How justice is failing disabled Australians

Justen Thomas’s last court appearance was an all too familiar experience, having been in and out of the court system since the age of 14.

Despite his many brushes with the law, Mr Thomas is no run-of-the-mill offender. He has an intellectual disability which makes it hard for him to read and write, as well as digest complex information.

His experience illustrates the shortcomings of Australia’s criminal justice system, which advocates say fails to take into account the circumstances and needs of disabled offenders.

Problems start with contact with the police, as demonstrated by the recent uproar over leaked CCTV footage of a Melbourne man with a mental illness being beaten and abused by officers at his home. According to the Australian Institute of Criminology, 42 per cent of the 105 people shot by police across Australia between 1989-2011 had mental health problems.

Former Disability Discrimination Commissioner, Graeme Innes, says of the Victorian case: “It’s really representative of the problems that occur in the justice system, and much of it is because police are not appropriately trained to deal with people with disabilities.”

Eighteen per cent of Australians have a disability, yet they account for nearly half of Australians entering prisons – an over-representation condemned by Human Rights Watch.

Justen Thomas. Photo: supplied

Mr Thomas first came into contact with the criminal justice system because of unpaid fines and breaches of community service orders. Most recently, he was implicated in the theft of a potted plant.

Growing up in out-of-home care, Mr Thomas had little or no family support to keep him out of trouble.

“Growing up, I didn’t know about repeat offending and realised later in life it’s not worth repeat offending. I was vulnerable, hanging around the wrong crowd, doing stupid things I shouldn’t be doing,” he says.

Although advocacy services are available to help people with disabilities attend court and go through the legal process, experts say not everyone is receiving that support.

Mr Thomas has received assistance from one advocacy group, Intellectual Disability Rights Service. A spokesman for the group, Jonathon Kelleher, says: “People fall through the cracks, they don’t get identified as having a disability and then they don’t get the support that they need.

“A lot of those people are socially isolated, so they don’t have family or friends who can point them in the right direction. That is a huge gap that we see.”

Mr Innes says not only does Australia imprison more people per capita than other OECD (Organisation of Economic Cooperation and Development) countries, but it also has higher rates of imprisonment for people with disabilities.

“In the group that we should be compared against, we are right at the back of the pack,” he says.

NSW is one of the few Australian states that conducts a mental health screening of people coming into contact with the court system. By that point, though, Mr Innes believes it’s too late.

“That assessment needs to be done before someone goes into the court system, because by the time they’re convicted and go into prison we’ve missed another bus,” he says.

“Where we need to solve the problem is in the appropriate delivery of services to people with intellectual disability, so that they are supported to stay out of the justice system.” And if they do enter the system, “we need to assess them beforehand so that the magistrate has that information and can deal with the court matter appropriately”.

CCTV footage of Victorian police assaulting a disabled man. Source: Twitter/ABC News

According to the state’s Department of Justice, a trial program in Penrith Local Court this year aims to identify people with cognitive impairments, so magistrates can decide whether to direct defendants into rehabilitative  programs as an alternative to a criminal sentence.

NSW’s prisons are overcrowded, with a system designed to accommodate about 11,000 people currently holding around 12,500, according to recent NSW Bureau of Crime Statistics and Research figures.

The Institute of Public Affairs calculates the cost of keeping someone in prison at nearly $110,000 a year. The OECD average is $69,000.

Commonly, there are higher bail breaches among people with disabilities, often because they don’t understand the bail conditions.

“It wasn’t made clear in court and a person who can’t read a document that they’re given … just signs it because it’s easier,” Mr Innes says.

“One of the things that people with a disability desperately need, in a justice system which is not equal, is advocacy,”

Source of figures: Institute of Public Affairs

Mark Grierson, chief executive of another advocacy group, Advocacy Law Alliance, says many people with an intellectual disability have difficulty communicating in court. His group supports them through the process, “making sure they can communicate with their lawyer and … get a fair go behind the scenes”, he says.

“Legal aid lawyers often have many, many, clients in one day, and often people with a disability find it hard to get across what their issue is. The advocate will take the time to find that out and make sure their legal representative gets the information required.”

A University of NSW report led by Professor Eileen Baldry, a criminologist, identified economic benefits of reducing the numbers of disabled people being imprisoned.

The report concluded: “Millions of dollars in crisis and criminal justice interventions continue to be spent on these vulnerable individuals whose needs would have been better addressed in early support or currently in a health, rehabilitation or community space.” @Nina_Matijevic1, editing by Kathy Marks