Sentencing and the over-representation of people with cognitive disability in the Australian criminal justice system

ABSTRACT

People with Cognitive Disability (PWCD) are over-represented in Australian and International Criminal Justice Systems (CJS). Research has focused on the disadvantages experienced by PWCD which bring them into earlier and more continuous contact with the CJS than the general population. There has been little empirical analysis of how sentencing might contribute to over-representation. This article reports on a project which investigated: (1) the characteristics of PWCD who appeared before Queensland courts to be sentenced; and (2) the factors that judges considered during the sentencing of PWCD. An inductive thematic analysis of 34 sentencing remarks transcripts from Queensland’s Supreme and District Courts provided a descriptive overview to address the first component. Themes addressing the second component included: difficulties and disadvantages; capabilities; and the subjectivities of defendants. Interpreted using critical sociological perspectives on punishment, these themes demonstrated how judges navigated a tension between responding to defendants’ needs and protecting the community from a ‘dangerous other’. The community was often prioritised, contributing to the enmeshment of PWCD in the CJS. This adds to over-representation and raises the dilemma of how to respond to community safety concerns while meeting the potentially complex needs of PWCD without drawing them more deeply into the CJS.

KEYWORDS:

• cognitive disability
• impairment
• intellectual disability
• judicial decision-making
• punishment
• sentencing remarks

Introduction

‘Cognitive disability’ (CD) is a socially constructed term used to refer to a variety of diagnostic labels. These include some neurodevelopmental disorders, intellectual disability and associated impairments, disorders of intellectual development and the characteristics and experiences of some people on the autism spectrum, with an Acquired Brain Injury (ABI) or Foetal Alcohol Syndrome Disorder (FASD) (World Health Organisation [WHO], 2023). In this work, we conceptualise CD in terms of the social model of disability (People with Disability Australia, 2022) and adopt the approach of the Australian Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (referred to from now as the Disability Royal Commission, 2021). It is not the authors’ right to place boundaries around the experience of disability or impairment, and we reject the medical model of disability. In this research, People with a Cognitive Disability (PWCD) are understood to experience impairments related to cognition, intellectual functioning or learning which result from interactions with an ableist environment filled with physical, attitudinal, communication and social barriers. These interactions impact a person’s ability to engage in everyday activities and to participate fully and effectively in society on an equal basis with others (People with Disability Australia, 2022).

Despite difficulties with clear measurement of prevalence due to inconsistencies in assessment and recognition, PWCD are widely recognised as being over-represented in Australian and international Criminal Justice Systems (CJS). This has been documented by the Australian Disability Royal Commission and systematic reviews of prevalence research published between 1966 and 2014 (Fazel et al., 2008; Hellenbach et al., 2017; McBrien, 2003). Research on over-representation finds that PWCD can experience harms and disadvantages which criminalise and enmesh them within the CJS. That is, PWCD can be disproportionately vulnerable to coming into initial contact with the CJS and subsequently cycling in and out of prisons and corrective services (Baldry et al., 2013; Dowse et al., 2009; Greig et al., 2019; McCausland & Baldry, 2017). When considering how over-representation can be reduced, the Disability Royal Commission (2021) emphasised the current lack of useable data detailing the involvement of people with a disability throughout the CJS, the limited targeted research relating specifically to PWCD in the CJS and the urgent need for greater understanding of the processes resulting in their over-representation. There is also sparse critical criminological research examining the experiences and interactions of PWCD as offenders in court systems.

This article reports on research which investigated the characteristics of PWCD who came before courts in Queensland, Australia, and the factors that shape and influence sentencing decisions in those cases, to provide insight into the sentencing process for PWCD and examine how it may contribute to over-representation. The project consisted of an inductive thematic analysis of 34 sentencing remarks transcripts taken from Queensland District and Supreme Courts. From this, a picture of PWCD appearing before these courts to be sentenced, as well as of the factors that influenced judges’ sentencing decisions, could be developed. Using Bull’s (2010) development of Garland’s (1996, 2002) framework of cultures of control, we found that judges conceptualise the subjectivities of PWCD in contradictory ways, and this had the potential to contribute to their over-representation in the CJS. The paper begins with a brief overview of current research concerned with over-representation and an outline of the methodology used in our study. We conclude by discussing the results of our analysis using Garland’s (1996, 2002) conceptualisation of criminologies of the self and other. It illustrates that PWCD can be constructed by the sentencing process simultaneously as able to develop capabilities for self-regulation, and as a ‘dangerous others’ whom the community must be protected from. This provides conditions for criminal justice net-widening as PWCD who have offended become enmeshed more tightly and deeply into the system.

