'Disability justice advocate Taryn Harvey has met Gibson and has serious doubts that he understood what pleading guilty meant.'
Alcohol-damaged kids with FASD winding up in prison - Victoria Laurie & Paige Taylor - The Australian, 29 October 2015
"Ask teachers at Perth’s juvenile jail how many of their students display the telltale signs of foetal alcohol spectrum disorder and they invariably say: “Most of them.”
The truth about FASD is that it has crossed the justice frontier, with a growing realisation that people with brain injury caused before birth by their mother’s excessive drinking are highly likely to end up before the courts or in prison.
It is part of a seismic shift in attitude in Australia towards a growing cohort of offenders. FASD is hard to diagnose but strongly suspected by those who have seen it time and again. These days, the disorder has become obvious to judges who see it in their courts and defence lawyers who say they know very well when a client has it.
In Western Australia, criminal defence lawyers confide they don’t explore the possibility that their client has FASD because of a perverse disincentive in state law. Often they will endorse an accused person with brain damage, someone they know is not fit to plea, going to jail.
Even brain-damaged children have been passed off as fit to stand trial because the alternative is too terrible: the chance of indefinite prison time under an 18-year-old act of state parliament for accused people with a mental impairment.
Faced with an accused who has been assessed formally as unfit to plea because of a mental impairment, judges have two extreme options: unconditional release or indefinite jail.
The case of “Jason”, a 14-year-old boy who became a man in jail without being convicted of the crime that landed him there 12 years ago, has driven calls for reform. In 2003 he allegedly drove a stolen car that crashed, killing his young cousin. A headshot of him from that day shows a tiny boy later found to be permanently and profoundly mentally impaired. He was sent to juvenile and later adult jail, indefinitely.
Now the act that jailed Jason is under review. Meanwhile the West Australian Corrective Services Department is pouring resources into creating a screening test for FASD-affected prisoners. When completed, it will give the first clear picture of how many young prisoners have the condition and the test itself could be ordered by judges who suspect an accused is mentally impaired.
West Australian Corrective Service Minister Joe Francis’s Youth Justice Board has given $195,000 to the University of Western Australia towards developing the Fastrack Clinic, which the public would be able to use with a Medicare rebate.
However, there is concern that very large numbers of adults and children could be trapped in indefinite detention by the test unless the laws are changed first.
Another high-profile case was that of Northern Territory woman Rosie Fulton, who was held without trial in a Kalgoorlie jail for 21 months after allegedly crashing a stolen car in the West Australian goldfields in 2012. Fulton, 24 at the time, was found to have foetal alcohol syndrome and the mental age of a small child. She was eventually released to live in a house in Alice Springs with carers.
Jenni Greenham, Fulton’s former schoolteacher at Warakurna, 1700km northeast of Perth, recalls a girl who was very sweet but behaved bizarrely. Fulton would hug Greenham so hard she could not breathe, apparently unaware she was causing pain, and once Fulton appeared genuinely surprised after throwing sand in a teacher’s face and realising the teacher was temporarily blinded.
One of Greenham’s saddest memories is of Fulton, aged about 13, presenting a page of scribble and upside-down letters, believing she had successfully completed a writing assignment.
“She was so proud of herself,” Greenham says.
In August West Australian Premier Colin Barnett stood alongside an emotional Minister for Disability Helen Morton as she declared the Bennett Brook Disability Justice Centre open. This will be the place where accused people such as Fulton can go, rather than to a mainstream prison.
There had been strident opposition to the centre, with protesters declaring their suburb was not a dumping ground. Local TV reported no guarantees existed that paedophiles and murderers wouldn’t be held inside the centre. In fact nobody inside has been convicted of a crime. So far its only tenants are “Jason”, now 26, and another mentally impaired person who arrived last month; they are making steps towards a freer life with day release and behavioural therapy.
“This centre is a measure of Western Australia’s position on social justice and how we support some of the most vulnerable members of our community,” said Morton, who trod a difficult path in lobbying cabinet colleagues for the electorally unpopular facility.
West Australian Chief Justice Wayne Martin has been candid that one such centre may not be enough, since brain damage from FASD is increasingly becoming a factor in criminal cases. He says the problem is significant among indigenous accused but by no means confined to them.
There is growing suspicion that a traditional Aboriginal man from the southern edge of the Great Sandy Desert, Gene Gibson, is one of many people in jail with an undiagnosed disability caused by FASD. Gibson pleaded guilty to the manslaughter of Broome man Josh Warnecke after a prosecution case since shown to be riddled with flaws, including that a witness potentially crucial to Gibson’s defence was never revealed to the court and the startling revelation that police interviewed Gibson for hours without an interpreter. His first language is Pintubi and his grasp of English is known to be rudimentary.
While the Corruption and Crime Commission investigates the conduct of police in that case, Gibson’s former schoolteacher, Mitchell Drage, and others who know him have raised doubts about his mental capacity. Disability justice advocate Taryn Harvey has met Gibson and has serious doubts that he fully understood what pleading guilty meant.
