Should those with a mental illness be allowed a “get out of gaol” card?
Have you been arrested with a criminal offence and were suffering from a mental condition at the time of arrest which you believe relates to the offending? You may be able to have your matters dismissed by a court and receive no conviction. But before we show you how, its important to discuss – whether those diagnosed with a mental illness should be allowed the “get out of gaol card”
SHOULD THOSE WITH A MENTAL ILLNESS BE ALLOWED A “GET OUT OF GAOL CARD”?
Essentially if a person has mental illness should they escape gaol? There are several arguments which can be raised. One is yes, because by nature of their illness, they are not the same vehicle for general and specific deterrence, whereas the other argument is – as a citizen of society, they too deserve punitive measures for committing crimes and that means going to gaol when guilty if appropriate.
BUT WHAT IS A MENTAL ILLNESS?
One in every six adult Australians lives day to day with a mental illness and the cost is $11 billion per year to businesses, according to Beyond Blue. Thus Mental illness is not a figment of someone’s imagination. We know that anxiety, depression and substance abuse can destroy lives in a brutally indiscriminate way. Anyone who asks for help to process and control their demons must only be commended. Still, even in our enlightened 2018, genuine sufferers are reluctant to come forward for fear of being written off as a “nut job”, which only perpetuates their cycle of misery.
The law which governs this area is the Mental Health Forensic Procedure Act 1990 (MHFPA)).
Mental Health arguments can be made in both the Local Court jurisdiction (i.e. via what is known as a “section 32 or s33” application of the Mental Health Forensic Procedure Act 1990 (MHFPA)).
WHAT IS A SECTION 33 APPLICATION?
Suffice to say Section 33 of the MHFPA provides a way to deal with a defendant where “it appears to the Magistrate that the defendant is a mentally ill person”:
In particular if a person appears to be mentally ill, section 33(1) provides that the magistrate may:
(a) order that the defendant be taken to, and detained in, a mental health facility for assessment: s 33(1)(a), or
(b) if the defendant is found on assessment not to be a mentally ill person or a mentally disordered person, the person be brought back before the Court unless granted bail by a police: s 33(1)(b), or
(c) discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person: s 33(1)(c).
DOES A PERSON DEALT WITH UNDER SECTION 33 ESCAPE GAOL AND/OR A CRIMINAL CONVICTION?
The answer can be both yes and no depending on the situation and your outlook on mental health detention and their facilities.
The case for yes
If after notification on advice of the medical officer the police decide not to apprehend the person AND then 6 months passes the charge faced is be deemed to be dismissed.
The case for no
If after an assessment by the medical officer the defendant is found to be neither mentally ill person nor a mentally disordered person then the police are required by the s 33(1)(b) order to apprehend the defendant and bring the defendant back to court wherein he or she must then be dealt with in the usual way. This includes facing gaol if the crime so dictates.
One thing to remember
Under s33 a person can still be kept in a detention facility. It may be mental health detention facility but nevertheless it is still detention and thus can be equated to a quasi-type gaol (except there is no provable crime).
OTHER OPTIONS AVAILABLE IN THE LOCAL COURT?
In the local Court there is another option available for diversion from being dealt with according to law. That option is to apply for what is known as a section 32 (MHFPA).
WHAT IS A SECTION 32 APPLICATION?
A Section 32 application is a way for the Local Court to divert people with particular conditions who have been charged with a criminal offence out of the criminal justice system. Part 3 of the MHFPA contains all of the provisions relevant to summary proceedings before a magistrate relating to people with intellectual disability, other developmental disabilities and mental disorders. The magistrate’s powers are inquisitorial rather than adversarial in nature and the magistrate can inform him or herself in any way they see fit and without requiring the defendant to incriminate him or herself. There is no prescribed form for an application and generally applications are made orally. Magistrates will most often rely on written reports from experts and service providers and generally there is no need for the applicant to give evidence.
WHEN CAN A SECTION 32 APPLICATION BE MADE?
Under section 32(1), a section 32 application can be made at the commencement or at any time during the course of the proceedings. Section 32 has operation regardless of whether or not a plea has been entered. The requirement that a plea be entered before the determination of a section 32 application may amount to an appealable error.
WHAT DOES THE COURT LOOK AT?
If a s32 application is made the Court must look at what the public interest is in regard to those charged with a criminal offence facing the full weight of the law vis-a- vis the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from [the relevant health issue or disability]. Ensuring the community is protected from the conduct of such persons is also a concept the Magistrate must consider.
DOES A PERSON WHO IS SUCCESSFUL IN OBTAINING A SECTION 32 RECEIVE A CRIMINAL CONVICTION?
If an application under section 32 is successful, then no conviction will be recorded as there is no finding that the charge(s) have been proven. No gaol time will be served.