Literature review

A key theme in the research literature investigating over-representation seeks to determine the prevalence of CD among prison populations. Hellenbach et al.’s (2017) systematic review of prevalence literature notes, however, the challenges for developing a ‘clear picture’ in this regard (p. 239), particularly when the reported proportions of PWCD among prison populations range between 2% and 69% between some empirical studies. Including a focus on diagnostic labels and commonly operating from the medical model of disability, there are inconsistencies in research methodologies between empirical studies, and the often-inadequate assessment and recognition of impairment throughout the CJS presents a challenge when using official reported statistics (Hellenbach et al., 2017; McBrien, 2003). Nevertheless, there is a significant body of research interviewing criminal justice and disability support professionals, including the Disability Royal Commission (2021), which provides a range of evidence supporting the view that PWCD should be accepted as significantly over-represented in legal systems across the globe (see, eg, Dodd et al., 2022; Marinos et al., 2017; Richards & Ellem, 2019). Such research draws attention to the complex harms and disadvantages which can draw PWCD into initial contact with the CJS, and which the CJS can function to intensify the disabling impact of, making future criminal justice involvement more likely and drawing them deeper into prisons and corrective services (Baldry et al., 2013; McCausland & Baldry, 2017).

PWCD in prisons have been found to be more than twice as likely as prisoners with no CD to have experienced homelessness, more than 4 times as likely to be from out-of-home care¹ as other prisoners and more than 14 times as likely as the general population to be from out-of-home care (Baldry et al., 2013; Bhandari et al., 2015; Greig et al., 2019). In addition, they are significantly more likely than prisoners without CD to report experiencing depression, problematic substance use and very high psychological distress (Dias et al., 2013). In out-of-home care, experiences of abuse and neglect, a lack of security and sense of belonging, insecure attachments and a lack of community-based supports steer PWCD towards offending behaviour and the CJS, rather than appropriate systems of care and support (Greig et al., 2019). PWCD soon-to-be-released from prison have been found to have lower educational attainment and higher rates of unemployment than their counterparts with no disability. Poor educational attainment has been linked to both initial offending and re-offending, particularly among young people, and as a result, PWCD also experience significantly greater involvement with the youth justice system than the general population (Bhandari et al., 2015).

The situation for Aboriginal or Torres Strait Islander peoples with CD is amplified. Baldry et al. (2015) found that Aboriginal or Torres Strait Islander peoples who have a CD are significantly more likely than non-Aboriginal or Torres Strait Islander PWCD to come into contact with the CJS earlier and more frequently during their life, to have higher overall rates of conviction, a greater number of instances in remand, are more likely to have been in out-of-home care and have higher rates of homelessness. Aboriginal or Torres Strait Islander peoples who have a CD reported institutional discrimination and a ‘double stigma’ due, first, to their disability, and second, to a perceived dangerousness and ‘riskiness’ associated with their criminalisation (Baldry et al., 2015, p. 97). These negatively impacted their ability to obtain housing, employment, education, just legal outcomes and other supports which protect against ongoing criminal justice involvement.

The available empirical research addressing over-representation is focused on determining the prevalence of CD among remand, prison and correctional populations and the factors that bring PWCD into contact with the CJS. There is also some research concerned with the characteristics and experiences of PWCD as offenders and victims of crime in criminal court systems and custody settings (eg, Gormley, 2022; Marinos et al., 2017; Sullivan, 2017). Existing empirical research concerning the sentencing of PWCD focuses on determinations of fitness to plead, practices and efficacy of mental health courts and tribunals and operations of forensic and potentially indefinite detention (eg, Freckelton & Keyzer, 2017; Young et al., 2018; Spivakovsky & Seear, 2017). There is little recent research involving the empirical investigation of how PWCD who are found fit to plead are sentenced in criminal courts and how sentencing practices might contribute to over-representation. Our study addressed this gap through the analysis of sentencing remarks transcripts referring to cases in which the defendant had a CD. We did not adopt a doctrinal or legal perspective. Instead, this investigation socially situates the process of sentencing PWCD, and examines how PWCD are socially constructed by the courts, using Bull’s (2010) refinement of Garland’s (1996, p. 2002) conceptualisation of cultures of control. We shift the focus beyond the construction of contradictory criminal justice policy to reveal how sentencing processes can contribute to the embodiment of conflicting subjectivities of the personas of defendants in terms of the ‘self and other’ (Garland, 1996). These conflicting constructions of PWCD who have offended can then contribute to their over-representation. The following section outlines our methodological approach.

Methods

Accessing information about PWCD as they come to court and the considerations of their sentencing judges is difficult. The analysis of secondary data can overcome these difficulties. Sentencing remarks are verbatim transcripts of what judges have said during the sentencing of defendants and have been used in several empirical studies to describe the characteristics and representations of specific groups and offence types, the discourse surrounding victims, the representation and presentation of evidence and factors influencing judicial decision-making during sentencing (eg, Whittle & Hall, 2018; Sullivan, 2017). Following a methodology developed by Bull et al. (2021) to understand the characteristics of offenders and the decision-making of judges during sentencing, this study examined sentencing remarks transcripts from Queensland’s Supreme and District Court proceedings in which the defendant had a CD. The analysis was used to build a descriptive demography of PWCD coming to be sentenced and their offending behaviours, and a qualitative taxonomy of how they are sentenced and the considerations of judicial officers in these cases.

