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Diverting

mentally disordered offenders in the NSW Local Court

Monograph 31 – March 2008Judicial Commission of NSW

Divertingmentally disorderedoffenders in the NSW Local Court

Tom GotsisSenior Research Officer (Legal)

Hugh DonnellyDirector, Research and Sentencing

Published in Sydney by the:

Judicial Commission of New South Wales

Level 5, 301 George Street,

Sydney NSW 2000

DX 886 Sydney

GPO Box 3634

Sydney NSW 2001

www.judcom.nsw.gov.au

National Library of Australia

Cataloguing-in-publication entry

Author: Gotsis, Tom.

Title: Diverting mentally disordered offenders in the NSW Local Court/Tom Gotsis, Hugh Donnelly.

Publisher: Sydney: Judicial Commission of New South Wales, 2008.

ISBN: 9780731356225 (pbk.)

Subjects: New South Wales Local Court.

Mentally ill offenders — Legal status, laws, etc. — New South Wales.

Mentally ill offenders — Mental health services — New South Wales.

Mental health laws — New South Wales.

Other Authors/Contributors:

Donnelly, Hugh, 1965

Judicial Commission of New South Wales.

Dewey Number: 364.3809944

© Judicial Commission of New South Wales 2008

This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under the

Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying,

photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior

permission. Enquiries should be addressed to the publisher.

The views expressed in this monograph are the views of the individual authors and do not represent any official

views of the Judicial Commission of New South Wales, nor are they necessarily shared by all members of the

staff of the Commission. Whilst all reasonable care has been taken in the preparation of this publication, no

liability is assumed for any errors or omissions.

Editor: Fleur Findlay

Graphic design and typesetting: Lorraine Beal

Printed by: Emerald Press

Judicial Commission of New South WalesSummary

III

Summary of issues that emerged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

Use of s 32 orders in the Local Court 2004–2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

Non-compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

The nature of the decision to divert under s 32(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Ambiguity about the duration of ss 32(2) and 32(3) orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii

Unfitness and s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Treatment plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Coverage of s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

The resources debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The recorded incidence of people suffering mental conditions in NSW . . . . . . . . . . . . . . . . . . . . . 2

Number and nature of s 32(3) orders imposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Table 1: Persons discharged by way of a s 32(3) order, 2004–2006 . . . . . . . . . . . . . . . . . . . . . . 4

Nature of offences committed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Table 2: Type of offences (ASOC) category dealt with by s 32 orders, by number of counts, 2004–2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The statutory scheme in a national and international context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The statutory history of s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The current statutory scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Exercising the s 32 discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Matters relevantly taken into account under s 32(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The seriousness of the offence(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Six-month enforceability limit of orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Existence and content of treatment plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Interlocutory orders under s 32(2) and the duration of s 32(3) orders . . . . . . . . . . . . . . . . . . . . . . 14

The importance of a treatment plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Treatment outcome data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Table 3: Suggested information required in treatment plans & related reports . . . . . . . . . . . . . . 18

Contents


IV

Enforceability: Failure of defendants to comply with a s 32 order . . . . . . . . . . . . . . . . . . . . . . . . . .19

Reports from service providers: s 32A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Call ups and further proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

The breach figures 2004–2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Table 4: Breaches of conditional s 32 orders, 2004–2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

The survey and breaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Is the six-month enforceability period long enough? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Section 32 and unfitness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Other issues raised by magistrates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

The coverage of conditions under s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

“Developmentally disabled” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

“Mental illness” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

“Suffering from a mental condition for which treatment is available in a hospital/mental health facility” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Trial into the efficacy of s 32 orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Future directions: A therapeutic evaluation of s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

The resources debate and s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

Appendix 1: Text of ss 32 and 32A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Appendix 2: Questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

Table of cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

Judicial Commission of New South WalesSummary

V

Summary of issues that emergedUse of s 32 orders in the Local Court 2004–2006Section 32 of the Mental Health (Criminal Procedure) Act 1990 enables mentally disordered defendants facing criminal charges in the Local Court to be diverted by the court from the criminal justice system. Defendants diverted under s 32(3) between 2004–2006 represented only a small fraction of those who appeared in the Local court.i Nearly 80% of defendants subject to a s 32(3) order were discharged conditionally into the care of a responsible person under s 32(3)(a) (55%) or for assessment and/or treatment under s 32(3)(b) (24%).ii The offences allegedly committed by these defendants were varied but traffic offences were not predominant.iii Magistrates expressed a reluctance to utilise s 32 orders for traffic offences.iv

Non-complianceThe amendments to s 32 introduced in 2004 — which empower a magistrate under s 32(3A) to call up a defendant within six months for a failure to comply with a condition of a s 32(3) order — were utilised extremely rarely in the period 2004–2006. In fact, only 38 breaches were recorded across the Local Court for the period 2004–2006.v Further research is required to ascertain why there are so few call ups and reported breaches of s 32 conditional orders. It is important that confidence in the integrity of s 32 orders is maintained. If it is shown that breaches are not being brought to the attention of magistrates, the s 32 disposition may become discredited and courts may become reluctant to utilise the statutory scheme.vi Further research can ascertain whether there is a general reluctance on the part of treatment providers

i As Table 1 on p 4 reveals, 2711 defendants were discharged under s 32(3) during 2004–2006 . The Local Court of New South Wales Annual Reviews for the years 2004, 2005 and 2006 reveal that, in the same period, there were 678,591 criminal matters finalised in the Local Court . While “criminal matters finalised” and “number of people diverted” are not exact equivalents — as one person may be the subject of numerous criminal matters — the comparison suggests that the number of s 32(3) orders made is relatively small . Given the nature of the order it is not uncommon for a person to have received more than one s 32 order: see Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [14] .

ii Table 1 on p 4 .

iii Table 2 on p 6 reveals that only 7% of offences attracting s 32(3) final orders were for the Australian Standard Offence Classification of Road Traffic and Motor Vehicle Regulatory Offences . See also the discussion at p 5 .

iv We surveyed magistrates to ascertain their views on a range of issues concerning s 32 . The nature of the survey is outlined on p 1 and the results discussed throughout the monograph, as relevant, including pp 23–24 . The questionnaire is reproduced as Appendix 2 on p 35 .

v See Table 4 on p 20 . The term “Local Court” is used throughout, rather than “Local Courts”, following the passing of the Local Court Act 2007 .

vi See the analogous comments by the Court of Criminal Appeal about breaches of bonds in R v Morris (unrep, 14/7/95, NSWCCA) in particular at p 5:

“… if leniency extended in such fashion is abused, there is a very real risk that the whole regimen of non-custodial sentencing options will be discredited both in the eyes of those

VI


and/or responsible persons to bring breaches to the attention of the relevant agencies referred to in s 32A(1). It could also identify any problems faced by the agencies at the breach stage. The enactment of the breach provisions does not appear to have remedied the concerns expressed by magistrates about the non-accountability of s 32 orders.vii

The surveyed magistrates confirmed that the objectives of making s 32 orders enforceable (the 2004 amendments) and encouraging the reporting of breaches (the 2005 amendments) have not been realised. They reported that call-up proceedings for non-compliance are virtually non-existent and that they receive very little information after the s 32(3) order is made.viii Moreover, 70% of the surveyed magistrates expressed the view that six months is too short a period to enforce a conditional order made under s 32(3).ix

The nature of the decision to divert under s 32(1)It is firmly established in the case law that the decision to divert a defendant under s 32(1) is discretionary. The decision can only be set aside if legal error of the type referred to in the High Court decision of House v The Kingx is established.xi The case

members of the community who might otherwise have continued to support them and in the eyes of magistrates and judges; and there is a substantial risk that courts, of their own motion but also reflecting in a general way community opinion, may become increasingly reluctant to extend to offenders those lesser sentencing options which the legislature has provided . It is therefore extremely important that breaches of non-custodial sentencing orders be brought promptly to the notice of the sentencing court and there be dealt with swiftly and, generally speaking, in a manner which will demonstrate how seriously such breaches are regarded and must be regarded in the community interest …”

vii See M Spiers, “Summary Disposal of Criminal Offences under s 32 Mental Health (Criminal Procedure) Act 1990” (2004) 16(2) Judicial Officers’ Bulletin 9, who notes that:

“This reform was recommended by the Interdepartmental Committee on the Mental Health (Criminal Procedure) Act 1990 and Cognate Legislation, a committee comprised of senior government agency representatives, barristers and psychiatrists . It was advocated mainly by magistrates and practitioners who could see that many defendants did not comply with conditions of orders where there were no ramifications for non-compliance . This would lead to their offending behaviour escalating, something which was not detected until the person was brought before the court again on fresh, and often more serious, charges . Ultimately, courts were forced to impose severe criminal penalties, including custodial sentences . As a result, the opportunity for positive, effective, intervention and diversion at the earliest stage was being lost . Many magistrates had become reluctant to make orders under s 32 . Consequently, the rehabilitative opportunities that the section presented were not being used .”

viii Discussed under the heading “The survey and breaches” on p 20 .

ix Discussed under the heading “Is the six-month enforceability period long enough?” on p 21 .

x (1936) 55 CLR 499 at 505 .

xi Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [4] and [76]; Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [38] .

