Legal_Case

People with cognitive and mental health impairments in the criminal justice system in the case of D. D is a 16 year old girl, who was removed from her family home at an early age due to sexual abuse and suffered further abuse while in foster care. She has a history of behavioural problems including self-harm and outbursts of physical violence, sometimes involving knives and other sharp objects. D breaks into her mother's house and stabs her in the throat with a knife, she is remanded in a juvenile detention center where she becomes enrolled in a cooking class, and she is very excited about doing this class and asks staff whether there will be knives there. During the morning recess she becomes more excited about the the large knives they have been allowed to use. After the break, the teacher asks her to stop stabbing her knife into the cutting board, damaging the knife. A few minutes later D takes the knife and stabs it into the back of the teacher, who dies. D is charged with murder and with the attack on her mother. She is not capable of participating in a trial because of what is described as a severe personality disorder and some intellectual deficits. At a special hearing which is the substitute trial process used in these situations, the judge makes finding that she is not guilty of murder but, on the limited evidence available, that she committed the offence of manslaughter based on the defence of diminished responsibility. In NSW, if there is a finding at a special hearing that the unfit accused committed the offence; the court nominates the sentence that would have been imposed at an ordinary trial. With the prosecution appealing to the Court of Criminal Appeal, on the grounds that the judge failed to take into account future danger to the community. D's limiting term increased to a total of 13 years. Community protection has always been a feature of the criminal justice response to people with cognitive and mental health impairments; it reflects both real risk and community fear and misunderstanding. This meant indefinite detention of people who were unfit or not guilty by reason of mental illness. It is now recognised that the community is protected by the treating and managing the person’s impairment. Fairness to the defendant is important in cases where the person does not have the mental capacity to participate in a trial because they are not in a condition to defend them then there cannot be a fair trial. Punishment is meant for retribution and to deter the offender and others from doing the same thing, it doesn't work if the person conduct was not really a choice but arose from an impairment in D case being told by her cooking class teacher not to use the knife in the manner she was using it. Treatment and support have found their way into the criminal justice response partly because of advances in our understanding of cognitive and mental health impairment and the availability of medication. A number of human rights recognise the rights of people with cognitive and mental health impairments to appropriate treatment and support both in the general community and in prisons. The current law is based on the 1843 case of Daniel M'Naghten and reflects quite old notions of what insanity involved, the defence is available if a person because of a disease of the mind, and did not know the nature and quality of the act, or did not know the act was wrong. In D's case the psychiatric evidence was not sufficient to support a defence of mental illness. Yet her behaviour in killing the detention centre employee was clearly influenced to a large degree by her mental state. In NSW, there are no special sentencing options for people with cognitive and mental heal impairments, in contrast most Australian and overseas jurisdictions have treatment-oriented options, such as hospital orders and conditional release with a requirement to undergo treatment or participate in rehabilitation programs. Key provisions for diversion in cases like D are sections 32 and 33 of the Mental Health( Forensics Provisions) Act, section 33 applies only to a person who is mentally ill at the time the of the hearing so as to be a danger to himself or others and to require treatment. The magistrate can refer the person to hospital for assessment and or treatment or make a community treatment order. Section 32 applies to a person who has mental illness, developmental disability or mental condition either at the time of the offence or the time of the hearing. In D's case the evidence was that she is likely to remain very dangerous for a long time possibly 30 years, an indefinite order may be more appropriate because she can receive compulsory care and or detention for as long as is necessary to avoid the risk she poses. But if she does not receive the treatment and care that she needs, that would have the same effect as locking her up and throwing away the key.