People with disability and impairment

The cases identified here provide examples of the way judicial officers have dealt with some of the issues raised in the context statement.

Click on the citation to be directed to a summary of the case in the Case Database.

  • Gray v Burt [2005] ACTSC 93 (23 September 2005) – Australian Capital Territory Supreme Court

    Bennett J at [9]-[10]: ‘Ms Keys also raises as a matter that the Magistrate should have taken into account and in Ms Keys' view did not; the rights of the respondent. In particular she refers to the Disability Services Act 1991(ACT), which provides for the fact that persons with disabilities have the same basic rights as other members of Australian society and gives particulars of those rights. I would have thought that such a concept did not need an Act to support it and should have been taken into consideration in any event.

    ‘I note that the Magistrate specifically referred to the expressed wishes of the respondent to continue the relationship with the appellant. His Honour specifically referred to her right to have a physical relationship if she so desired. However, his Honour concluded that the risk to the respondent resulting from such a relationship was such that he was unable to be satisfied that the order preventing such a relationship was no longer necessary for her protection. I repeat that there was unchallenged evidence before the Magistrate that it was the physical relationship between the parties that caused the respondent to suffer three separate fractures of her legs’.
  • R v Grech [1999] NSWCCA 268 (6 September 1999) – New South Wales Court of Criminal Appeal

    Carruthers AJ at [33]-[34]: ‘The relationship between a person in authority and an intellectually disabled person can be a sensitive one and involves, to use a well-known phrase of George Bernard Shaw, "fatal propinquity". It is a situation in which strong emotional relationships are quite capable of developing between carer and intellectually disabled person, whether they are of the same gender or not. It is essential, therefore, that persons in authority exercise the utmost care to avoid such situations developing, and immediately there are indications of such a situation arising, the obligation is on the person in authority to remove himself or herself from the relationship or, at the very least, immediately to seek expert counselling.

    ‘Neither of these courses was adopted in the subject case and, intolerably, the relationship developed into one of a continuing and prolonged violation of the provisions of s 66F(2). The applicant knew not only that he was in breach of his position of trust, but that he was in breach of the criminal law, and he was also aware that the complainant had previously been the victim of sexual exploitation and as a consequence a prior carer was serving a lengthy custodial sentence. The fact that the relationship may have developed, as the applicant contends, into a mutual loving relationship could fairly be described as an aggravating feature of the case rather than a mitigating factor’.

    At [37]: ‘For sentencing purposes the deterrent element necessarily looms very large with regard to s 66F(2) offences. It is the mark of a civilised society that those who are incapable fully of protecting their own interests, should be protected from exploitation by those in whom society vests the responsibility of caring for them. Carers who breach this trust must expect condign punishment. The instant case was one of a gross and prolonged breach of trust deserving of condign punishment’.
  • DPP v Maxfield [2015] VSCA 95 (12 May 2015) – Victorian Court of Appeal
    The defendant had stabbed her partner. The Court at [36]-[37]: ‘Ms Maxfield’s intellectual disability was of particular relevance to the sentencing exercise. As the High Court pointed out in Muldrock, a person who suffers from a mild intellectual disability is unlikely to be a proper vehicle for general deterrence. Moreover, ‘the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community’ (Muldrock v The Queen)’.
  • Earl v The Queen [2008] VSCA 162 (25 August 2008) – Victorian Court of Appeal
    Nettle JA at [23]: ‘Despite the limited nature and extent of the attack, and the injuries which it was shown to have caused, it was serious for the reasons given by the judge. The victim was a person with limited cognitive impairment and to that extent she was vulnerable and in need of care and support. As the applicant's wife, she was entitled to his love and protection and, instead of affording her that, he assaulted her in their home. As such, the offence involved a gross breach of trust in the place where the victim was most entitled to feel safe. General deterrence is of real importance in cases of domestic violence, especially in cases where victims are particularly vulnerable. And because of the applicant's prior convictions, aged as they were, it was apparent that there was a need for some measure of specific deterrence’.