VII

Summary

law also reveals that relevant considerations which can inform the exercise of the discretion include:

the seriousness and circumstances of the alleged offence(s)xii

the defendant’s criminal historyxiii

the existence and content of a treatment planxiv

the limited period of six months that conditional orders are enforceable by the courtxv and

the sentencing options that are available in the event the defendant is dealt with according to law.xvi

Ambiguity about the duration of ss 32(2) and 32(3) ordersSection 32 suffers from textual ambiguity on the question of what is the maximum permissible length of a conditional order that can be made under ss 32(3) and 32(2). This ambiguity has arisen since the introduction (in 2004) of the breach provisions which provide for a call-up procedure up to six months from the imposition of a conditional s 32(3) order. The Commonwealth equivalent of s 32, found in s 20BQ of the Crimes Act 1914 (Cth), sets a three-year limit for the term of the order. Sections 32(3) and 32(2), on the other hand, are silent on the issue. It was assumed at first instance and on appeal in Mantell v Molyneuxxvii that a conditional order under s 32(3) could not be made beyond the six-month period that the order could be enforced. Section 32(3) was read down to ensure there was symmetry between the enforcement provisions and the substantive order. Given that the enforcement provisions were inserted after the enactment of s 32 and the Parliament chose not to expressly limit the duration of s 32(3) orders at that time, we doubt whether the rules of statutory interpretation would permit such a restrictive interpretation. The implication (of a six-month limit) cannot be regarded as necessary for the operation of the section.xviii Magistrates have since been encouraged by the Supreme Court in Mantell’s case (at [45]) to utilise the broadly expressed interlocutory provisions in s 32(2) with the effect of extending “… by a considerable margin the six-month limit”. At present no data is collected about the use and frequency of these s 32(2) interlocutory orders.

If s 32(2) is utilised to impose lengthy interlocutory orders, then data about them should also be officially collected in the same way as it is for s 32(3) orders. In any event, the issues of what exactly is the maximum permissible length of a s 32(3) order and what is the relationship between interlocutory orders and final orders may require legislative clarification.

xii Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154, per McColl JA at [77]; Confos v Director of Public Prosecutions [2004] NSWSC 1159 at [17] .

xiii Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [14]–[15], and [41] .

xiv Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [10] .

xv Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [47] .

xvi ibid at [40] .

xvii ibid at [45] .

xviii Discussed at pp 14–16 .

VIII


Unfitness and s 32The relationship between the decision under s 32 to divert a defendant and the issue of whether the defendant is unfit to be tried continues to arise. The prevailing view is that, as s 32 is a threshold diversionary mechanism, it should be considered before the issue of unfitness arises.xix Therefore, even a person whose mental disorder patently makes them unfit to stand trial can be diverted under s 32.xx This raises difficult questions about procedural fairness in s 32 applications. If the magistrate decides not to deal with the defendant by way of a s 32 order and a question of unfitness remains, the magistrate is required to resolve the issue by applying the common law on the subject as enunciated by the High Court.xxi The common law applies because of the exclusion of the Local Court from the unfitness provisions found in Pt 2 of the Mental Health (Criminal Procedure) Act 1990.xxii

Treatment plansIt was held by the court in Director Public Prosecutions v Albonxxiii and Perry v Forbesxxiv

that clear and effective treatment plans must be available to magistrates before the discretion to make a s 32 order can be exercised. Overall, magistrates responding to our survey indicated that treatment plans were not always initially available or prepared to adequate standards, and that adjournments were required to rectify this shortcoming.xxv Table 3 on p 18 provides details of suggested information that treatment plans and related reports should contain.

Coverage of s 32Concerns were raised by some magistrates about the difficulties surrounding attempts to clearly define and diagnose mental disorders. The authors of the Diagnostic and Statistical Manual of Mental Disordersxxvi candidly acknowledge that no system of categorisation can impose perfect order on the irreducible complexity of mental health. Section 32(1) caters for this complexity by using three broad categories of mental disorder and simply requiring an appearance (“it appears to the magistrate”) of mental disorder.

xix Perry v Forbes (unrep, 21/5/93, NSWSC) at p 12; Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [16] and [49], citing Mackie v Hunt (1989) 19 NSWLR 130 . See discussion at p 22 ff .

xx Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [49], citing Mackie v Hunt (1989) 19 NSWLR 130 .

xxi ibid Mantell at [28]–[32] . See Ngatayi v The Queen (1980) 147 CLR 1 at 7–8 .

xxii Section 4 Mental Health (Criminal Procedure) Act 1990 and see Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [18] .

xxiii [2000] NSWSC 896 .

xxiv (unrep, 21/5/93, NSWSC) .

xxv Discussed at p 17 .

xxvi American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV), Washington DC, 2000, pp xxx–xxxi, discussed at n 117–118 and accompanying text .

IX

Summary

The aim of s 32 is furthered, not hindered, by dealing with such a complex field in broad terms.xxvii

Nevertheless, the categories of mental disorder identified as falling within the coverage of s 32 contain anomalies and may warrant re-consideration. For example, the reference to hospital treatment made in s 32(1)(c) — “Suffering from a mental condition for which treatment is available in hospital” — was described by the surveyed magistrates as archaic.xxviii A leading mental health professional has said it has connotations of the undesirable past practice of institutionalisation.xxix The phrase has since been replaced in 2007 with “for which treatment is available in a mental health facility”. The focus has not shifted to the availability of treatment per se, which is what ultimately matters, or to treatment in the community, as the contingency of institutionalisation remains.xxx

Additionally, the Intellectual Disability Rights Service is concerned that s 32 is not being used frequently enough for defendants with intellectual disabilities.xxxi They raise as an issue for consideration whether s 32(1)(a)(i) should be expanded to include “intellectual disability”.

The resources debateThe surveyed magistrates expressed a general concern about the adequacy of resources and whether the policy objectives behind s 32 are being undermined by a lack of community mental health care services. These concerns corroborate those expressed by the NSW Legislative Council Select Committee on Mental Health.xxxii

xxvii Discussed under the heading “The coverage of conditions under s 32”, p 24 .

xxviii Discussed at p 28 .

xxix A Robilliard, Psychologist . The issue is discussed at p 28 .

xxx ibid .

xxxi Discussed at p 27 and n 123 .

xxxii Mental Health Services in New South Wales: Final Report, 2002, NSW Parliament (Legislative Council), Sydney . Discussed at p 3 and n 16 and p 31 and n 144 .

1

IntroductionBetween 2004–2006, 2711 persons dealt with in the Local Court were diverted from the criminal justice system by way of an order under s 32 of the Mental Health (Criminal Procedure) Act 1990.1

Section 32 permits a magistrate in summary proceedings to divert mentally disordered defendants from the criminal justice system by dismissing their charges and discharging them:

into the care of a responsible person (unconditionally or subject to conditions)

on the condition that the defendant obtain mental health assessment and/or treatment, or

unconditionally.

It operates when it appears to a magistrate that a defendant is (or was at the time of the alleged offence) developmentally disabled, mentally ill or has a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person within the meaning of the Mental Health Act 2007.

This study analyses the history and text of s 32 in light of recent case law. We report the results of a survey of magistrates and examine court data collected by the NSW Bureau of Crime Statistics and Research. The question of whether the statutory objectives of s 32 are being achieved is the subject of a current reference of the New South Wales Law Reform Commission.2 The issues raised in this study should assist in that inquiry. Gleeson CJ remarked that sentencing an offender who suffers from a mental disorder commonly calls for a “sensitive discretionary decision”.3 The remark is apposite to a decision by a magistrate to divert a person under s 32.

SurveyWe surveyed magistrates using a questionnaire sent via email.4 The primary purpose of the survey was to elicit opinions concerning the operation of s 32. The survey was deliberately designed using several open-ended questions to encourage free-form responses. Just over one-quarter (n=33 or 26%) of all NSW magistrates who hear criminal matters responded to the survey.

