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Critical reflections on the diversion of defendants with intellectual disability and acquired brain injury from the New South Wales Local Court

Conference Paper


Abstract


  • Persons with intellectual disability and acquired brain injury are overrepresented in and experience disadvantage within the New South Wales criminal justice system. Diversion from the criminal justice system into disability support services pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (‘Section 32 Diversion’) is identified as one way to address some of the issues faced by this group. Section 32 enables a Magistrate to make an order diverting a defendant with intellectual disability or acquired brain injury out of the criminal justice process and into the disability support system. This generally involves dismissal of the criminal charges conditional upon compliance with a ‘treatment plan’ which seeks to address underlying psychological, behavioural and medical aspects of the individual’s alleged offending. To date there has been an absence of critical analysis of Section 32 Diversion. This paper provides some critical reflections on Section 32 Diversion through applying a critical disability, Foucauldian methodology to an analysis of the legal and practical framework of Section 32 Diversion and the preliminary findings of empirical qualitative research of section 32 matters in the Local Court. This critical analysis suggests that Section 32 Diversion enables the criminalisation and regulation of defendants with intellectual disability and acquired brain injury in ways that extend beyond the capacity of the criminal law to deal with these individuals through conviction, sentencing, and punishment.

Publication Date


  • 2011

Citation


  • L. Roslyn. Steele, 'Critical reflections on the diversion of defendants with intellectual disability and acquired brain injury from the New South Wales Local Court' (Paper presented at the XXXIInd International Congress on Law and Mental Health: Humboldt University Berlin 2011, Humboldt University, Berlin, Germany, 17-23 July).

Start Page


  • 169

End Page


  • 170

Place Of Publication


  • http://www.ialmh.org/Berlin2011/Abstract%20Book%20-%20Berlin%20Final.pdf

Abstract


  • Persons with intellectual disability and acquired brain injury are overrepresented in and experience disadvantage within the New South Wales criminal justice system. Diversion from the criminal justice system into disability support services pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (‘Section 32 Diversion’) is identified as one way to address some of the issues faced by this group. Section 32 enables a Magistrate to make an order diverting a defendant with intellectual disability or acquired brain injury out of the criminal justice process and into the disability support system. This generally involves dismissal of the criminal charges conditional upon compliance with a ‘treatment plan’ which seeks to address underlying psychological, behavioural and medical aspects of the individual’s alleged offending. To date there has been an absence of critical analysis of Section 32 Diversion. This paper provides some critical reflections on Section 32 Diversion through applying a critical disability, Foucauldian methodology to an analysis of the legal and practical framework of Section 32 Diversion and the preliminary findings of empirical qualitative research of section 32 matters in the Local Court. This critical analysis suggests that Section 32 Diversion enables the criminalisation and regulation of defendants with intellectual disability and acquired brain injury in ways that extend beyond the capacity of the criminal law to deal with these individuals through conviction, sentencing, and punishment.

Publication Date


  • 2011

Citation


  • L. Roslyn. Steele, 'Critical reflections on the diversion of defendants with intellectual disability and acquired brain injury from the New South Wales Local Court' (Paper presented at the XXXIInd International Congress on Law and Mental Health: Humboldt University Berlin 2011, Humboldt University, Berlin, Germany, 17-23 July).

Start Page


  • 169

End Page


  • 170

Place Of Publication


  • http://www.ialmh.org/Berlin2011/Abstract%20Book%20-%20Berlin%20Final.pdf