Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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3.38 People with a cognitive impairment, such as an acquired brain injury can experience a
range of disadvantages, which can increase the risk that they will become involved in the
criminal justice system. For example, many people with an acquired brain injury who have
contact with the criminal justice system face a range of complex circumstances and have
complex needs, which can be exacerbated by that contact. They may also experience
co-existing mental illness, alcohol or drug dependence, health complaints, breakdown of
the family unit or unstable accommodation. 44
3.39 There is no clear causal link between acquired brain injury and offending. Nevertheless,
some of the cognitive-behavioural changes that commonly occur with an acquired
brain injury can increase the risk of a person’s contact with the criminal justice system.
These include disinhibition and impaired impulse control, poor social judgement, lowfrustration
tolerance and anger and aggression. 45 However, the Law Reform Committee
noted that people with a cognitive impairment ‘tend to have a more diverse range of
lived experiences … These experiences could include more formal education and training,
employment, and long-term relationships with spouses and friends’. 46
Fetal alcohol spectrum disorder
3.40 Another cognitive impairment that has prompted recent concern regarding contact with
the criminal justice system is fetal alcohol spectrum disorder. This impairment is associated
with excessive consumption of alcohol by mothers during pregnancy. It can result in
particular physical features and ‘a complex pattern of cognitive impairments, including
learning difficulties, poor impulse control and deficits in capacity to exercise judgment,
social abstraction, language expression and memory’. 47
3.41 Fetal alcohol spectrum disorder is a ‘functional impairment’ that affects the executive
functions of a person such as decision making and interaction with others. 48 It is one
of the foremost non-genetic causes of intellectual impairment. 49 Fetal alcohol spectrum
disorder has been identified as a significant issue in some Indigenous communities in
Australia, 50 although ‘it is no means confined to them’. 51 In Victoria, it occurs equally in
Indigenous and non-Indigenous births. 52
3.42 There is little data on the prevalence of the disorder Australia-wide or in the criminal
justice population in the Australian, or Victorian, context. 53 However, two Commonwealth
Parliamentary Standing Committees have recognised the connection between fetal
alcohol spectrum disorder and the involvement of young people with the criminal
justice system. 54 Most recently, in 2012 the Standing Committee on Social Policy and
Legal Affairs in its report on a national approach to the prevention, intervention and
management of fetal alcohol spectrum disorder recommended that it be recognised that
people with fetal alcohol spectrum disorder have a cognitive impairment. 55
44 Brown and Kelly, above n 36, 5.
45 Edgar Miller, ‘Head Injury and Offending’ (1999) 10(1) Journal of Forensic Psychiatry and Psychology 157.
46 Law Reform Committee, above n 23, 40–1.
47 Ian Freckelton, ‘Fetal Alcohol Spectrum Disorder and the Law in Australia: The Need for Urgent Awareness and Concern to Translate into
Urgent Action’ (2013) 20 Journal of Law and Medicine 481, 482.
48 Dr J Mein, Medical Officer, Apunipima Cape York Health Council, Committee Hansard, House Standing Committee on Social Policy and
Legal Affairs, Inquiry into Fetal Alcohol Spectrum Disorders, 31 January 2012, 17.
49 Ernest L Abel and Robert J Sokol, ‘Fetal Alcohol Syndrome is Now Leading Cause of Mental Retardation’ (1986) 328 (8517) Lancet 1222.
50 Priscilla Pyettfor et al, Fetal Alcohol Syndrome: A Literature Review for the ‘Healthy pregnancies, healthy babies for Koori communities’
project (Premier’s Drug Prevention Council, Department of Human Services, March 2007) 5.
51 Freckelton, above n 47, 484.
52 Kelly Allen et al, ‘Estimating the Prevalence of Fetal Alcohol Syndrome in Victoria Using Routinely Collected Administrative Data’ (2007) 31
Australian and New Zealand Journal of Public Health, 62–66.
53 Freckelton, above n 47, 485.
54 Parliament of Australia, House of Representatives, Standing Committee on Aboriginal and Torres Strait Islander Affairs; Parliament of Australia,
House of Representatives, Standing Committee on Social Policy and Legal Affairs.
55 Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into Fetal Alcohol Spectrum Disorders (2012) [5.139].
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