1 As detailed in Table 1 on p 4 . The text of ss 32 and 32A is attached as Appendix 1 on p 33 .

2 Correspondence of P Hennessy, Executive Director, New South Wales Law Reform Commission, 17 October 2007 .

3 R v Engert (1995) 84 A Crim R 67 at 67 .

4 The survey is reproduced as Appendix 2 on p 35 .

2


The recorded incidence of people suffering mental conditions in NSWMental disorder affects 20% of people over the course of their life.5

In March 2007 a Bureau of Crime Statistics and Research study surveyed 189 people who appeared in two NSW Local Courts. The study reported that 55% suffered from one or more psychiatric disorders.6 Seventy-five percent of those people met one or more criteria for disordered or dependent substance abuse, that is:

“… people who report psychiatric disorders almost universally present with a co-morbid substance use disorder.”7

The study came with several riders about translating the findings to all defendants.8 Nevertheless, the authors concluded:

“… it would appear that focusing on the mental health needs of NSW court defendants would be an important part of any offender-based criminal justice intervention.”9

The findings of this 2007 study accord with others which have recorded the prevalence of mental illness in NSW generally and amongst people who come into contact with the criminal justice system. The various studies of prisoner populations reveal that many people with a mental disorder are found in the prison system and prisons have an adverse effect on mental health.10 The following picture emerges:

Prisoners had similar levels of physical functioning to the general community but significantly lower levels of mental health and higher levels of psychological distress.11

5 T Carney, D Tait, D Chappell, F Beaupert, “Mental Health Tribunals: ‘TJ’ Implications of Weighing Fairness, Freedom, Protection and Treatment” (2007) 17 Journal of Judicial Administration 46 at 46 .

6 C Jones and S Crawford, “The psychosocial needs of NSW court defendants” (2007) 108 Crime and Justice Bulletin 1 . Available at: <http://www .lawlink .nsw .gov .au/lawlink/bocsar/ll_bocsar .nsf/vwFiles/CJB108 .pdf/$file/CJB108 .pdf>, accessed 25/1/2008 .

7 ibid p 6 .

8 ibid . For instance, it did not “employ a validated measurement scale” and “there may have been a tendency among some participants to over-diagnose particular health problems” particularly mental health problems . Further, because the sample generated was self-selecting the study could not be used to measure the overall prevalence of these various problems among court defendants .

9 ibid p 7 .

10 Disturbingly, the discredited view that mentally disordered accused should be treated in prisons has recently found support in the mental health field . Professor I Hickie, Executive Director of the Brain and Mind Institute, noted on the ABC’s 7.30 Report of 17/9/2007 that: “[I]t has been common practice in mental health to feel that going to prison is a reasonable

way … of getting care . In this century, that is unacceptable” . (Transcript available at <www .abc .net .au/7 .30/content/2007/s2034666 .htm> .)

Additionally, Professor D Greenberg and B Nielson note that a “myth” exists within mental health services that prison mental health services are better equipped to manage mentally ill defendants charged with minor offences: “Moving Towards a Statewide Approach to Court Diversion Services in NSW” (2003) 14(11–12) NSW Public Health Bulletin 227 at 228 .

11 T Butler et al, “Mental Disorders in Australian Prisoners: A Comparison with a Community Sample” (2006) 40 Australian and New Zealand Journal of Psychiatry 272 at 273 .

3

Diverting mentally disordered defendants in the NSW Local Court

In 2003, over a 12-month period, the prevalence of any psychiatric disorder in the inmate population (74%) was substantially higher than the prevalence rate for the general community (22%).12

In 2006 the overall prevalence of psychiatric disorder was 80% for prisoners compared to 31% for the general population.13

People suffering from an intellectual disability comprise 12–13% of the New South Wales prison population — four times the population-wide rate of intellectual disability.14

Widespread use of drugs and alcohol will tend to increase the prevalence of mental disorder in the community and, in turn, the likelihood of people with mental disorder appearing before the courts.15

According to the report of the Legislative Council’s Select Committee on Mental Health, implementing the Richmond Report only partially — that is, decentralising mental health care without providing for sufficient community-based mental health care services — has led to inadequate care for many people with mental disorders and an increase in the number of offenders with mental disorders appearing before the courts.16

12 T Butler and S Allnut, Mental Illness Among New South Wales Prisoners, NSW Corrections Health Service, 2003, Sydney . Butler and Allnut used a broad definition covering many of the disorders identified in the American Psychiatric Association’s, Diagnostic and Statistical Manual of Mental Disorders, Fourth Ed, Text Revision (DSM-IV), 2000, American Psychiatric Association, Washington DC, including: psychosis, anxiety disorder, affective disorder, substance use disorder, personality disorder, and neurasthenia .

13 Butler et al, op cit n 11 at 273 .

14 New South Wales Law Reform Commission, Report 80: People with an Intellectual Disability and the Criminal Justice System, 1996, New South Wales Law Reform Commission, Sydney, 25–32 .

15 Substance abuse can itself become a mental disorder (substance abuse disorder) or lead to other mental disorders (for example, drug-induced psychosis or Korsakoff’s syndrome) . For information on the high rates of co-morbidity between substance abuse disorder and other mental disorders, based on the first National Survey of Mental Health and Wellbeing, see: G Andrews, W Hall, M Teesson and S Henderson, The Mental Health of Australians, 1999, Commonwealth Department of Health and Aged Care, Canberra, p 21 and s 7 .

16 Legislative Council Select Committee on Mental Health, Mental Health Services in New South Wales: Final Report, 2002, NSW Parliament (Legislative Council), Sydney, pp xv and 139 . Cf ss 105(b) and (g) of the recently commenced Mental Health Act 2007, which states that the objectives of the NSW public health system include, respectively: “promot[ing] the establishment of community mental health services” and “assisting patients to live in the community …” . The trend noted by the Select Committee is widespread . For instance, it was noted by the Administrator of the Tasmanian Magistrates Courts as being the catalyst for Tasmania’s adoption of a mental health diversion and treatment scheme: J Connolly, “Mental Health Diversion List: Magistrates Court (Hobart)” available at: <www .magistratescourt .tas .gov .au/divisions/criminal__and__general/mental_health_diversion/Mental_Health_Diversion_List_Article>, accessed 24/8/07 .

4


Number and nature of s 32(3) orders imposedIn the Local Court in 2004–2006 there were, respectively, 202,681, 204,735 and 270,995 criminal matters finalised.17 Table 1 details the number of people from these matters who were diverted from the criminal justice system by way of s 32(3). While “criminal matters finalised” and “number of people diverted” are not exact equivalents — as one person may be the subject of numerous criminal matters — the comparison suggests that the number of s 32(3) orders made is, in relative terms, small. This likely reflects the concerns expressed by magistrates about the operation of s 32, as well as s 32 applying only to a targeted sub-group of people appearing before the court.

Table 1: Persons discharged by way of a s 32(3)* order, 2004–2006

Outcome

Year s 32(3)(a)††

discharged into care of a responsible person unconditionally

s 32(3)(a)††

discharged into care of a responsible person conditionally

s 32(3)(b) discharged for assessment/ treatment

s 32(3)(c) discharged unconditionally

Total

2004† 4 385 153 176 718

2005 28 548 281 163 1020

2006 21 570 225 157 973

Total 53 1503 659 496 2711

* There is no record of interlocutory orders made under s 32(2) . † Regarding 2004, only figures for April–December are available .

†† Section 32(3)(a) is expressed in terms of an alternative (“unconditionally or subject to conditions”) and this is reflected in the use of two columns for s 32(3)(a) discharges .

Table 1 reveals that:

20% of persons who were the subject of a s 32(3) order were discharged unconditionally under ss 32(3)(a) or 32(3)(c);

Conditional discharges involving an assessment and/or treatment were ordered for 24% of persons discharged under s 32(3); and

55% of persons discharged by way of s 32(3) were discharged conditionally into the care of a responsible person.

17 Office of the Chief Magistrate, Local Court of New South Wales Annual Review 2004, 2004, Sydney, p 10; Office of the Chief Magistrate, Local Court of New South Wales Annual Review 2005, 2005, Sydney, p 9; Office of the Chief Magistrate, Local Court of New South Wales Annual Review 2006, 2006, Sydney, p 17 .

5


There is no record of interlocutory orders made under s 32(2), nor is there any record of the length of the orders made under s 32(3).18 As our discussion of Mantell v Molyneux19 suggests, data on both these measures would illuminate areas of current uncertainty.

Nature of offences committedSection 32 applies to summary offences and indictable offences triable summarily. Table 2 shows the types of offences persons subject to s 32(3) orders were charged with, using the generic offence classification scheme known as ASOC (Australian Standard Offence Classification).

