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van der Giezen, John; Sacha, Prem-Tej --- "Unfit to Plead: Unsentenced Prisoners in Western Australia" [2002] IndigLawB 23; (2002) 5(16) Indigenous Law Bulletin 10

Unfit to Plead: Unsentenced Prisoners in Western Australia

by John van der Giezen and Prem-Tej Sacha

The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) (‘the Act’) was proclaimed in November 1997. This legislation sought to recognise that people with a decision-making disability, who came into contact with the criminal justice system, needed their disability recognised and respected. Unfortunately in Western Australia, an unintended outcome has been that a number of Aboriginal men[1] have been given indefinite detention under this legislation, which has resulted in them serving extraordinarily long periods in prison.

Unfit to Plead

If someone charged with a criminal offence (‘the defendant’) comes before a court the issue of their fitness to stand trial can be raised by the prosecution, defence or the presiding judicial officer.[2] The presiding judicial officer determines the defendant’s fitness by ‘informing himself or herself in any way the judicial officer thinks fit’.[3] Thus far this has always involved ordering a psychiatrists’ report. If the psychiatrist makes a decision that the person cannot understand the court process and is therefore unfit to plead, the normal process of the court will not proceed, and the judicial officer must then decide what should happen to the defendant. They may find that a custody order (ie an order that the person be gaoled) is warranted, either for the safety of the community, or due to the lack of proper resources and supports for adequate supervision in the community.[4] The Act itself provides little guidance to the judicial officer on these issues.

Being imprisoned in this way does not mean that s/he is a sentenced prisoner. No sentence has actually been imposed, and it seems to be this fact that has created something of an impasse. The defendant is incarcerated under a custody order, but as they have not been sentenced under the Sentencing Act 1995 (WA) they cannot initially participate in or complete programs that could qualify them for release or parole. This has created the situation whereby a person may be detained indefinitely, not because the alleged offence warrants a custodial sentence, but because of the constraints within the community. In some cases people have been gaoled in this way for offences which, in the absence of a disability, would at most result in a short or suspended sentence or a fine. An unsentenced prisoner must apply to the Mental Impaired Defendants Review Board (‘the MIDR Board’) to be able to be released into the community.

It became evident that the people likely to be caught in the predicament of becoming an unsentenced prisoner were Aboriginal, and unlikely to have been receiving any appropriate disability support services while in the community. At the time this paper was written, nine of the ten people in prison on indefinite detention were Aboriginal.

Human Rights Implications

We argue that the indefinite sentencing of mentally impaired defendants is a human rights violation in contravention of the Universal Declaration of Human Rights, to which Australia is a signatory. We suggest that these defendants have had their rights under Articles 2, 7, 8 & 11 violated.

Article 2 states that everyone is entitled to equal protection of their fundamental human rights without distinction as to race (amongst other things). Article 7 states that all people are equal before the law. As stated above, at the time of writing this paper nine of the ten people incarcerated on indefinite sentences were Aboriginal. The rights of these people can only have been upheld if this ratio reflects the ratio of Aboriginal to non-Aboriginal people with decision-making disabilities who come into contact with the justice system. This clearly is not the case. It appears that, in contravention of Articles 2 and 7, these Aboriginal people are not being treated as equal before the law.

Article 8 states that ‘[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’ People in indefinite detention, whose fundamental rights are possibly being violated, must approach the MIDR Board to obtain release. The members of the MIDR Board are also members of the Parole Board.[5] It is for perhaps this reason that the focus of release plans recommended by the MIDR Board is on the safety of the community, rather than adequately acknowledging the possible violation of rights of unsentenced prisoners. This system, we would argue, fails to provide an ‘effective remedy’ for unsentenced prisoners.

Article 11 states that everyone has the right to be presumed innocent until proven guilty. It also asserts that ‘[n]o one shall be held guilty of any penal offence on any account of any act or omission, which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.’ We would argue that the fact that some people detained under the Act have been imprisoned for far longer than they would have if actually sentenced for the alleged crime, contravenes the spirit of this article.

Working for the Release of Unsentenced Prisoners: A Multi-Agency Approach

We became involved in the matter of indefinite detention at the invitation of a Department of Justice Community Corrections Officer who was concerned at the plight of a young Aboriginal man in prison on indefinite detention for over two years. A variety of agencies, both government and non-government, were contacted and recruited to assist with this process. This contact resulted in the formation of a working party. The challenge was to develop a release plan that would satisfy the MIDR Board,[6] and provide an appropriate level of support for his maintenance in the community. This collaboration between a number of agencies, and the process that resulted, has since been used to secure the release of other Aboriginal men.

The key agencies involved in developing release plans have been the Department of Justice, the Aboriginal Community Support Service, an agency of Derbarl Yerrigan Health Service, the Disability Services Commission and the Office of the Public Advocate. Close liaison and clear communication with all ‘components’ of the working party and contributors to the plan, from initial planning and assessment, to completion of the plan presented to the MIDR Board, was essential. This eventually involved many more players than the original working group, as release plans were developed to include adequate support in the community.

