Legal Case

People with cognitive and mental health impairments in the criminal justice system in the case of D. D is a 16 year old girl, who was removed from her family home at an early age due to sexual abuse and suffered further abuse while in foster care. She has a history of behavioural problems including self-harm and outbursts of physical violence, sometimes involving knives and other sharp objects. D breaks into her mother's house and stabs her in the throat with a knife, she is remanded in a juvenile detention center where she becomes enrolled in a cooking class, and she is very excited about doing this class and asks staff whether there will be knives there. During the morning recess she becomes more excited about the the large knives they have been allowed to use.
After the break, the teacher asks her to stop stabbing her knife into the cutting board, damaging the knife. A few minutes later D takes the knife and stabs it into the back of the teacher, who dies.
D is charged with murder and with the attack on her mother. She is not capable of participating in a trial because of what is described as a severe personality disorder and some intellectual deficits. At a special hearing which is the substitute trial process used in these situations, the judge makes finding that she is not guilty of murder but, on the limited evidence available, that she committed the offence of manslaughter based on the defence of diminished responsibility.
In NSW, if there is a finding at a special hearing that the unfit accused committed the offence; the court nominates the sentence that would have been imposed at an ordinary trial.
With the prosecution appealing to the Court of Criminal Appeal, on the grounds that the judge failed to take into account future danger to the community. D's limiting term increased to a total of 13 years. Community protection has always been a feature of the criminal justice response to people with cognitive and mental health impairments; it reflects both...