The striking feature of Table 2 is the wide range of offences attracting s 32 orders. The five largest categories, comprising 75% of all counts attracting s 32 orders, were:

acts intending to cause injury, such as assault (23%)

offences against justice procedures etc (16%)

theft and related offences (14%)

public order offences (12%), and

property damage and environmental pollution (10%).

Magistrates were questioned about the types of offences for which they have declined to issue s 32 orders. The majority indicated that they were reluctant to issue s 32 orders when the accused was charged with traffic offences due to the need to disqualify defendants’ licences in cases where their driving posed a risk to the community. A conviction must be recorded before the disqualification provisions are enlivened. Police v Deng20 is a relatively rare example. After granting a s 32 application to a learner driver suffering from post-traumatic stress disorder, the magistrate made a “recommendation” to the Roads and Traffic Authority that any existing learner’s permit be cancelled on medical grounds and that the applicant not be reissued with any learner’s permit for at least three years.

18 Correspondence from the NSW Bureau of Crime Statistics and Research dated 16/10/2007 and 21/11/2007 . Section 32(2) is discussed below under the heading “Interlocutory orders under s 32(2) and the duration of s 32(3) orders” pp 14–16 .

19 (2006) 68 NSWLR 46; [2006] NSWSC 955; discussed under the heading “Interlocutory orders under s 32(2) and the duration of s 32(3) orders”, pp 14–16 .

20 [2008] NSWLC 2 . Available at <www .lawlink .nsw .gov .au/lawlink/caselaw/ll_caselaw .nsf/pages/cl_lc>, accessed 6/3/08 .

6


Tabl

e 2:

Typ

e of

offe

nces

(ASO

C)* c

ateg

ory

deal

t with

by

s 32

ord

ers,

by

num

ber o

f cou

nts,

200

4–20

06

Out

com

e

Cat

ego

rys

32(3

)(a)

dis

char

ged

into

car

e of

a

resp

onsi

ble

per

son

unco

nditi

ona

lly

s 32

(3)(

a)d

isch

arg

ed in

to c

are

of

a re

spo

nsib

le p

erso

n co

nditi

ona

lly

s 32

(3)(

b)

dis

char

ged

fo

r as

sess

men

t /

trea

tmen

t

s 32

(3)(

c)

dis

char

ged

un

cond

itio

nally

Tota

l20

04–2

006

Year

04

†05

06T

04†

0506

T04

†05

06T

04†

0506

T04

†05

06T

Act

s in

tend

ed

to c

ause

inju

ry4

88

2018

130

932

881

880

138

139

357

9765

6522

736

252

054

014

22

Sex

ual a

ssau

lt &

rel

ated

of

fenc

es

00

00

125

1027

14

611

40

15

179

1743

Dan

gero

us &

ne

glig

ent a

cts

enda

nger

ing

pers

ons

01

01

916

2651

713

1030

125

522

2835

4110

4

Rob

bery

, ex

tort

ion

& r

elat

ed

offe

nces

00

00

31

26

00

22

10

12

41

510

Unl

awfu

l ent

ry

with

inte

nt/

burg

lary

, bre

ak

& e

nter

00

00

1939

3189

1018

937

86

216

3763

4214

2

Thef

t & r

elat

ed

offe

nces

211

821

144

155

159

458

6598

5822

161

4646

153

272

310

271

853

7


* A

ustr

alia

n S

tand

ard

Offe

nce

Cla

ssifi

catio

n

† R

egar

ding

200

4, o

nly

figur

es fo

r A

pril–

Dec

embe

r ar

e av

aila

ble .

Dec

eptio

n &

rel

ated

of

fenc

es

04

48

2632

3290

1620

2662

716

1336

4972

7519

6

Illic

it dr

ug

offe

nces

01

01

3339

3110

39

1114

3412

159

3654

6654

174

Wea

pons

&

expl

osiv

es

offe

nsiv

es

03

47

2418

1456

56

617

11

46

3028

2886

Pro

pert

y da

mag

e &

en

viro

nmen

tal

pollu

tion

04

610

9512

714

036

232

5638

126

3333

3510

116

022

021

959

9

Pub

lic o

rder

of

fenc

es3

73

1310

115

516

442

026

6655

147

5352

6016

518

328

028

274

5

Roa

d tr

affic

&

mot

or v

ehic

le

regu

lato

ry

offe

nces

09

514

5374

103

230

2647

3410

731

3139

101

110

161

181

452

Offe

nces

ag

ains

t jus

tice

proc

edur

es &

go

vern

men

t se

curit

y &

op

erat

ions

26

513

154

181

230

565

5512

182

258

6248

5516

527

335

637

210

01

Mis

cella

neou

s of

fenc

es0

41

537

7180

188

1836

1266

1814

1951

7312

511

231

0

Tota

l11

5844

113

891

1222

1350

3463

350

634

491

1475

400

332

354

1086

1652

2246

2239

6137

8


The statutory scheme in a national and international contextAcross Australia and overseas, courts of summary jurisdiction have attempted to address offenders’ underlying mental health issues in a variety of innovative ways. For example, there are comparable initiatives at the Commonwealth level21 and in Victoria,22 Queensland,23 South Australia,24 Tasmania,25 England26 and parts of the United States.27 Through a process of “pragmatic incrementalism”28 courts of summary jurisdiction have been early adopters of initiatives designed to address

21 Where a mentally disordered accused is charged with a Commonwealth offence, s 20BQ of the Crimes Act 1914 provides State courts of summary jurisdiction with powers similar to s 32 . Indeed, in one respect, the power exceeds that of s 32 because ss 20BQ(1)(c)(i) and 20BQ(1)(c)(ii) enables the court to make care and treatment orders for up to three years .

22 In Victoria the Magistrates’ Court’s Mental Health Court Liaison Service “divert[s] offenders with a mental illness from the criminal justice system into appropriate mental health treatment services”, available at p 18: <www .magistratescourt .vic .gov .au/CA256902000FE154/Lookup/Parallel_Services_Docs/$file/Guide_to_Court_Support_Services .pdf>, accessed 16/11/2007; while the Enforcement Review Program allows applications for revocations of fines in “special circumstances”, including mental disorder: J Popovic, “Meaningless vs Meaningful Sentences: Sentencing the Unsentenceable”, paper presented at the Sentencing: Principles, Perspectives and Possibilities conference, 10–12 February 2006, Canberra, p 12: <www .law .anu .edu .au/nissl/Popovic .pdf>, accessed 16/11/2007 .

23 In Queensland, the Brisbane Magistrates’ Court has established a special circumstances list aimed at providing court-authorised treatment for mentally disordered people charged with public order offences: T Walsh, “The Queensland Special Circumstances Court” (2007) 16 Journal of Judicial Administration 223 at 224 .

24 In South Australia, the Magistrates’ Court Diversion Program is designed to divert and treat individuals with mental disorder in order to address the link between their mental disorder and their offending, available at: <www .courts .sa .gov .au/courts/magistrates/court_interv_officers .html>, accessed 12/11/2007; G Skrzypiec, J Wundersitz, and H McRostie, Magistrates Court Diversion Program: An Analysis of Post-Program Offending, 2004, Office of Crime Statistics and Research, Adelaide; s 19C Criminal Law (Sentencing) Act 1988 (SA) .

25 In Tasmania, the Mental Health Diversion List Program provides an opportunity for eligible accused to voluntarily address their mental health and/or disability needs . The court reviews the treatment plan each month: Magistrates Court of Tasmania, Mental Health Diversion List Procedural Manual, 2007, Hobart, pp 3 and 10, available at: <www .magistratescourt .tas .gov .au/__data/assets/pdf_file/0008/78740/Mental_Health_Diversion_List_Procedural_Manual-April_2007-ver1 .pdf>, accessed 4/11/07 .

26 The Heterforshire Panel Assessment Scheme and the Bow and Marlborough Streets Magistrates’ Courts’ Psychiatric Assessment Schemes identify mental disorder at the earliest possible opportunities and enable magistrates to make informed therapeutic disposals: J Laing, Care or Custody? Mentally Disordered Offenders in the Criminal Justice System, 1999, Oxford University Press, Oxford, pp 163–166 . A review by the Home Office Research and Planning Unit in 1993 found that the scheme successfully diverted mentally disordered offenders from the criminal justice system .

27 There are 25–30 specialist Mental Health Courts and numerous court diversion programs in the United States, with no one uniform model and numerous variations on the theme . The Law Enforcement and Mental Health Project Act 2000 makes federal funds available to local jurisdictions seeking to establish or expand mental health courts and diversion programs . With “approximately a quarter million individuals with severe mental illness … incarcerated at any moment”, that appears to us to be a timely initiative: R Bernstein and T Seltzer, “Criminalization of People with Mental Illnesses: The Role of Mental Health Courts in System Reform” (2003) 7 UDCL Rev 143 ff .