On a recent trip to Perth to visit Gibson, his aunts Maisie Gibson and Monica Jurrah said he seemed to spend a lot of time weeping in his cell at Acacia Prison and was bullied by other prisoners.
“He tells me, ‘Aunty I am innocent’,” Maisie Gibson says.
Judges, magistrates and courts are facing the brutal facts of FASD. They know that in Aboriginal communities, hundreds of affected youngsters are growing up with diminished ability to know they did wrong, and even less ability to reform their behaviour.
At the Bennett Brook launch, Martin identified FASD as one of the earliest forms of disadvantage that led a disproportionate number of Aboriginal people into jail. “Those are people who suffer from intellectual or cognitive disability, perhaps caused by an acquired brain injury or a congenital or prenatal condition like foetal alcohol spectrum disorder: conditions often acquired through no fault of the person concerned and who have, often by reason of that condition, come into contact with the criminal justice system,” he said.
Experts have lobbied for the federal government to include FASD as a disability under the National Disability Insurane Scheme. But such moves are being made before the true — and probably daunting — dimensions of the disorder are known in Australia. The number of people who probably have it without being diagnosed is confronting for policymakers.
The first light was shed by a team of researchers and residents of Fitzroy Valley, where the first Australian prevalence study released last year showed about one in eight children born in 2002-03 had some form of foetal alcohol spectrum disorder.
Amnesty International spokeswoman Tammy Solonec says diagnosis and treatment should happen before FASD becomes a criminal justice issue. Her views are echoed by Perth Children’s Court magistrate Catherine Crawford, who says every child charged with a criminal offence should be screened for FASD “in a timely manner, and certainly before the matter is finalised by the court”.
She says experienced clinicians should assess a child before sentencing so the court understands the cognitive limitations that may have led them to commit a crime. And any child sent to a custodial institution should be screened “within 24 hours of intake”.
Crawford, a Churchill Fellowship recipient, has just completed a study of FASD-affected youth in the criminal justice system in Canada, the US and New Zealand.
She says offending children and youth with FASD in Australia have not been given much attention. “Indeed the awareness of FASD among justice professionals has been low,” she says.
Yet affected children caught up with the law may need an intermediary in court and the use of plain language. “Or they might need a youth probation officer to use pictures or icons to help them understand their obligations.”
Crawford says it’s likely that 25 per cent of youth incarcerated in Australia may be FASD-affected, “due to higher rates of alcohol consumption relative to other countries”. That is higher than Canadian figures, which reveal a 23.3 per cent incidence of FASD among 287 youth remanded in a youth forensic facility in British Columbia.
“(But) it remains difficult to have a person assessed for FASD in Australia,” she says. “There are few reported cases that mention FASD and even fewer where the defendant has been diagnosed.”
At Banksia Hill Detention Centre in Perth, Western Australia’s only juvenile jail, attempts are being made to come up with Australia’s first diagnostic tool to identify young people in detention suffering from FASD.
About 230 detainees aged between 10 and 17 are being tested by Telethon Kids Institute researchers in a $1.2 million study endorsed by the state corrective services. So far the first 27 young people have undergone screening; the result will be the first accurate estimate of FASD among young people inside Australia’s criminal justice system.
Institute researcher Raewyn Mutch applauds the co-operation of Western Australia’s Department of Corrective Services in the study: “It’s like someone wandering into your house and seeing how clean your bathroom is.”
She says the trajectory of many children affected by FASD “is to land on the doorstep of the criminal justice system”. But recognising the condition is complicated by the fact FASD-affected youngsters “may never meet the criteria that means disability yet they may have a lower range of normal neurocognitive function”.
“It’s not what people suppose, because very few children have an IQ below 70,” says Mutch.
It is widely hoped the study will shed light on the disproportionate number of jailed Aboriginal youngsters in Western Australia.
Martin has repeatedly raised the alarming statistic that 75 per cent to 80 per cent of children in state detention are Aboriginal. “That means an Aboriginal child has more than 50 times the chance of being in detention in WA than a non-Aboriginal child.”
Solutions are being sought as the problem’s dimensions are just being uncovered. Crawford is calling for youth bail hostels that can accommodate children and youth with neurodevelopmental disorders. A group of Kimberley clinicians has called for a trial of “therapeutic and culturally relevant pathways for identifying, rehabilitating and reintegrating offenders across the Kimberley with FASD”.
One proposal is to have a Kimberley juvenile outstation facility and make it the preferred option for magistrates sentencing Kimberley juveniles with FASD or a history of early life trauma.
Martin wants finite terms so mentally impaired accused cannot be held for longer than they would have been if found guilty of the crimes with which they are charged. Sadly, the state’s Chief Justice observes, there are probably already many brain-damaged prisoners serving time in Western Australia’s jails."
Ask teachers at Perth’s juvenile jail how many of their students display the telltale signs of foetal alcohol spectrum disorder and they invariably say: “Most of them.”