This article is more than 4 years old

This article is more than 4 years old

Lawyers in Western Australia encourage intellectually disabled clients to plead guilty rather than invoke laws declaring them unfit to plead because they don’t want them to be indefinitely detained, a Senate inquiry has heard.

Under WA law, authorities can indefinitely detain people who have been ruled incapable of taking criminal responsibility and, because of a shortage of places in secure mental health facilities, they are often detained in jail.

The effect, the chief justice of the supreme court of WA, Wayne Martin, told a Senate inquiry in Perth on Monday, was that some people who ought to be declared unfit to plead chose instead to plead guilty because it would result in less time in jail.

WA received national scrutiny in recent years following cases including the detention of the Indigenous woman Rosie Anne Fulton in a Kalgoorlie jail.



Fulton, 26, from Alice Springs, was jailed for 18 months in the Eastern Goldfields prison despite being declared unfit to plead to a range of driving offences, because she was judged to be a danger to herself if released.

In another case, an Indigenous teenager was jailed for 10 years without trial after being declared unfit to plead at the age of 14. It was considerably longer than he would have been held if he had been convicted and sentenced.

Martin said the Criminal Law (Mentally Impaired Accused) Act 1996 should to be amended to give judges the option of imposing supervision orders or other community-based management orders on people declared unfit to plead.



While some people would have to be housed in a secure mental health facility, he said, for many people the risk could be managed in the community.

“Custody ought to be an absolute last resort,” he said. “And the problem is when you don’t have a middle ground between unconditional release and custody, you get to custody much quicker.”

He gave the example of a case in Kimberley, where a mentally impaired man, who suffered from foetal alcohol syndrome, had been charged with a “low-order” offence of behaving inappropriately toward children.

“It needed a supervision order … but I couldn’t impose those conditions so I had to take a punt: either lock him up indefinitely, which I wasn’t prepared to do, given the low-level nature of the offences, or take the punt and hope that the community would manage his behaviour themselves,” he said. “But you shouldn’t have to take a punt.”

Peter Collins, the director of legal advocacy with the Aboriginal Legal Service of WA (ALSWA), supported Martin’s comments, saying ALSWA lawyers “run from fitness to plead at a million miles an hour”.

“Everyone is acutely conscious and fearful of the prospect of a client being found unfit to plead and being subject to a custody order,” Collins told the inquiry.

“You can bet your bottom dollar that the overwhelming majority of Aboriginal people that are found mentally unfit stay in custody for a very long time and they stay in jails.”

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Collins said the act created a “terrible conundrum” for ALSWA’s lawyers and court officers.

“It’s unpalatable but it’s much better than being found unfit to plead with all of the possible ramifications that follow,” he said.

Collins estimated that 95% of Aboriginal people appearing before courts in WA had either cognitive disabilities or a mental illness, and said the solution should begin at better identification and treatment of these conditions in the community.

“If you bring a young kid into the system at a very early age, say 10 or 11, for a very minor offence… the die is almost cast,” he said.

“So the end point of that is more incarceration for Indigenous people,” Labor WA senator Pat Dodson asked.

“It’s a serious risk,” Collins replied.

WA has a dedicated forensic mental health facility and a separate pre-release centre that serves as a halfway house between jail and community release for people with a intellectual disability or severe mental illness. Both are located in Perth.

Neil Morgan, the inspector of custodial services in WA, said the facilities were “terribly limited” and inappropriate for many Indigenous people because they were separated from their support networks in regional areas.