28 M King and K Auty, “Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction” (2005) 30(2) Alt LJ 69 .

9


offenders’ underlying problems.29 Generally speaking, magistrates have been willing to embrace innovation,30 probably in large part due to their judicial view of social issues being, in relative terms, both the most immediate and broadest. After all, for 2004–2005, magistrates’ courts across Australia accounted for 96% of all lodgments in the criminal courts.31 The Local Court, which has sometimes been described as the “people’s court”,32 is thus ideally placed for tackling grassroots problems at a grassroots level.

The statutory history of s 32Section 32 was previously found in s 428M of the Crimes Act 1900 (NSW). Section 428M was inserted in 1983 and later repealed and re-enacted in the Mental Health (Criminal Procedure) Act, which commenced on 3 September 1990.33 The Mental Health Act 199034 was passed at the same time. In the Second Reading Speech,35 the Minister for Health referred to the new mental health legislation in terms of progressing from a “tragic state”36 of mental health services towards providing effective treatment to mentally ill persons and protecting the public from those mentally ill persons who pose a danger.

In relation to s 32, it was noted by the Minister for Justice in the Second Reading Speech for the Mental Health (Criminal Procedure) Amendment Act 2005 that:

“[T]he Magistrate has the power to divert the defendant away from being dealt with at law and being subject to a punishment. The purpose of s 32

29 For an overview of Victorian initiatives, see J Popovic, op cit n 22; for an overview of Western Australian initiatives, see M King, “Problem-Solving Court Programs in Western Australia”, paper presented at the Sentencing: Principles, Perspectives and Possibilities conference, 10–12 February 2006, Canberra, available at: <www .law .anu .edu .au/nissl/King .pdf>, accessed 16/10/2007 .

30 S Roach Anleu and K Mack, “Australian Magistrates, Therapeutic Jurisprudence and Social Change” in Transforming Legal Processes in Court and Beyond: A Collection of Refereed Papers from the 3rd International Conference on Therapeutic Jurisprudence, 7–9 June 2006, Perth, 2007, Australasian Institute of Judicial Administration, Melbourne, p 173 .

31 Australian Crime: Facts and Figures, 2006, Australian Institute of Criminology, Canberra, p 73, available at: <http://www .aic .gov .au/publications/facts/2006/facts_and_figures_2006 .pdf>, accessed 25/1/2008 . Lodgments are defined as the initiation of the matter with the courts .

32 The Honourable M King, “Afterword” (2006) Murdoch University Electronic Journal of Law, Special Series: The Therapeutic Role of Magistrates’ Courts 1 at 160, available at: <https://elaw .murdoch .edu .au/issues/special/TJELAW2 .pdf>, accessed 25/1/2008 .

33 Section 2 and GG No 82 of 29/6/1990, p 5398 .

34 Date of commencement, 3 September 1990, s 2 and GG No 82 of 29/6/1990, p 5397 .

35 The Honourable P Collins, Minister for Health and Minister for Arts, Second Reading Speech, “Mental Health Bill, Mental Health (Criminal Procedure) Bill and Miscellaneous Acts (Mental Health) Repeal and Amendment Bill”, New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 22/3/1990, p 884 .

36 ibid, p 885 .

10


of the Act is to allow defendants with a mental condition, a mental illness or a developmental disability to be dealt with in an appropriate treatment and rehabilitative context enforced by the court”.37

Section 32 and its predecessor, s 428M, were drafted against the background of the Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (the Richmond Report).38 The Richmond Report recommended that, where medically appropriate, people requiring mental health services should receive them in a decentralised environment.39 It emphasised the importance of protecting the rights and maximising the personal development of mentally disordered persons. This approach was reflected in ss 4(2)(a) and (b) of the Mental Health Act 199040 — which the courts recognised as being a proper and relevant aid in interpreting provisions in the Act41 — and in s 68 of the recently commenced Mental Health Act 2007.42 These considerations are of such fundamental importance that they are recognised as human rights at international law.43

37 The Honourable T Kelly, Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands and Minister for Rural Affairs, “Second Reading Speech: Mental Health (Criminal Procedure) Amendment Bill”, Hansard, Legislative Council, 29/11/2005, p 20085 at p 20087 .

38 Richmond Report: Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (Vols 1–6), 1983, NSW Department of Health, Sydney .

39 ibid, (Vol 3), 23 .

40 Section 4(2) provides: “It is the intention of Parliament that … every function, discretion and jurisdiction conferred or

imposed by this Act is, as far as practicable, to be performed or exercised so that:(a) persons who are mentally ill or who are mentally disordered receive the best possible care

and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances .”

41 In Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [56] McColl JA cited Wood CJ at CL in R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 at [108] (Spigelman CJ and James J agreeing), where his Honour observed that it was “proper to have regard to both the Mental Health Act 1990 and the [Mental Health (Criminal Procedure)] Act for the purpose of construing expressions used in either of them because they formed part of a scheme of legislation, were introduced together and assented to on the same day .”

42 Section 68 states that people with a mental illness or mental disorder: should receive the best possible care and treatment in the least restrictive environment possible;

should be provided with timely and high quality treatment and care;

should be treated so that, wherever possible, they live, work and participate in the community; and

should have any restrictions on their liberty or interference with their rights, dignity and self-respect kept to a minimum .

43 See: Articles 1 and 10 of the Universal Declaration of Human Rights, available at: <http://www .un .org/Overview/rights .html>, accessed 25/1/2008; Article 12 of the International Covenant on Economic, Social and Cultural Rights, available at: <http://www .unhchr .ch/html/menu3/b/a_cescr .htm>, accessed 25/1/2008; and Principle 9 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, available at: <http://www .unhchr .ch/html/menu3/b/68 .htm>, accessed 25/1/2008 .

11


The current statutory schemeSection 3244 applies to criminal proceedings (including bail proceedings) before a magistrate for summary offences or indictable offences triable summarily.45 Section 32 orders are diversionary. There is no finding as to guilt or innocence — and hence no conviction. A decision under s 32 to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.46 The section was extended in 2005 to apply to the time of the offence or to the time of the proceedings, or both.47 The Minister in the Second Reading Speech observed that the section can apply to defendants “even though they might have recovered by the time of appearing before the court.”48 The reasoning offered by the Minister was that, for s 32 not to apply at the time of the alleged offence was inconsistent with Pt 4 of the Mental Health (Criminal Procedure) Act, which concerns the defence of mental illness.

Exercising the s 32 discretion The discretion to make an order under s 32 arises if two preconditions are met; or as Spigelman CJ described it in Director of Public Prosecutions v El Mawas,49 there is a “two-fold test”.50 First, at the commencement or during the course of the proceedings, it must appear to a magistrate that a defendant is or was at the time of the alleged commission of the offence:

developmentally disabled51

suffering from a mental illness,52 or

suffering from a mental condition for which treatment is available in a mental health care facility,53

but is not mentally ill within the terms of the Mental Health Act 2007 (that is, not

44 Section 32 has been amended by the Crimes Legislation Amendment Act 2002 No 130 Sch 9[1]–[3]; Crimes Legislation Further Amendment Act 2003 No 85 Sch 7; Mental Health (Criminal Procedure) Amendment Act 2005 No 109 Sch 1[17]–[18]; and the Mental Health Act 2007 Sch 7 .7 [14]–[16] . The current text of ss 32 and 32A appears at Appendix 1 .

45 Excluding committal proceedings: s 31 Mental Health (Criminal Procedure) Act 1990 .

46 Section 32(4) .

47 Originally, s 32 required a magistrate to consider the state of mind of the accused only at the time they appeared before the court . This was inconsistent with the way Pt 4 of the Act applied to the defence of mental illness . It was specifically amended to extend its operation to cover circumstances where a person was mentally disordered when they committed the offence but, due to treatment or the nature of their affliction, was not presenting with any mental disorder before the court: L Babb, “New Mental Health Criminal Procedures in 2006”, NSW Young Lawyers, Continuing Legal Education Seminar, “Recent Developments in Mental Health Criminal Procedures”, 10/5/2006, Sydney .

48 The Honourable T Kelly, op cit n 37; see also, L Babb, ibid, p 4 .

49 (2006) 66 NSWLR 93; [2006] NSWCA 154 .

50 ibid at [3] .