There are limitations to the use of sentencing remarks. These data were not collected by us and were collected for purposes other than research. Transcripts are restricted to what judicial officers mention and find relevant. Written transcripts miss unspoken or non-verbal information influencing, informing or adding context to what has been said. A strength of sentencing remarks, however, is that they are created to be a record of the judicial decision-making process, rather than information packaged for media or public consumption, or which has been groomed for departmental or other purposes. Sentencing remarks transcripts remain rich in the detail they do contain and provide insight into a relatively hidden process of criminal justice systems. They comprise surface information about the current offending and sentences imposed, can describe demographic details about defendants, such as their cultural background, age and gender, as well as detail social characteristics such as histories of offending, victimisation and punishment, educational and employment histories and accounts of health and wellbeing. They can also capture latent information about sentencing practices and processes, and of how judicial officers arrive at decisions during sentencing (Bull et al., 2021; Whittle & Hall, 2018).

Transcripts are published and publicly available through the Supreme Court Library Queensland (SCLQ) database for five years from the date of the sentence (https://www.sclqld.org.au/caselaw/sentencing-remarks). Sentencing remarks for Queensland’s Magistrates Courts are not publicly available. Data were gathered from Queensland’s Supreme and District Court transcripts between 15 March 2019 and 2 July 2021. Relevant cases were identified using the database’s search engine inputting search terms designed to capture common phrases used to refer to CD.² A total of 100 cases satisfied these search parameters. Cases needed to involve a defendant who had a recognised CD. Cases in which the disability or impairment mentioned referred to a person other than the defendant, such as a dependent of the defendant or to a victim, were excluded.

A convenience sample of 34 sentencing remarks transcripts was developed using these criteria. This project was approved by QUT Human Research Ethics Committee (approval #1700000156). All cases were de-identified. Published case names were replaced with a unique numeric identifier. For example, SRCase_001 refers to ‘Sentencing Remarks Case Number 001’. In addition, the presiding judge was referred to simply as ‘the judge’, and defendants were referred to as ‘the defendant’.

Our sample of sentencing remarks was analysed using inductive thematic analysis (Braun & Clarke, 2006). Transcripts were read to identify patterns and codes which were collated and developed into internally homogeneous and externally heterogeneous thematic groups. Themes were then interpreted and contextualised in relation to existing information and literature and Garland’s (1996, 2002) theoretical framework of criminologies of the self and other.

Garland (1996, 2002) describes how state policy responses to high crime rates at the end of the twentieth century corresponded with two contradictory representations of offenders. The ‘criminologies of the self’ construct offenders as rational opportunists who are not dissimilar from other members of the community and as people who can be guided to govern their own behaviour. Crime is considered normal and an everyday part of contemporary society. This criminology can be observed when crime is responded to in ways which focus upon the subjectivity of the offender and their capability as rational actors who can and will regulate their own behaviour. Sentences founded on deterrence, for example, assume that punishments will encourage offenders to change their behaviour. They construct the offender as capable of responding appropriately—in accordance with how a ‘normal’ person would be expected to respond—and the effectiveness of the punishment is dependent upon such a response. ‘Criminologies of the other’, in contrast, construct offenders as fundamentally different, dangerous, threatening and violent. They are constructed as people for whom the public can have no sympathy, as unable to govern their own behaviour and for whom there is no effective help. The state is constructed as having to protect the community from such offenders, and punishments are focused on community safety. Bull (2010) builds on this to consider how Garland’s framework can be extended to understand the conflicting ways that defendants can be imagined and the consequences this has for decisions made in relation to their punishment. Using this framework, the analysis considered how conflicting representations were expressed during the sentencing of PWCD and provided a lens to examine social implications of sentencing and punishment. The results of our analysis are discussed in more detail below.

Results

Characteristics of defendants and offending behaviours

Thirty of the sampled cases were heard in District Courts and four in Supreme Courts. Geographically, they were spread across Queensland. Twenty-three cases—20 District and 3 Supreme court cases—were in metropolitan and regional courts in the Southeast corner of the state: in Brisbane, Ipswich, Gympie, Kingaroy, Maroochydore and Southport. Three District court cases were in the central region of Queensland: in Bundaberg, Gladstone and Rockhampton. Seven District court cases and one Supreme court case were heard in Cairns and Mackay in North Queensland. The various terms judges used to refer to CD in these cases are listed in Table 1.

Table 1. Types and frequency of terminologies used to refer to ID.

