A two-year-long neuropsychological project involving adult Aboriginal people in NSW charged with an offence has found that 72% had significant cognitive impairment, with almost 50% of cases being diverted from custody when these findings were submitted to court at the time of their sentencing.
ABS figures show Aboriginal and Torres Strait Islander people make up approximately 2% of the general population aged 18 and over but represent 28% of the prison population nationwide. Aboriginal and Torres Strait Islander people with mental health issues and cognitive disability are over-represented in their contact with all aspects of the criminal justice system.
The results of the Aboriginal Assessment Project (AAP) were shown to a Magistrate in the Lismore area who would subsequently see and sentence some of the 45 participants. The law officer said the project had a “profound effect” on him, noting, “What if the offender is not really bad, mad, addicted (although elements of these are regularly present) but instead has a cognitive age of five?
“Rehabilitation, retribution, specific and general deterrence, and even denunciation are put in a different context when confronted with such drastically low levels of cognitive ability.
“We don’t lock up five-year-olds for obvious reasons, and it calls into question why we should lock up those with an equivalent mental age either. Of course I would like to see this project expanded outside this region, state and nationwide if possible.
“But more than that, we need a far more therapeutic setting to deal with these damaged people than the traditional court system. Just like we have Children’s Courts and Drug Courts and Circle Sentencing we do not have specialised courts or approaches to deal with those who suffer from a profound intellectual disability other than discharging them into the mental health system. It is completely inadequate in my opinion.”
The AAP was undertaken by two experienced neuropsychologists working pro bono, with travel expenses covered by the NSW Department of Communities and Justice. In the light of information gathered, around half of the participants were diverted from a custodial sentence.
Results included: 72% had impaired intellectual functioning, 74% had impaired verbal comprehension skills, 74% of participants had reading skills at the Year 3 level, 97% of participants had mathematical skills at the Year 2 level and 88% of participants had an impaired adaptive functioning.
Upon release from prison such detainees often require support to lead an independent life in the community, including housing and employment services.
Many Aboriginal and Torres Strait Islander people have never had their disability formally diagnosed until they enter custody due to a lack of access to specialists for diagnosis, lack of recognition of the diagnosis or a hesitancy to be diagnosed and labelled with a disability due to cultural bias,” the report states.
“Assessments could provide evidence of cognitive impairment, such as an intellectual disability, acquired brain injury (ABI) or Foetal Alcohol Spectrum Disorder (FASD). Without an assessment, there was an increased likelihood that a person would be given a custodial sentence.”
It adds, “Many Aboriginal people appearing at local court with cognitive impairment are often unemployed, have difficulty accessing support and rarely have the financial resources to pay for an assessment. Additionally, there is a paucity of neuropsychologists in rural areas.
“Often those with cognitive impairment find themselves in front of court for minor offences and they have difficulty comprehending the implications of their actions. Reduced understanding of the consequences of their actions can lead to recidivism and a continuing cycle of serving custodial sentences.
“By conducting neuropsychological assessments, we hoped to reduce the number of people being sentenced to a custodial term and hence reduce the number of Aboriginal and Torres Strait Islander people in custody.”
Some 96% of participants self-reported a history of alcohol and/or other drug (AOD) abuse, 38% reported that their parents had a history of AOD abuse, 7% were homeless and 40% of participants reported no history of paid employment.
Like the Lismore magistrate the project’s authors recommend rolling out the AAP program to rural and remote areas across NSW, stating, “In the long-term, neuropsychologists, similarly to medical doctors, should be encouraged to practice in rural areas. A rural stint should form part of the requirement when enrolling in publicly funding neuropsychological education programs in Sydney metropolitan areas.”