51 Section 32(1)(a)(i) .

52 Section 32(1)(a)(ii) .

53 Section 32(1)(a)(iii) .

12


suffering from a serious impairment of mental functioning and not posing a risk of serious harm to themself or others).54

Second, s 32(1)(b) provides that on an outline of the facts alleged in the proceedings or such other evidence as the magistrate may consider relevant, it must appear to the magistrate that it would be more appropriate to deal with the defendant in accordance with s 32 than otherwise in accordance with law.55

Spigelman CJ said in El Mawas56 that s 32(1)(b) confers “a very wide discretion”. McColl JA in a separate judgment said:57

“… [the] decision clearly calls for the exercise of subjectivity or value judgments in which ‘… “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”’: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [19]. In my view, as Howie J concluded in Confos, it involves a discretionary decision in which the magistrate is permitted latitude as to the decision which might be made, a latitude confined only by the subject matter and object of the Act.”

Given it is a discretionary decision upon which reasonable minds may differ, the correctness of the decision can only be challenged on appeal by showing error in the decision-making process of the kind referred to in House v The King.58

The breadth of the s 32 discretion is also evidenced by the “inquisitorial powers” conferred on magistrates by s 36, which provides that the magistrate “may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself.”59 When applying s 32, a magistrate is required to consider and choose between the public interests of:

ensuring that all offenders encounter the full weight of the criminal law, and

54 In particular, ss 4 and 14 . A serious impairment of mental functioning is characterised by: (a) delusions, (b) hallucinations, (c) serious thought disorder (d) a severe disturbance of mood, and (e) sustained irrational behaviour indicating any or all of symptoms (a)–(d): s 4 . If the defendant falls within the purview of the Mental Health Act, s 33 of the Mental Health (Criminal Procedure) Act 1990 applies . See also n 113–115 and accompanying text .

55 Section 32(1)(b) .

56 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [4] .

57 ibid at [76] .

58 ibid at [67] . In House v The King (1936) 55 CLR 499 at 504–505 Dixon, Evatt and McTiernan JJ describe patent error as follows: “If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so .” Where these errors are not discoverable, a discretionary order can also be set aside if it is “plainly unjust”: House at p 505 .

59 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154, per McColl JA at [74] .

13


treating mentally disordered offenders, so that they no longer pose a threat to the community.60

Spigelman CJ’s two-fold approach to the discretion conferred in s 32 concerned the initial steps (eligibility and appropriateness) referred to in ss 32(1)(a) and (b). The magistrate is then required to turn to ss 32(2) and (3) and consider the terms of the order (outcome).

Overall, core decisions concerning eligibility, appropriateness and outcome are required: 61

Eligibility: A jurisdictional decision, as a finding of fact, whether a defendant is eligible to be dealt with under s 32(1)(a).

Appropriateness: A discretionary decision under s 32(1)(b) as to whether, having regard to the facts and other evidence, (including evidence obtained by the magistrate under s 36), it would be “more appropriate” to deal with the defendant in accordance with s 32, rather than otherwise in accordance with law.

Outcome: Another discretionary decision, this time as to which of the actions set out in ss 32(2) and (3) should be taken.

Matters relevantly taken into account under s 32(1)(b)Several matters have been identified in the case law as being relevant to the exercise of the s 32(1)(b) discretion:

The seriousness of the offence(s)The Court of Appeal in El Mawas held that the discretionary judgment required under s 32 cannot be exercised properly without due regard to the seriousness of the alleged offending conduct.62 The judge of the Supreme Court who had heard the first stage of the appeal had erred in suggesting otherwise.63 The seriousness of the offending conduct includes the alleged facts of the case or conduct for which the defendant is before the court.64

That seriousness of offending is a valid and necessary limiting influence on the exercise of the s 32 discretion may to some extent address the concerns of magistrates, discussed below, about the increasing breadth of the summary jurisdiction, the broad and nuanced nature of mental disorders, and the paucity of breach notifications.

60 ibid at [71] . In this respect, note McColl JA’s comment that “adopting the diversionary route does not mean that a defendant is not exposed to punishment”: ibid at [73], followed in Police v Deng [2008] NSWLC 2 at 10 .

61 ibid at [75]–[80] .

62 ibid at [77] .

63 In El Mawas v Director of Public Prosecutions [2005] NSWSC 243 Greg James J said that, in Confos v Director of Public Prosecutions [2004] NSWSC 1159, Howie J undermined the s 32 discretion by emphasising the need to consider the seriousness of the offence .

64 Confos v Director of Public Prosecutions [2004] NSWSC 1159 at [17] .

14


Six-month enforceability limit of ordersIn Mantell v Molyneux the court held that the magistrate did not err by taking into account the six-month enforceability limit of orders that can be made under s 32(3).65 Nor was there any error in taking into account in the exercise of the s 32 discretion the likely sentencing outcomes in the event of conviction.66 The magistrate was entitled to be concerned about what he termed the “six month bandaid” nature of s 32, especially in regards to the appellant, whose record clearly showed that longer bonds were more effective than shorter s 32 orders.

Existence and content of treatment planSpigelman CJ said67 in El Mawas that the “existence and content of the treatment plan” is a “relevant consideration” for magistrates to take into account when exercising the s 32 discretion. The extent of its relevance is a matter to be determined by the magistrate. Spigelman CJ said that the magistrate was:

“entitled to reject the proposition that the proposed course of treatment should receive significant weight in formulating the judgment for which s 32(1)(b) calls”.68

Interlocutory orders under s 32(2) and the duration of s 32(3) ordersOnce the court has decided to exercise the s 32 discretion in favour of the defendant, it can make interlocutory orders under s 32(2) and final orders under s 32(3). The power to make interlocutory orders is only enlivened “… when the magistrate has made the decision required by s 32(1)(b)”,69 referred to above. Orders under s 32(2) are interlocutory orders made pending determination of the proceedings under s 32(3);70 while orders pursuant to s 32(3) are final orders dismissing the charge and discharging the defendant, with or without conditions.

In Mantell Adams J contrasted the power to make interlocutory orders under s 32(2) with the “undoubted powers”71 available to magistrates to adjourn proceedings, grant bail and make ancillary orders. These general powers can be exercised even before a decision is made to divert under s 32(1). Adams J said:

“… an adjournment under s 32(2)(a) could not be made for the purpose of considering whether it was more appropriate to divert a defendant

65 (2006) 68 NSWLR 46; [2006] NSWSC 955 at [47] . Discussed at n 88 and accompanying text .

66 ibid at [40] .

67 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [10] .

68 ibid .

69 Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [43] .

70 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154, per McColl JA at [80], citing Minister for Corrective Services v Harris (unrep, 10/7/87, NSWSC) per Brownie J .

71 (2006) 68 NSWLR 46; [2006] NSWSC 955 at [43] .

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rather than dealing with him or her in accordance with law … [but] … the general power to adjourn proceedings must permit a magistrate to do so before making any decision under [s 32(2)].” 72 [sic]

His Honour suggested that the purpose of s 32(2) orders is one of “widening in some way the general powers of the magistrate” by permitting an “interim position” to be brought about before the magistrate determines whether or not to make a final order under s 32(3).73

Thus, interlocutory orders made under s 32(2) can effectively extend by a considerable margin the six-month enforceability limit of s 32(3) orders.74 Adams J in Mantell said of s 32(2):

“… the Magistrate may have been able (if he had made a determination that diversion was appropriate under s 32(1)) to deal with the appellant under s 32(2) and then, when satisfied that the discretion under s 32(3) should be exercised, doing so at that point. This could have extended by a considerable margin the six months’ limit to which his Honour referred.”75

Like many of the magistrates responding to our survey, the magistrate in Mantell had expressed the view that the six-month period during which s 32(3) orders are enforceable is too short:

“The learned magistrate noted that the maximum term for which he could discharge the appellant under s 32 of the Act was only six months and … that longer-term treatment was required. He described the s 32 course of action as a ‘six month bandaid’.”76

Since the breach provision was introduced in 2004, s 32 arguably suffers from an important textual ambiguity on the question of what is the maximum permissible duration of a conditional order made under ss 32(3) and 32(2). Unlike its Commonwealth counterpart, found in s 20BQ of the Crimes Act 1914 (Cth), which sets a three-year limit, ss 32(3) and 32(2) are silent on the issue. It was assumed at first instance and on appeal in Mantell at [45] that a conditional order under s 32(3) could not be made beyond the six-month period for which it could be enforced as a result of the 2004 amendments. However, it is a drastic step to imply a six-month limit into the language of s 32(3) when the Parliament chose not to alter it at the time the 2004 and 2005 amendments were inserted. It is doubtful whether the ordinary

72 ibid .

73 ibid .

74 ibid at [42] and [47] . The six month enforceability of s 32(3) orders is discussed under the heading “Enforceability: Failure of defendants to comply with a s 32 order”, on p 19 .

