A guide to summary offences committed by people suffering mental illness. This should not be construed as legal advice.
Introduction
Evidence has indicated that people suffering mental illness are considerably overrepresented in correctional centres than they are in the wider Australian community. Australian studies have reported that prevalence rates of 5–10 percent for mental illness among those on remand, and up to 14 per cent among those who have been sentenced. In response to these figures, the Australian authorities have implemented a variety of legal mechanisms to help divert the mentally ill out of the legal system. The purpose of this paper to provide a simple overview of how defendants with mental illness are treated in summary criminal proceedings, and indictable offences treated summarily in Local Court. The paper will not cover seriously indictable charges that must be heard before the District or Supreme Court. Its intent is to help those suffering from mental illness to obtain a greater understanding about the options available to them within the criminal justice system. The orders available under section 32 and section 33 of the Mental Health (Forensic Procedure) Act 1990 (NSW) (Hereafter MHFPA) will be covered separately.
Section 32
Section 32 of the Mental Health (Forensic Procedure) Act 1990 (NSW) sets out a way that allows applicants to be diverted outside of the existing criminal justice system, if they suffer from a mental condition. An application for this may be made at any time at the commencement or during the course of the proceedings before a Magistrate. Magistrates rarely make section 32 orders voluntarily, and defendants must make an application to the court. If defendants succeed in their section 32 application, their charge will be dismissed, they will not have a conviction recorded against their name and they will no longer face the prospect of punishment, provided that they have complied with all of the terms of the order made by the court. If the defendant has breached any conditions of the order within 6 months of it being made, they may be brought back to court to have the matter dealt with again. It should be noted that a section 32 order amounts to neither a finding of guilty or not guilty for the defendant, and while it is not included on a person’s criminal record, previously issued orders may be taken into account by the courts on future charges. The Section 32 order was created in order for magistrates to allow defendants to be dealt with in a more fitting and specific way appropriate to the circumstances of the defendant.
The jurisdiction of section 32 orders is limited in relation to both the offences and the people it applies to. Section 32 orders can only be issued to defendants who are before the Local Court on summary offences, or indictable offences that are dealt with summarily. As a result, section 32 applications cannot be made for offences being finalised before the District or Supreme Court.
As is evident, there are two main advantages for defendants seeking section 32 orders from the magistrate. The first is that a decision to dismiss charges under section 32 does not imply that the charges were actually proven. The second is that the defendant does not have to enter a plea of guilty, as section 36 does not require them to incriminate themselves to be considered for the order.
• Criteria considered in a Section 32 order
Defendants applying for section 32 orders must be able to meet several criteria under section 32(1). The first criteria is that the defendant must be either developmentally disabled, suffering from a mental illness, or is suffering from a mental condition for which hospital treatment is available hospital. Mental illness is defined in section 4 of the MHFPA as a condition that seriously impairs the mental functioning of a person, and whose symptoms include delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood, or sustained or repeated irrational behaviour indicating any of these symptoms.
The second criteria is that on the facts before the court, the magistrate considers it more appropriate to deal with the defendant with a section 32 order, than under the law. When assessing the appropriateness of dealing with the matter, the magistrate must consider the type of offence, the seriousness of the offence, the defendant’s prior criminal record, the link between the offence and the defendant’s condition, and the presence of any other reasons indicating that dealing with the defendant under the law would be ineffective.
Another matter that should be addressed in the application is whether family and medical support and supervision would be available to the defendant in their community, if they were to be discharged into the care of a responsible person. The treatment plan the defendant would follow upon release should also be given consideration.
Section 32(1) does state that an application can be made by the defendant at any time, which may imply that it can happen even if the defendant has been dealt with by the law a previous time resulting in a prior conviction. However, the case law on this issue is not completely settled, and not all Magistrates agree with this interpretation of section 32(1).
• Evidence necessary in a Section 32 application
A defendant must submit certain evidence to the court when making a section 32 application, the most important being psychological or psychiatric reports indicating how the defendant satisfies the section 32(1) criteria. Additional evidence which may be given consideration in court includes discharge summaries, hospital clinical notes, doctor and support worker reports and the police facts sheet.
• Implementing a Section 32 order
If Magistrates believe that these criteria are satisfied by the applicant, they can issue a section 32 order dismissing the charge and discharging the defendant. The defendant under section 32(3) may be discharged either into the care of a reasonable person, or on the condition that the defendant undergoes assessment of their mental condition or treatment, or be unconditionally discharged. There was initially some reluctance among magistrates to issue section 32 orders, because there was no legal mechanism for enforcing order conditions once they were issued. In 2004, the MHFPA was amended in order to allow magistrates, if the defendant breached conditions of the order for a period of up to six months after making it, to bring them back to court and have the charges dealt with again. Furthermore, if the defendant fails to appear before court, the Magistrate may issue a warrant for the defendant’s arrest. The Magistrate may also deal with the original offence as if the defendant had never been discharged, if the defendant fails to comply with any order condition. Nevertheless, it is not an offence to breach a section 32 order, and the only possible consequence of doing so is to have the Magistrate reconsider the original charges.
• Failing a Section 32 application
In the event of an unsuccessful section 32 application, defendants still have a range of options available to them. Defendants may then choose to make an application for the Magistrate hearing the case to disqualify themselves. Magistrates must do so if it that was the first time that a section 32 application was made in the current proceedings. However, even if a previous application under section 32 has been refused in the same proceedings, the subsequent Magistrate who hears a fresh section 32 application may also disqualify themselves if they consider it appropriate in the particular circumstances of the case.
Following sentencing in the Local Court, the defendant may also choose to exercise their right to appeal to the District Court. The appeal would be an appeal against conviction, or an all grounds appeal. If this appeal proves successful, the defendant may have the Judge overturn the conviction and then dismiss the matter by issuing a section 32 order.
Section 33
Section 33 of the MHFPA, is similar to section 32, but is only applicable to a defendant who at the time of the court appearance was a ‘mentally ill person’, as opposed to suffering from a mental illness or condition. Under section 14 of the Mental Health Act 2007 (NSW) a mentally ill person is defined as someone suffering from mental illness and, as a result of that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary to protect them or others from serious harm. This is what distinguishes it from a mental illness as defined in section 4 of the MHFPA, as being treated as a mentally ill person also requires there be reasonable grounds for believing that someone was at risk of harm due to the illness. But like with section 32, section 33 orders do not constitute a finding of the defendant’s guilt or lack of guilt.
The other key difference is that unlike a section 32 order, section 33 orders only may result in the dismissal of all charges. However, it remains at the Magistrate’s discretion under section 33(1) to do so, and they may also choose to order that the defendant be detained in a mental health facility for assessment. If after such assessment the defendant is found not to actually constitute a mentally ill person, then they may be brought back before the magistrate. The Magistrate may also order the defendant to be discharged into the care of a responsible person, or order mandatory treatment of the defendant under a treatment plan.
Unlike section 32, section 33 is usually utilized by the courts as an interim measure in the early part of a case, being designed to allow the defendant to receive a psychiatric assessment and any appropriate treatment. However, if the defendant is deemed to have sufficiently recovered to come back to court, the Magistrate may then decide to either dismiss the charges under section 32, or to continue under regular criminal procedures. The Magistrate also has the option to finalise the charges by dismissing them under section 33, by issuing a final order.
Getting Help
Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Mob: 0424 1999 04
Fax: (02) 9261 3341
Email: notguilty@astonlegal.com