Terminology	Frequency
Acquired brain injury	5
Cognitive deficits	2
Cognitive disability	1
Cognitive impairment	11
Foetal alcohol syndrome disorder	2
Impaired cognitive functioning	2
Intellectual difficulties	3
Intellectual disability	12
Intellectual impairment	11
Learning difficulty	5
Learning disability	2
Learning disorder	4
Low intellectual functioning	5
Mental disability	1

The ages of PWCD in our sample of transcripts were between 18 and 69 years. There were five cases where the age of the defendant was not mentioned. Most defendants were relatively young at the time of offending, with over half (n = 15; 52%) of the remaining 29 cases between 18 and 29. These findings are relatively consistent with ABS (2023) data describing the characteristics of Australia’s prisoner population. Between 2021 and 2022, the median age for all prisoners in Australia was 36 years, with prisoners aged between 25 and 34 making up over a third of both male (36%) and female (38%) prisoner populations (ABS, 2023). The PWCD described in our sample tended to be slightly younger than the Australian prisoner population. However, this included defendants who were sentenced to community-based and suspended custodial sentences in addition to those who ended up serving actual prison time. The data from ABS (2023) refers only to people in custodial settings. Of the nine PWCD who were sentenced to terms of imprisonment, one was aged between 20–29, three were aged between 30–39, another three were between 50–59, one was aged 60–69, and the age of the final defendant was not mentioned.

Defendants were predominantly identified as male (n = 23; 68%), 8 (24%) were identified as female and in three transcripts the gender of the defendant was not mentioned. Drawing upon the ABS (2022a), in the December quarter 2022, of the 41,029 persons in custody in Australia, 93% were male and 7% were female. Further, of the 78,927 persons serving community-based corrections orders in Australia within the same reference period, 81% were male and 19% were female (ABS, 2022a). The greater proportion of males coming before courts in our sample is consistent with reported trends in populations in custody and community-based corrections.

The cultural background of defendants was mentioned in only five cases. Three (9%) were identified as Aboriginal and/or Torres Strait Islander peoples, among which two were identified as Aboriginal and one was not specified, and two were from countries outside Australia. All three of the Aboriginal and/or Torres Strait Islander peoples were among the youngest in the sample. This is consistent with research indicating that Aboriginal people who have a CD come into contact with the CJS significantly earlier in their life than non-Aboriginal people with a CD (Baldry et al., 2015). According to the ABS (2022a), 13,197 of the 41,029 people in custody (32%) across Australia were Aboriginal and/or Torres Strait Islander peoples. Research indicates that the rate of CD amongst Aboriginal and/or Torres Strait Islander peoples in prisons is high (Baldry et al., 2015). The proportion of Aboriginal and/or Torres Strait Islander peoples in our sample was smaller than that in the broader custodial population. Though to find three in a convenience sample of 34 transcripts is nevertheless a signal of well-documented issues of over-representation.

Defendants had lower rates of educational achievement in comparison to the general population, but nearly two-thirds had good histories and prospects for employment. Table 2 provides an overview of educational and employment histories and opportunities. While this detail was not provided in all cases, the available information suggests that PWCD appearing before the courts have lower levels of educational attainment than the general population. For example, only two (6%) of the PWCD in our sample completed Grade 12 compared to 83.6% of the general population across Australia in 2020 having remained in school from Year 7 to Year 12 (ABS, 2022b). Twenty-eight transcripts referred to work histories, current employment or prospective opportunities. Nearly two-thirds of the sample (n = 21; 62%) were considered to have ‘adequate’ past, current or prospective opportunities for employment. However, over one-fifth (n = 7; 21%) had limited work histories or were identified as incapable or lacking adequate opportunities.

Table 2. Education and employment histories and opportunities of PWCD (N = 34).

Characteristic		n	%
Formal Educational Attainment (Australian)
	Did not complete Grade 12	16	47%
	Completed Grade 12	2	6%
	Education not mentioned	16	47%
Employment Histories and Opportunities
	Limited history or considered incapable	7	21%
	Past, current or prospective opportunities	21	62%
	Employment not mentioned	6	18%

Defendants in 21 cases (62%) had a comorbid mental disorder or presented with mental health concerns. Of those, 19 (90% of PWCD with comorbid mental health issues or disorders; 56% of the whole sample) also had comorbid problematic substance use. That is, most defendants came before courts with a trinity of CD, problematic substance use and mental health concerns or diagnosed disorders. These findings reflect patterns reported by the AIHW (2019) indicating that just under two-thirds (65%) of prison entrants in Australia in 2018 had used illicit drugs within the past 12 months. Further, in nearly half (n = 16; 47%) of the sample, the defendant had a history of being subject to physical or sexual abuse. Among that group, 13 (81% who had been subject to abuse; 38% of the whole sample) also engaged in problematic substance use. In our sample, approximately one-quarter (n = 8; 24%) of defendants were also from out-of-home care, and one person was mentioned as having been homeless in the past but had a residence at the time of sentencing. Comorbid physical disability was also mentioned in just under one-third (n = 11; 32%) of the transcripts.