75 ibid at [47] .

76 ibid at [14]–[15] .

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rules of statutory interpretation would permit such a restrictive interpretation. The implication cannot be regarded as necessary for the operation of the section when no such limit had been stipulated in the past.77 The consequence of the interpretation of implying a six-month limit on s 32(3) conditional orders is that magistrates have since been encouraged in Mantell at [45] to utilise the broadly phrased interlocutory provisions in s 32(2) to extend “considerably” s 32(3) conditional orders beyond the purported six-month limit. If s 32(2) is used in this expansive way, then orders made under it should also be monitored and officially collected.

The importance of a treatment planIn Director of Public Prosecutions v Albon78 the court had to determine whether it should quash a s 32 order dismissing malicious wounding charges. The defendant suffered from cognitive deficits, including poor impulse control, due to brain trauma.79 The medical experts testified that it was difficult to locate an appropriate treatment facility for the defendant and that no detailed treatment plan presently existed. After admonishing and warning the defendant, the magistrate dismissed him on condition that he maintain contact with his case worker and the Public Guardian.80 The court held that the magistrate had erred in the exercise of her discretion by:

Not ensuring that evidence was before the court of a treatment plan.1. 81 The court noted that her Honour could have adjourned proceedings in order for the required evidence of a treatment plan to be procured.82

Not ensuring that the defendant was placed into the care of an appropriate person 2. or institution — “it was inappropriate to abandon the defendant to the community generally”.83 Simply imposing a condition obliging the defendant to keep in contact with his case worker and the Public Guardian did not give effect to the intention of the Act that “some person had to be responsible for the defendant.”84 Instead, her Honour could have adjourned proceedings and required the case worker to place the defendant into the care of the Public Guardian on condition that he not be at large.85

77 Wentworth Securities Ltd v Jones [1980] AC 74 at 105–106 and Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28; [1917] HCA 67 at 32 cited with approval by Gleeson CJ in Carr v The State of Western Australia (2007) 239 ALR 415; [2007] HCA 47 at [12] . See also Spigelman CJ in R v JS [2007] NSWCCA 272 at [31] .

78 [2000] NSWSC 896 .

79 ibid at [16] .

80 ibid at [9] .

81 ibid at [26] . Respondent 24 noted that the requirement of having a treatment plan can be difficult for people relying on community health treatment services .

82 ibid at [27] .

83 ibid at [23] .

84 ibid at [24] .

85 ibid at [27] .

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The requirement of a viable treatment plan was also raised by Smart J in the earlier case of Perry v Forbes.86 There his Honour emphasised the need for a “clear and effective” treatment plan to be prepared as part of the medical evidence, and that the accused’s solicitor should have ensured that such a plan was made available to the magistrate.

Magistrates responding to our survey indicated that the reports submitted to the court often fail to contain treatment plans or, where treatment plans are available, their quality varies widely and adjournments are often required to ensure that a workable treatment plan is before the court.

Well prepared treatment plans promote clarity, accountability and a sound basis on which the court can make decisions concerning s 32. Treatment plans and related reports should provide magistrates with the type of information detailed in Table 3.87

Treatment outcome dataData on treatment outcomes is either unavailable or not being presented to the courts. When asked whether the s 32 orders they issue are effective, two-thirds of responding magistrates stated that they do not know because they do not receive any feedback reports. None of the respondents who said that s 32 orders are effective based their answer on reports about the treatment progress of any particular offender. Rather, they based their responses on not being aware of any breach proceedings or further offending. But neither of these indicators are a direct, and therefore valid, measure of the effectiveness of treatment, and both may be false positives.

86 (unrep, 21/5/93, NSWSC) at 15–16 .

87 These comments on treatment plans are based on magistrates’ survey responses; observations of psychologist A Robilliard, unpublished paper presented at the Judicial Commission of New South Wales, Local Court Annual Conference, 2006, Sydney; MD Spiegler and DC Guevremont, Cognitive Behaviour Therapy (4th Ed), 2003, Wadsworth Belmont, California, USA; J White, A Day and L Hackett, Writing Reports for Court: A Practical Guide for Psychologists Working in Forensic Contexts, 2007, Australian Academic Press, Brisbane; and the multiaxial assessment methodology of DSM-IV, op cit n 12 at 27–37 .

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Type of information Examples of details

Personal (psychosocial) factors

Childhood problems (emotional or sexual abuse, dysfunctional family)Education/trainingHousingInterpersonal relationshipsEmployment historyDrug/alcohol usePrior criminality

Medical history Diagnoses of mental disorders. Other diagnoses diminishing psychosocial functioning (eg, a medical condition that adversely affects employment, educational, emotional or interpersonal functioning).

Incident giving rise to charges

The accused’s perspective of the incident giving rise to charges provides an insight into their mental disorder, suggests treatment avenues and plays a role in the magistrate’s assessment of the seriousness of the offence.

Psychometric testing Types of tests used and results. Psychometric tests provide a baseline against which future change can be measured.

DSM-IV Global Assessment of Functioning score and diagnosis

Global Assessment of Functioning score and diagnosis using the criteria of DSM-IV. The report should specify how the diagnosis fits into the scheme of s 32(1)(a).

Nature and course of treatment

Pharmacotherapy and/or Cognitive Behaviour Therapy (CBT), medical treatment, substance abuse treatment, assistance with housing, employment or social security benefits, skills, relationships. Frequency and duration of treatment interventions (eg, daily medication, weekly visits etc). Any known side effects of treatment should be noted.

Prognosis Expected outcomes should be identified, as they provide the basis against which to evaluate the effectiveness of the treatment. Also, the consequences of not attempting treatment at this point should be noted.

Proven effectiveness of proposed treatment (if such evidence is available)

Relevant articles providing empirical support for a proposed treatment in regards to particular disorders (eg, a particular form of CBT may have proven efficacy in treating anxiety disorders, or an antipsychotic medication may relieve symptoms in a particular percentage of patients with psychotic disorders).

Resources required Practical viability: How much treatment will cost and who bears its cost is an issue requiring express resolution from the outset. The plan should also itemise the resources required for treatment and whether those resources are available to the accused.

Suitability, motivation and consent

Clinical viability: Whether the mentally disordered accused understands the treatment plan, consents to it, is able to comply with it and is sufficiently motivated to comply with it needs to be established from the outset. Likewise, where relevant, the suitability and consent of a s 32(3)(a) “responsible person” should be detailed.

Evaluation of treatment & reassessment of accused

The plan should state that it will be evaluated against expected outcomes. Where progress is not being made the court should be notified.

Accountability The plan should state a person responsible for the implementation of the plan. The plan should include a provision making the person responsible for its implementation accountable to the court via regular contact with the court. The plan should also state what constitutes a major (reportable) breach and the consequences that follow.

Transition and life after s 32

The plan should provide the accused with a graduated transition from intensive treatment to maintenance of mental health after the s 32 order has expired.

Table 3: Suggested information required in treatment plans & related reports

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Enforceability: Failure of defendants to comply with a s 32 orderAs a result of amendments introduced by the Crimes Legislation Amendment Act 2002, largely in response to concerns expressed by magistrates, from 14 February 2004 s 32 orders became enforceable for the first time.88

Reports from service providers: s 32ASection 32A provides that a person who assesses or treats an accused under s 32(3) may report a failure by the accused to comply with a treatment order to:

an officer of Community Offender Services, Probation and Parole Service

an officer of the Department of Juvenile Justice, or

any other person or body prescribed by the regulations.

Treatment providers can include in a report any information relevant to the defendant’s non-compliance.

The Probation and Parole Service and Department of Juvenile Justice act as independent informers, instigating breach proceedings and, where appropriate, instructing police prosecutors, who will prosecute the rehearing of the original charge.

Call ups and further proceedings If a magistrate finds that a defendant subject to a s 32 order has failed to comply with its conditions, they may under s 32(3A), within six months of the order being made, call on the defendant to appear before them. Warrants for the accused’s arrest may be issued under s 32(3B).

88 Section 32 was amended by Sch 9[1]–[3] Crimes Legislation Amendment Act 2002, which commenced on 14 February 2004: s 2 and GG No 35 of 13/2/2004, p 612 . See M Spiers “Summary Disposal of Criminal Offences under s 32 Mental Health (Criminal Procedure) Act 1990” (2004) 16(2) Judicial Officers’ Bulletin 9 at 9, who notes that:

“This reform was recommended by the Interdepartmental Committee on the Mental Health (Criminal Procedure) Act 1990 and Cognate Legislation, a committee comprised of senior government agency representatives, barristers and psychiatrists . It was advocated mainly by magistrates and practitioners who could see that many defendants did not comply with conditions of orders where there was no ramifications for non-compliance . This would lead to their offending behaviour escalating, something which was not detected until the person was brought before the court again on fresh, and often more serious, charges . Ultimately, courts were forced to impose severe criminal penalties, including custodial sentences . As a result, the opportunity for positive, effective, intervention and diversion at the earliest stage was being lost . Many magistrates had become reluctant to make orders under s 32 . Consequently, the rehabilitative opportunities that the section presented were not being used .”

