In the Local Court of New South Wales, people charged with criminal offences affected by mental illness and other mental conditions may make an application under the Mental Health (Forensic Provisions) Act 1990 (the Act) for the charges to be dismissed due to mental illness.
Section 32 of the Act provides that a Magistrate may if, at the commencement or at any time during the course of the hearing of proceedings, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) developmentally disabled, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law.
The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or
In Director of Public Prosecutions v Sami El Mawas, Spigelman, CJ, Handley, J and McColl, JA set out the methodology for considering an application under the section.
- Is the defendant eligible to be dealt with under the section?
- Having regard to the facts alleged or other relevant material, is it more appropriate to deal with the matter under s.32 than according to law?
- If the answer to questions (1-2) is in the affirmative, what action should the Magistrate take pursuant to his or her power at s.32 (2) & (3) of the Act.
The first question is the jurisdictional question, whether the defendant is eligible to be dealt with under s.32. To be eligible the defendant must be (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) developmentally disabled, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility.
The second question is whether, having regard to the facts or such other relevant evidence, it is more appropriate to deal with the defendant under s.32 otherwise in accordance with law. This question:
“calls for the exercise of subjectivity or value judgments in which no single consideration and no combination of considerations is necessarily determinative of the result”.
Balancing public interest
As noted within the case of DPP v El Mawas, the Court is required to:
“balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s.32(1) or mental illness (s.33) with the object of ensuring that the community is protected from the conduct of such persons.”
The public interest in the defendant being dealt with under law needs to be balanced against the benefit to the public for the defendant having a meaningful treatment plan and support plan which will have the defendant receive the care and support that they need [and deserve] to address the underlying mental health difficulties to ensure that, as far as possible, the same or similar criminal conduct will not occur again in the future.
While s.32 does not expose a defendant to punishment in the strict sense, it involves the imposition of conditions restricting a discharged defendant’s freedom of movement and actions.
The Court must have regard to the seriousness of the offending conduct for which the defendant is before the Court.
Whilst in Confos v DPP  NSWSC 1159 Howie, J stated:
“in the determination of whether it is more appropriate to deal with an applicant under (pt 3) the Magistrate has to perform a balancing exercise, weighing up on one hand the purposes of punishment and, on the other hand, the public interest in diverting the mentally disordered offender from the criminal justice system. It is a discretionary judgement upon which reasonable minds may reach different conclusions in any particular case. But it is one which cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the Court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the Act.”
In El Mawas, McColl, JA made the following observation regarding the observation of Howie, J:
“I accept the respondent’s submission, which I do not believe the appellant gainsaid, that the s32 diversionary regime is available to serious offenders as long as it is regarded, in the Magistrate’s opinion, as more appropriate than the alternative. No doubt a Magistrate considering that question will consider whether proceeding in accordance with s 32 will produce a better outcome both for the individual and the community.”
A s.32 dismissal is available to serious offenders as long as it is regarded, in the Magistrate’s opinion, as more appropriate than being dealt with in accordance with the law.
Sentencing outcomes available
In Mantell v Molyneaux the Court held that a Magistrate may have regard to the realistically available sentencing outcomes in the event of a conviction. If a Magistrate considers that it is very likely that a non-custodial option would be appropriate this can be taken into account.
In the decision of Barnett LCM in Police v Deng, a Magistrate, when taking into account the available sentencing outcomes at law, also should consider that the law option would include supervision by Community Corrections in a situation where the applicant was already adequately supervised by appropriate professionals.
Support and Treatment Plan
Whilst there is no requirement in the legislation for a support or treatment plan to be presented as part of a s.32 application, almost all magistrates will require that a treatment plan is available before accepting a s.32 application.
As noted in Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993) the Court should have
“a clear and effect treatment plan and one which was likely to ensure that there would not be a repetition of the incident in question or occurrence of some other unfavourable incident.”
Duration of the final Order
The duration of a final Order is up to six months in length.
Effect of the Order
If a defendant is dealt with under s.32 the charge is dismissed and the defendant discharge. No criminal conviction is recorded.
Applications under the Mental Health (Forensic Provisions) Act 1990 are often complex applications requiring specialised knowledge of the law and involve expert medical evidence.
If you or someone you know has been charged with a criminal offence and if there is a possibility that, at the time of the alleged commission of the offence to which the proceedings relate, you or the person you know was developmentally disabled, or, suffering from mental illness, or, suffering from a mental condition for which treatment is available in a mental health facility, please contact Turnbull Hill Lawyers to discuss your options.
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