Nearly three-quarters of PWCD (25; 74%) had a criminal history, with 18 having histories relevant to the current offending. That is, over half of this sample had previously engaged in offending behaviour considered similar to that which led to the current proceedings. When age is considered, a high proportion between 18–29 (11 of 15; 73%) had a criminal history. Seven (21%) PWCD referred to in transcripts had also been involved in some aspect of the Youth Justice System. Repeated contact with the CJS early in the lives of defendants in our sample is perhaps unsurprising given that PWCD are significantly more likely than people with no CD to make earlier and more frequent contact with the CJS, and to be incarcerated earlier and more frequently (eg, Richards & Ellem, 2019). The majority of our sample had been in custody or imprisoned previously, and half (17) had been victims of crimes themselves.

Table 3 details the types of offences committed by PWCD described in our sample of transcripts. The offending behaviours were varied. Several cases involved multiple indictable offences, indicating a level of versatility. Of the 50 indictable offences dealt with, most were either offences against person or persons or offences against property. There was a relatively high proportion (n = 11; 22% of the sample; 39% of the offences against person or persons) of child sexual abuse-related offending behaviours. However, there was an amount of variation and complexity to these offending behaviours. For example, there were three cases in which the offending was consistent and sustained, committed over a period of time over which the defendant had time to consider and reflect on their behaviours. This is compared to four cases that could be described as impulsive and opportunistic. Some judges implied it was not unreasonable to consider the defendant as having a serious lapse in sound judgement. In three cases, offending behaviour was versatile, and child sexual abuse was one among a range of other current and historical offending behaviours. In contrast, there were three cases in which the defendant had maintained a focused pattern of child sexual abuse-related offending. Finally, there was one case in which the defendant, aged 39 years, appeared to be in a ‘relationship’ with the 13–14-year-old complainant. There were relevant criminal histories in 6 (55%) of the 11 child sexual abuse cases. In four, the defendant had no criminal history, making this their first offence, and in one case the defendant had a criminal history, which did not feature previous child sexual abuse-related offending. In just under half (n = 5; 45%) of these cases, defendants had a history of being subject to abuse themselves. This relationship between childhood or adolescent victimisation commonly leading to subsequent sexual offending later in life has been well-documented, highlighting the need for therapeutic interventions and exploration of offenders’ own victimisation (eg, Ogloff et al., 2012).

Table 3. Types, number and proportion of different indictable offences (N = 50).

Offence Type		n	%
Against Person or Persons		28	56%
Child sexual abuse-related		11	39%
Deprivation of liberty		2	7%
Going armed as to cause fear		1	4%
Possession of child exploitation material		1	4%
Robbery		1	4%
Stalking		2	7%
Violence-related (eg, assault)		10	36%
Against Property		12	24%
Arson or fire-related		2	17%
Burglary		2	17%
Fraud		2	17%
Wilful damage		6	50%
Bomb hoax		2	4%
Drug-related		5	10%
Possession		3	60%
Trafficking		2	40%
Serious animal cruelty		1	2%
Unlawful use of a motor vehicle		2	4%

The descriptive overview of data describing defendants and the nature of their offending demonstrates that the characteristics of PWCD coming before Queensland courts are varied and multifaceted. While some have been able to find opportunities in employment, many in the sample had experienced substantial difficulties and disadvantages during their lives. This information helps to frame the sentencing of PWCD by highlighting the complex considerations that judges need to consider during sentencing. The section below builds on this by describing the nature of the sentences received before exploring the factors that shaped judges’ decision-making.

Table 4 describes the types and proportions of sentences imposed upon PWCD in our sample. A relatively high proportion were community-based sentences, accounting for 12 (35%) cases. However, 16 (47%) were sentenced to custodial sentences, of which 9 (56% of custodial sentences and 26% of the sample) involved serving actual prison time, and 7 (44% of custodial sentences and 21% of the sample) were suspended. Suspended custodial sentences were used to recognise time spent in pre-sentence custody, to facilitate treatment or supervision most effectively, or due to the defendant being deemed a lesser threat to community safety.

Table 4. Types, number and proportions of sentences imposed (N = 34).

Sentence Type		n	%
Community-based		12	35%
Custodial		16	47%
Serving		9	56%
Suspended		7	44%
Both (custodial followed by community-based orders)		6	18%

As Table 5 demonstrates, on average, sentences were between two and three years, but there was substantial variation in the length of sentences imposed. For example, the shortest custodial sentence involving actual prison time was 2 months and the longest was 54 months (5.5 years) imprisonment. Custodial sentences which were not suspended tended to be longer than other types of sentences, however, there was also a greater magnitude of range to these sentences compared to the others.

Table 5. Length of sentences imposed (months)—mean, median and range.

Sentence Type	Length of Sentence Imposed (months)
	M	Median	Range
Community-based	28.4	27	36
Custodial—Suspended	31.2	35	41
Custodial—Serving	35.9	39	52

Sentencing and decision-making

Our inductive thematic analysis identified several themes in sentencing remarks. These included consideration of the difficulties and disadvantages in defendants’ past lives, opportunities in defendants’ future lives and consideration of the subjectivities of defendants (Bull, 2010).

