South Wales - Department of Corrective Services Submission (3 March 1995) at 1-2; Intellectual Disability Rights Service Submission (1 March 1995) at 14; Mental Health Advocacy Service Submission (21 February 1995) at 11; Illawarra Disabled Persons’ Trust Submission (23 February 1995) at 5.

42. Western Australia - Department of Corrective Services Submission (19 November 1991) at 3. See also New South Wales - Department of Corrective Services Submission (20 July 1992) at 1-2.

43. Ms A Birgden Submission (15 February 1995) at 6.

44. Intellectual Disability Rights Service Submission (1 March 1995) at 14; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 13.

45. New South Wales Council for Intellectual Disability Submission (4 April 1995) at 13.

46. Associate Professor S C Hayes Submission (31 August 1992) at 1-2.

47. Intellectual Disability Rights Service Submission (1 March 1995) at 14; Associate Professor S C Hayes Submission (31 August 1992) at 2.

48. See, for example, New South Wales Council for Intellectual Disability Submission (4 April 1995) at 13.

49. Office of the Public Guardian, New South Wales Submission (1 March 1995) at 8.

50. Intellectual Disability Rights Service Submission (16 October 1992) at 11. These safeguards were also supported in Ms A Birgden Submission (15 February 1995) at 6.

51. Intellectual Disability Rights Service Submission (16 October 1992) at 10.

52. Hayes and Craddock at 291. See also Ms A Birgden Submission (15 February 1995) at 7.

53. The Commission has already discussed the difficulties in predicting “dangerousness”: see NSWLRC DP 35, Chapter 12.

54. Mental Health Review Tribunal Annual Report 1994 at 57-58.

55. Mental Health Review Tribunal Annual Report 1994 at 65 (Table 35).

56. Puplick at 26; see also consultation with Disability Services Aboriginal Corporation on 10 October 1995.

57. Ms A Birgden Submission (15 February 1995) at 5.

58. See Office of the Public Guardian, New South Wales Submission (1 March 1995) at 8.

59. See Recommendation 54 in Chapter 10.

60. In New South Wales a pilot of home-based detention (“Intensive Community Supervision”) was launched in June 1992. An Act was recently passed to make the option more widely available, the Home Detention Act 1996 (NSW): New South Wales - Parliamentary Debates (Hansard) Legislative Assembly, 20 June 1996, Hon R J Debus, Minister for Corrective Services, Second Reading Speech at 3384-3386.

61. Crimes Act 1914 (Cth) s 20BY.

62. NSWLRC DP 35 at paras 11.67-11.70. See also, for example, Intellectual Disability Rights Service Submission (1 March 1995) at 15.

63. See, for example, Hayes (1994) at 3.

64. R Bray and J Chan Community Service Orders and Periodic Detention as Sentencing Options: A Survey of Judicial Officers in New South Wales (Judicial Commission of New South Wales, Monograph Series 3, 1991) at 19.

65. See, for example, Hayes and Craddock at 207-209. See also G M Crombie Residential and Community Based Options for the Remand and Sentencing of Intellectually Disabled Offenders in Victoria: A Proposal from Harrison Youth Services (Harrison Youth Services, Uniting Church in Australia, Victoria, 1988) at 19, which supported the provision of specially designed community-based orders for people with an intellectual disability, arguing such orders would “promote self-discipline and recognition of limits”.

66. See, for example, Intellectual Disability Rights Service Submission (1 March 1995) at 15.

67. See the Home Detention Act 1996 (NSW) s 8-11. See also Hayes and Craddock at 215-216.

68. S C Hayes “What corrections should offer the intellectually disabled offender - an idealistic view” in D Challinger (ed) Intellectually Disabled Offenders (Australian Institute of Criminology, Seminar Proceedings 19, Canberra, 1987) 85 at 89; consultation with representatives of the Office of the Director of Public Prosecutions, Police Prosecutors, Legal Aid Commission of New South Wales, Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission of New South Wales on 1 March 1994; consultation with solicitors from the Legal Aid Commission of New South Wales on 17 March 1994.

69. See, for example, Mr R Hogan, Director, Parole Service, Department of Corrective Services, New South Wales Submission (22 June 1994).

70. S C Hayes “Services for offenders: Mentally disabled prisoners - planning resources” (1991) 5 (2) National Council on Intellectual Disability: Interaction 32 at 34-35.

71. Letter from Mr C Kenna, Acting Director, New South Wales Probation Service to the Commission dated 27 February 1995.

72. Letter from Mr C Kenna, Acting Director, New South Wales Probation Service to the Commission dated 27 February 1995.

73. Letter from Ms B Smith, Director, New South Wales Probation Service to the Commission dated 24 March 1994.

74. See, for example, Hayes and Craddock at 205.

75. See Hayes and Craddock at 209 in relation to Community Service Orders.

76. For example, Intellectual Disability Rights Service Submission (1 March 1995) at 14; Law Society of New South Wales Submission (24 February 1995) at 4; Illawarra Disabled Persons’ Trust Submission (23 February 1995) at 5; New South Wales Police Service Submission (February 1995) at 16; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 13.

77. See, for example, Intellectual Disability Rights Service Submission (1 March 1995) at 15.

78. Intellectual Disability Rights Service Submission (1 March 1995) at 15.

79. Law Society of New South Wales Submission (24 February 1995) at 4.

80. See Crimes Act 1900 (NSW) s 432, 554, 556A and 558; Justices Act 1902 (NSW) s 49 and 96 and common law bonds.

81. See H R Wood and D L White “A model for habilitation and prevention for offenders with mental retardation: The Lancaster County (PA) Office of Special Offenders Services” in R Conley, R Luckasson and G Bouthilet (eds) The Criminal Justice System and Mental Retardation: Defendants and Victims (Paul H Brookes, Baltimore, 1992) at 153-165.

82. NSWLRC DP 35, Proposal 46.

83. See, for example, New South Wales Police Service Submission (February 1995) at 16; Illawarra Disabled Persons’ Trust Submission (23 February 1995) at 5; Mr R Hogan, Director, Parole Service Submission (13 January 1995) at 1; Brain Injury Association of New South Wales Inc Submission (28 February 1995) at 44; Queensland - Department of Family Services and Aboriginal and Torres Strait Islander Affairs Submission (8 March 1995) at 6; Community Services Commission Submission (2 March 1995) at 4; Intellectual Disability Rights Service Submission (1 March 1995) at 15-16.

84. New South Wales Probation Service Submission (27 February 1995) at 2.

85. New South Wales - Department of Community Services Submission (23 March 1995) at 3.

86. People with an intellectual disability found unfit to plead and who receive a limiting term, or who are found not guilty on the ground of mental illness and detained would receive supervision through the secure units recommended in Recommendation 57.

87. New South Wales Probation Service Submission (27 February 1995) at 3.

88. Wood and White at 162.

89. See Hayes (1994) at 18-19.

90. B Bodna “People with an intellectual disability and the criminal justice system” in Challinger (1987) 11 at 19.

91. Kingsford Legal Centre Submission (29 October 1992) at 2.

92. New South Wales Council for Intellectual Disability Submission (16 September 1992) at 7.

93. A number of submissions have stated that this group have unjustifiably been outside the DOCS target group: see, for example, the Office of the Public Guardian, New South Wales Submission (1 March 1995) at 9; New South Wales Council for Intellectual Disability Submission (4 April 1995) at 14.