Mental illness and health issues affect many individuals within our community. The effects of this are that the person suffering the mental condition is often brought into the criminal justice system when they would not ordinarily be a person who has experienced any issue with the law previously.
This will usually result in the person and their family placed under pressure which at the end of the day, if not handled professionally, will only add to what is already a challenge for all concerned.
In circumstances where a person comes before the Court in a criminal matter where that person understands the court process and the difference between right and wrong but still suffers from what might be considered to be a mental health condition, they can be diverted from the criminal justice system (and as such, punishment) in certain circumstances.
People who fall into this category can be dealt with under the Mental Health (Criminal Procedure) Act 1990.
MENTAL HEALTH (CRIMINAL PROCEDURE) ACT 1990 - SECT 32
32 Persons suffering from mental illness or condition.
2. The Magistrate may do any one or more of the following:
3. The Magistrate may make an order dismissing the charge and discharge the defendant:
The legislation (as the Mental Health Act) first appeared in 1990 and the (then) Minister for Health said the Act would:
“provide the opportunity for those suffering from a mental illness or a mental disorder to get the care and treatment they need. The primary objective of this treatment will be to ensure that the individual can have as normal and satisfying a life as possible. This should ensure that the community is protected adequately from abnormal or threatening conduct of a mentally ill or mentally disordered person.
At the same time the Bill protects the civil liberties of the mentally ill. Any restriction of personal freedom will be only the minimum necessary for the well-being of the individual or for the protection of others."
See New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 22 March 1990 at 886.
In Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154 (19 June 2006) Spigelman CJ, Handley, J and McColl, JA set out the methodology for considering an application under section 32.
The approach (as set out at [75] by McColl, JA) is most effectively summarised by the posing of the following 3 questions to be considered by the Magistrate:
In all cases, the court will not allow the matter to be dealt with under section 32 unless the defence has provided a detailed ‘treatment plan' setting out the treatment strategy for the person including the medical practitioners involved, the frequency of treatment and medication regime.
If the magistrate agrees to dispose of the matter under section 32, the court will not impose a conviction penalty but will order the person to comply with the treatment plan.
If the person fails to do this, the court can call them back and have the matter dealt with according to law which may result in a conviction or other punishment.
Contact Sharon Ramsden on sramsden@marsdens.net.au or phone (02) 4626 5077.
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