The need for a legal guardian

At an early stage of this work, it became evident that if the person could not understand the court process or enter a plea, they could not provide consent for any involved person to take action that could result in their release back into the community. The only way to deal with this problem was to seek the appointment of a guardian for the unsentenced prisoner in the Guardianship & Administration Board. This served two purposes. Firstly it meant that the guardian could legally decide which of the available options was in the best interests of the defendant. Secondly it provided the working party with someone who could solely represent what was in the defendants’ best interests and not be constrained by processes, policies or funding limitations of other agencies’ in the working party. The Guardianship & Administration Board has appointed the Public Advocate as guardian. On occasions a family member and the Public Advocate have been appointed as joint guardians.

Consulting with family members

In keeping with the principles of natural justice the working party decided that it was appropriate to include, as much as possible, the family in the planning process. Aboriginal people do not have a lot of trust in government agencies, and may be reluctant to enter into any meaningful communication with the working group, particularly if Mental Health or the Department of Justice is involved. Much depends on the relationship between key workers and family members, and it is therefore advisable to include Aboriginal workers to assist with the initial contacts. It is important for involved workers not to misinterpret what may be initial reticence on the part of family members, as a lack of interest. It is also important to be sure that the Aboriginal worker is acceptable to the family, and this at times has meant the provision of extensive family histories and genealogies. These workers should have continued contact with the family throughout the process and for a considerable period following release. Non-Aboriginal workers also need to be careful not to assume knowledge of agencies or processes undertaken, and be prepared to explain in detail not only what they are doing, but why they are doing it and who they are.

Adequate consultation with family members, who often live in small communities, country towns or isolated areas, is imperative to the process of preparing release plans. It can cause great offence and jeopardise any plan developed if the right people are not adequately consulted or if a release plan is developed without their knowledge and participation.

Balancing considerations in formulating release plans

A delicate balancing act was required in addressing the quality of life issues present for the defendant. On the one hand we wished to ensure that the person would have adequate support, activities, and a meaningful existence in the community, including opportunities for recreation, training and employment where possible or practical. On the other hand we did not want to be overly rigorous in defining support needs that may not be possible to put in place, thus preventing the defendant from being considered for release.

Working with the Mentally Impaired Defendants Review Board

Through the process of developing proposed release plans, considerable communication developed between the working party and the MIDR Board, which greatly assisted the process. It is admirable that supervision arrangements have not been a major issue, and that the arrangements imposed by the MIDR Board have been at least comparable to any mainstream case.

The ripple on effects

The development of this process has now started to have ripple effects. Family members, lawyers and workers in the field are more prepared to intervene prior to court appearances or during the court process, due to a better understanding of the potential consequences of being found ‘not fit to plead’. This provides the opportunity to develop community based support plans, which give the judicial officer an alternative to having the defendant deemed ‘unfit to plead’ and subsequently incarcerated under a custody order. We are happy to report that in several cases, vulnerable people have avoided gaol through the provision of some basic supports in the community.


Interventions have continued on a case-by-case basis, and at present the workers and others are still involved regularly with defendants who are at risk of being incarcerated on indefinite detention. However the issues of law reform and further education still need to be addressed. The Human Rights and Social Justice Committee of the Western Australian Association of Mental Health have made a submission to the Attorney General of Western Australia to review the Act. Additionally, the Mental Health Law Centre is organising a series of forums to inform members of the judiciary and legal practitioners of the scope for interpretation of the legislation in order to avoid, wherever possible, unnecessary and unjust incarceration.

We have found that in the process of writing this paper we have come across significant questions that will need to be responded to at some stage in the future. These questions are:


The situation of unsentenced prisoners in Western Australia is changing. Members of various working parties continue to intervene on a case by case basis, with some degree of success. These same members are also involved in providing educational forums to lawyers, magistrates and psychiatrists and through representation on a peak body in the mental health field are lobbying for a review of the Act. As a result it is hoped that the experience of those with a decision-making disability who come into contact with the legal system in the future, will not be so bleak.

John van der Giezen has worked as a social worker in the mental health field for the past twelve years and for five years exclusively with Aboriginal people. He has a strong commitment to addressing human rights issues. Prem Tej Sacha has worked in a variety of social work positions over the last decade, and was involved in this project in his position as a guardian at the Office of the Public Advocate in Perth, Western Australia.

[1] In our experience all the defendants were men.

[2] Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) s 11(2).

[3] Ibid s 12(1),(2).

[4] Ibid s 16(5),(6).

[5] Ibid s 42.

[6] See Ibid s 33(5) for what MIDR Board looks at in deciding whether or not to release an unsentenced prisoner.

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