Difficulties and disadvantages

To some extent, the difficulties and disadvantages faced by defendants, and their future opportunities, have been signalled in the descriptive analysis above which summarises health and wellbeing challenges, educational and employment experiences and criminal histories. Difficulties and disadvantages experienced by PWCD were acknowledged by judges in 31 (91%) cases. The following quotation provides an example of how judges generally approached the range of difficulties and disadvantages which defendants navigated throughout their lives. In SRCase_002 the judge explains:

You have had, on any analysis, a profoundly disadvantaged upbringing and life. You were exposed to violence as a child and born to an alcoholic parent. You were raised by other extended family members. You were placed in foster care as a young teenager. … You left school at about year 9 after having learning difficulties. You started abusing alcohol and cannabis and solvents at a very young age. … You were subjected to domestic violence by your former partner. … You have a cognitive impairment and a significant intellectual disability. … You also have some physical health problems.

Sometimes, judicial officers focused on specific factors in more detail when they were considered relevant to the current offending. For example, SRCase_023 focused on a history of abusive family conditions, referencing a doctor’s opinion that this may have aggravated the current offending behaviours. Such cases indicate how judicial officers addressed the complexity of the difficulty and disadvantage experienced by PWCD, and in doing so, how they attempted to contextualise offending behaviours within the entirety of defendants’ lives and histories.

Capabilities

When referring to our second theme, judges considered the potential future opportunities available to defendants in 27 (79%) cases. This involved discussion of the capacity for PWCD to be, to become, or the extent to which they have been, a ‘productive member of the community’ and the services and people available to support them. For example, in the quotation below, the judge referred to the efforts made by the defendant to continue pursuing work in addition to their good history of employment:

You commenced a cabinet-making apprenticeship and you completed that successfully and I’m satisfied you’ve been employed in that capacity ever since. More recently, your employment was terminated because of a lack of work available and that hasn’t stopped you continuing to look for work. So I’m satisfied also that you have been a useful member of the community, contributing member in the sense that you have been employed and maintained yourself in that way. [SRCase_005]

Some judges offered personal encouragement and were supportive of opportunities for PWCD to develop their capabilities:

I do note that you would like to live with your uncle and you have a job offer in [his] butcher shop. That is excellent, actually. A lot of people do not have that. So to have that opportunity is very good. I am impressed by that. [SRCase_017]

Consideration of capabilities appeared to indicate suitability for PWCD serving their sentence out in the community, rather than being incarcerated or being subject to less strict probation orders and supervisory conditions. For example, the support available to one defendant, and the opportunities to strengthen their capability, resulted in the presiding judge concluding that a suspended custodial sentence with an operational period was sufficient, and the possible probationary period with strict supervision was not necessary:

I was inclined to consider an order that included strict supervision, such as probation with a condition that you complete a sex offender’s treatment program. However, in light of the steps you’ve taken towards engaging with that process yourself and the level of support that you have in the community from family, and the effect of a suspended sentence hanging over your head, as it were, for the operational period, it does seem to me that probation is not necessary and that a suspended sentence can serve all of the necessary purposes that the sentence should meet. [SRCase_005]

Histories and prospective education and employment appeared central to judicial consideration of opportunities for PWCD to develop capabilities, avoid re-offending and breaching community-based orders and become ‘a useful member of the community’ (SRCase_005). However, this may be problematic in the current context given people with disability, especially those with histories of offending behaviour, experience systemic barriers and exclusion from education and employment (eg, Darcy et al., 2016). Such focus during the sentencing process may constitute disability in terms of the medical model and contribute to the individualisation of risk factors, necessary supports and accommodations, rather than acknowledge structural and societal barriers. It may construct people with impairments as needing to be ‘normalised’ to engage in education and employment, and consequently, to develop capabilities to support their rehabilitation in terms of offending behaviour (Darcy et al., 2016).

Subjectivities

In making their decisions, 31 (91%) judges discussed the applicability of various sentencing principles. In our analysis, following Garland (1991), we make a distinction between principles of sentencing and sociological understandings of punishment. In doing so, we abstain from a critical assessment of the relevance of sentencing principles of punishment such as rehabilitation, retribution, deterrence or just deserts in these cases. There is an enduring debate about the relative merits of sentencing principles that is beyond the scope of this paper. We approached our analysis by adopting a sociological perspective as developed by Bull (2010). This was instructive in understanding the effect of judicial sentencing on the over-representation of PWCD in the CJS in Australia. It allowed us to define a third theme that emerged from our inductive analysis involving the judicial construction of the subjectivity of defendants which can be discussed according to two subthemes: criminologies of the self and criminologies of the other (Garland, 1996). These are explored in more detail below.

Criminologies of the self and criminologies of the other were expressed through the justification of decisions judges provided in their sentencing. In all but three (n = 31; 91%) cases, judges mentioned purposes of sentencing referring to well-known principles of deterrence; protection of the community, denunciation or rehabilitation. This is linked to the provisions of Queensland’s Penalties and Sentences Act 1992. Judges determined the relative applicability of these principles through an assessment of the subjectivity of the defendant (Bull, 2010). This involved consideration of whether the defendant could be treated in terms of ‘criminologies of the self’: as a rational actor, not dissimilar from other members of the community, who can and will regulate their own behaviour. Sentences founded on deterrence, for example, assume that punishments will encourage offenders to change their behaviour; they construct the offender as a calculating subject who, once cognisant of the consequences of their offending, will adjust their behaviour. This may involve some coaching and support commonly associated with rehabilitation. ‘Criminologies of the other’, in contrast, construct offenders as fundamentally different, dangerous, threatening, violent and unable to regulate their own behaviour. It is the responsibility of the state to protect the community from such offenders, and punishments from this perspective are focused on incapacitation and community safety (Garland, 1996, 2002).

Criminologies of the Self. Throughout the transcripts in our sample, the sub-theme of Criminologies of the Self was evident in the tendency of judges, after taking into account the difficulties and capabilities of PWCD, to indicate an overarching focus and rehabilitation, rather than deterrence, incapacitation, denunciation or protection of the community. Judges focused on the ability of the defendant to develop the capability to regulate their own behaviour through rehabilitation. This was evident in the quotation from SRCase_005 above referring to ‘the steps [the defendant had] taken towards engaging with that process [themselves]’ as a justification for a suspended sentence which does not involve the close supervision or monitoring associated with probation. Similarly, the quotation below illustrates how judicial officers evaluated the defendants’ subjective capability to be active in their own rehabilitation and prevent future offending:

[U]nless you deal with the underlying problems surrounding those abuse issues, then it is more likely you will go back to drugs. So that is why you will need to get this help … I think you get the 10 counselling sessions with a psychologist … you have done a number of courses [in custody]. And I was quite impressed with your relapse prevention plan, actually. I think you have thought about how you can avoid using drugs. … So I hope you put that to good use when you get out. [SRCase_017](Emphasis added)

In a different case, the judge in SRCase_009 discusses how rehabilitative principles provided a rationale for probation orders. In this example, illicit drug use and psychiatric illness were determined as contributing towards offending and potential re-offending:

It is necessary that I explain the purpose of a probation order. It is a mix of punishment and rehabilitation. It will mean that people can keep an eye on you and make sure that you take the prescribed medication and steer away from illicit drugs and manage your illness. [SRCase_009]

Here, the goal of sentencing is to support the defendant to develop their own capability to not re-offend, rather than deterring them or preventing them through incapacitation.

Criminologies of the other. Deterrence as a principle of sentencing is generally associated with criminologies of the self. It is a fundamental principle in the application of punishment in the Queensland Penalties and Sentences Act 1992. It relies on a conceptualisation of the offender as a ‘normal’ or knowing actor who has the capacity to change when they are exposed to the consequences of their behaviour (Bull, 2010). In several cases, however, the defendant’s subjectivity—determined in relation to their intellectual or cognitive capability—was considered to reduce the relevance of deterrence, and they came to be constructed in terms of the other. For example, in one case the judge explained that:

[T]he diagnosis of the psychologist which I have referred to reduces your moral culpability for this offending. … It also means that you are not an appropriate vehicle for general deterrence, and that personal deterrence is less important in this particular case. [SRCase_026]

Criminologies of the other focus on the needs of the community rather than those of the offender who is imagined as a dangerous other. Protecting the community was a principle judges often referred to in the sentencing of PWCD. Under this principle, the harm to the community caused by the offending behaviour is of primary concern, and punishment functions to prevent defendants from re-offending, often through incapacitation, to protect the community from further harm. This was evident in the assessment of the potential for non-compliance with community-based orders among some PWCD in our sample. According to judges, this constituted a risk to the community. As one explained:

[O]ur community also needs to be protected and when you do not comply with conditions, either of court orders or of forensic orders in respect of your mental health issues, then the community is more at risk. [SRCase_012]

Some defendants were constructed as a danger to the community due directly to their intellectual or cognitive impairments. In the extract below, the judge describes how the absence of assistance to engage with rehabilitative services positions the defendant as a danger to the community who must therefore be kept on a ‘short leash’:

The authorities all make it plain that the moral culpability of someone who has your intellectual disability is lessened. … But, that on the one side, while it may lessen the sentence that might otherwise be imposed, it provides on the other hand a greater risk to the community. … [The community-based sentence] is intended to keep you on a short leash, because you are, I think, a danger to the community unless you are adequately assisted to progress positively with your rehabilitation, and you will require a great deal of assistance, on my assessment, having regard to the psychiatric evidence. [SRCase_019] (Emphasis added)

In another case, the judge similarly mentions the protection of the community as a key consideration:

Sentencing someone for offences involving violence requires the Court to take into account the risk of physical harm to people in the community, the need to protect people in the community … a probation order in the community with some special conditions would give you support not to re-offend, but also give the community protection by having you supervised on your release. [SRCase_013]

This example demonstrates that sentencing PWCD for the purpose of protecting the community often resulted in some form of close supervision because of the risk posed by some defendants’ perceived inability to regulate their behaviour. Probationary orders involving close supervision were implemented to respond to the needs of the community through incapacitation and monitoring of the defendant. However, this was balanced with the possibilities of rehabilitation, which implicitly acknowledged the conflicting subjectivities that can make up the persona of PWCD who have offended (Bull, 2010).

Discussion and conclusion

The Disability Royal Commission (2021) highlighted that, despite awareness of the substantial over-representation of PWCD in prisons and corrective services, little is known about the processes which contribute towards this over-representation. How PWCD come to be over-represented in criminal legal systems represents a complex web of systemic problems covering a diversity of social areas and academic disciplines. The purpose of this article has been to provide some insight into an aspect of a process which may contribute to over-representation through empirical research examining the nature of the sentencing of PWCD in Queensland. It reports on a qualitative analysis of 34 sentencing remarks transcripts from Queensland’s Supreme and District Courts between 2019 and 2021 in which a person with a CD was sentenced. We highlight some of the complex and difficult experiences of many PWCD coming before the courts, the substantial variation between cases in the nature of offending behaviours and the types and lengths of sentences imposed.

Our inductive analysis identified three themes in considerations made by judges during the sentencing of PWCD: the Difficulties and Disadvantages experienced by PWCD; their Capabilities; and the conflictingly constituted Subjectivities of PWCD who have offended in terms of the ‘self’ or ‘other’ (Garland, 2002). Consideration of difficulties and capabilities was frequently informed by approaches that refer to the criminologies of the self (Garland, 2002). Sentencing orders involving rehabilitative approaches sought to build the capabilities of PWCD who have offended so that they can become ‘functioning and effective members of the community like everyone else’ (Henderson, 2021, p. 65). In several cases, however, sentencing legislation determined that deterrence—a fundamental principle of sentencing—did not apply specifically because the defendant was not ‘like everyone else’. For example, in SRCase_026 the defendant’s CD diagnosis reduced their ‘moral culpability’, diminishing the applicability of specific deterrence. General deterrence was also not applicable because the defendant was not considered sufficiently relatable or representative of the general population due to their impairment. This reinforced the constitution of PWCD as ‘other’ and raises questions in relation to the pertinence of criminal jurisdiction, given fundamental sentencing principles were not applicable.

There was a strong consideration of the need to protect the community, particularly when there was a perceived dangerousness associated with PWCD. This often resulted in sentences involving close supervision intended to provide a ‘short leash’. This prioritisation positions PWCD in relation to criminologies of the other through their construction as a danger to the community and as incapable of governing their own behaviour (Garland, 1996). Responding principally to the perceived needs of the community was balanced against rehabilitation which responded to the needs of the defendant by cultivating capabilities for self-regulation and freedom. The former most often won out.

Judges appeared to be navigating conflicts between different purposes of sentencing through consideration of apparently conflicting subjectivities of PWCD (Bull, 2010). As a result, they were challenged with balancing the needs of the community against those of the defendant. Sentencing judges appeared to be attempting to reconcile the tension between the principles of protection of the community and rehabilitation. Thus, they sought to strike a balance between governing defendants’ perceived dangerousness and supporting evident capabilities and potential to be functioning members of the community. While most sentences were focused on keeping defendants out of jail and helping with rehabilitation by being community-based orders or suspended custodial sentences, this was balanced by a perceived need for tight supervision to protect the community. Navigating this tension raises a complex dilemma. Constructions of PWCD as the ‘other’ can be stigmatising and ableist and are opposed to the purposes of rehabilitation which prioritise integration and inclusion in the community (Bull, 2010). Moreover, constituting PWCD as other, through sentencing decisions that required close supervision to protect the community, is likely to result in what Cohen (1985) described as net widening. PWCD can be subject to a greater number of technical violations of community-based orders due to the potential complexity of surveillance, monitoring and reporting conditions (see, eg, Marinos et al., 2017). This can also occur due to conditions imposed for treatment and rehabilitation. Closer scrutiny of PWCD who have offended can increase their likelihood of breaching conditions, leading to an increased frequency of sanctions and enmeshing them more deeply into the criminal justice net. We conclude that this is one way in which sentencing decisions may contribute to the over-representation of PWCD within the Australian criminal justice system.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 ‘Out-of-home care’ refers to when young people are given up or removed from the care of their birth family and placed in foster or temporary care.

2 For example, these included ‘cognitive impair*’, ‘intellectual disab*’ and ‘learning disab*’. A range of terms was needed due to the definitional difficulties and diversity of terms used to refer to CD.