So, has making s 32 orders enforceable meant that magistrates use them more? We do not know . Unfortunately, such a statistical analysis cannot be undertaken because pre-2004 figures relate to all dismissals under the Mental Health (Criminal Procedure) Act 1990 . In other words, for pre-2004, there are no figures for dismissals pursuant to s 32 alone .

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Ultimately, if a defendant fails to comply with a condition within six months of being discharged under s 32, the magistrate may under s 32(3D) deal with the charge as if the defendant had not been diverted by way of a s 32 discharge.

A failure to comply with a s 32 order is technically about non-compliance with a condition of a treatment plan, rather than further offending. Spiers argues that s 32 orders are not a type of bond, so conditions to be “of good behaviour” do not accord with the legislative intent of s 32.89 The Local Courts Bench Book relevantly states:

“Committing further offences does not automatically result in a breach of a conditional discharge order. A breach must result from a failure of an accused to comply with mental health or disability service support conditions.”90

The breach figures 2004–2006Section 32A’s objective of encouraging information about breaches to flow from treatment providers through to magistrates is an important element of the therapeutic justice initiative that s 32 embodies.

Unfortunately, figures from the NSW Bureau of Crime Statistics and Research, depicted in Table 4, suggest that, prima facie, s 32A has failed to attain its objective of facilitating the reporting of breaches.

Table 4: Breaches of conditional s 32 orders, 2004–2006

Year s 32(3)(a) s 32(3)(b) Total

2004* 2 5 7

2005 11 4 15

2006 7 9 16

Total 20 of 1556 18 of 659 38

* Only figures for April–December are available for 2004 .

The survey and breachesThe figures in Table 4 were reflected in the responses of magistrates. When asked “What factors determine whether you breach an offender or take no action?”:

9% of respondent magistrates mentioned that they had been notified of a breach

45% mentioned that they had never been notified of a breach

3% said that they had been notified of a breach only once, and

the remainder responded hypothetically or skipped the question altogether.

89 M Spiers, ibid .

90 Local Courts Bench Book, 2004, Judicial Commission of New South Wales, Sydney, at [4120] .

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Table 4 and the responses of magistrates reveal that:

There needs to be detailed guidelines on what constitutes a breach, which all parties (including the accused) agree to. We have suggested in Table 3 that this forms part of the treatment plan.

Service providers may be reluctant to report breaches.

Probation and Parole Service and Juvenile Justice may be reluctant or unable to report a breach when notified of one.

An efficient and reliable breach reporting process needs to be established and monitored.

As Respondent 7 politely understated the matter:

“There needs to be a more definitive method of referral to the judicial officer on any breach … The current somewhat unsatisfactory reporting conditions could be very much simplified.”

Is the six-month enforceability period long enough?The reforms which made s 32 orders enforceable were advocated by magistrates and practitioners who could see that:

non-compliance with conditions of s 32 orders was common

there were no ramifications for non-compliance

it was likely that a mentally disordered accused’s criminal behaviour would escalate, and

the opportunity for diversion and effective intervention was being lost.91

When asked whether the six-month enforceability period is adequate:92

7 respondent magistrates (21%) said that six months was long enough, and

23 respondent magistrates (70%) said that six months was too short.

Some of the magistrates who said that six months was too short recommended a period of time that they believed would make s 32 orders more effective, including 12 months, 12–18 months and two years.93 By way of comparison, the Commonwealth equivalent of s 32 is s 20BQ of the Crimes Act 1914 (Cth). It permits courts of summary jurisdiction to make orders of up to three years duration. It has, however, no equivalent breach provisions.

91 M Spiers, op cit n 88, at 10 .

92 There were three respondents who did not answer this question .

93 One of the reasons suggested for this period of time was directed not at improving treatment outcomes but at ensuring that, for indictable offences tried summarily, community protection was adequately catered for through longer periods of conditional discharge . This reflects a concern that the public interest principle discussed by the court in Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [71] is adequately addressed .

Respondents 25 and 33 expressly noted the discrepancy between s 32 orders and bonds under ss 9 and 10 of the Crimes (Sentencing Procedure) Act 1999, which are enforceable for up to two years .

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Professor Greenberg, Clinical Director of the State-wide Community and Court Liaison Service,94 has also suggested that six months may be too brief a time to obtain real behavioural change and therapeutic gains.95

The issue of enforceability is central to the ability of s 32 orders to provide an effective therapeutic jurisprudence mechanism for offenders with a mental disorder.96 Professor Greenberg has argued that defendants with a mental disorder often have impaired insight into their condition and impaired impulse control — in other words, they may not be able to understand or control their behaviour.97 Typically, they may be unable to recognise and accept the need to take medication and/or adhere to treatment programs. They may also be unable to understand why their behaviour upsets others. On their own, change may be beyond them. Since accountability is not internally generated, it needs to be provided externally. That is why s 32 orders are likely to be most effective in alleviating mental disorder and facilitating behavioural change when they provide for:

Treatment plans (as discussed above).

Incentives (positive reinforcement): The diversion from the standard criminal justice pathway is an obvious incentive. But equally important are the ongoing subtle incentives received along the treatment pathway. In both respects, “the role of the judicial officer [should be] pivotal.”98

Accountability (negative reinforcement): The inverse of point two applies here. The accused has to account for their actions to treatment providers and to the supervising magistrate. Where they have not complied with the terms of their order, constructive feedback and disapproval will be received along the way. The prospect that a breach will lead the defendant back onto the standard criminal justice pathway is the strongest form of negative reinforcement.

Section 32 and unfitnessThe relationship between s 32 and the question of whether an accused is unfit to be tried is vexed. There was a view expressed in Perry v Forbes99 that, since the Local Court is not included in Pt 2 of the Mental Health (Criminal Procedure) Act,

94 The State-wide Community and Court Liaison Service provides the Local Court of New South Wales with a source of specialist mental health services and advice, and facilitates the interaction between the courts and community-based mental health services: <www .justicehealth .nsw .gov .au/services/mental_health .html>, accessed 13 September 2006 .

95 Professor D Greenberg made this comment at a “Mental Health and Criminal Justice Seminar” organised by the Criminal Justice Research Network, on 7 September 2006, Sydney .

96 Regarding the prevalence of mental illness in the New South Wales prison system, see n 10–16 and accompanying text .

97 D Greenberg, op cit n 95 .

98 A Freiberg, “Non-adversarial approaches to criminal justice” (2007) 16(4) Journal of Judicial Administration 205 at 217 .

99 Perry v Forbes (unrep, 21/5/93, NSWSC) at 18 .

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the question of unfitness is not a matter about which magistrates could inquire.100 Mantell v Molyneux101 clearly holds that the common law requires magistrates to entertain the issue of unfitness in appropriate cases. The case involved an appeal against a magistrate’s refusal of two applications for s 32 orders and one application for a permanent stay due to unfitness. Adams J said:

“Even though, in the case of a charge being heard in the Local Court, there is no statutory enactment either dealing with determination of the question of fitness to be tried or as to what should occur if a person is found unfit to be tried, it seems to me that, where a defendant is found not fit to be tried, he or she must be discharged.”102

The question that arises is: should the s 32 discretion be exercised before or after the question of unfitness is determined? The prevailing view is that, as s 32 is a threshold diversionary mechanism, it should be considered before issues of unfitness arise.

Smart J said in Perry v Forbes that s 32 considerations precede fitness considerations because s 32 applies “whether or not a plea is entered and whether or not a defendant is fit to plead.”103 It has been held in two first-instance Supreme Court decisions that even a person whose mental disorder patently makes them unfit to stand trial can be diverted under s 32.104 The question of fitness arises only when the court requires a plea prior to trial.105

If a question of fitness remains after the magistrate exercises their discretion not to deal with the accused by way of s 32, then at that point the fitness issue becomes relevant. As Adams J said in Mantell, the magistrate correctly did not consider the issue of fitness when exercising his discretion not to issue a s 32 order.106

A further issue arising from these authorities is what extra steps the court should take where a defendant in a s 32 application does not or cannot comprehend or follow the proceedings.

Other issues raised by magistrates Other issues raised by magistrates about s 32 related to the nature of the mental disorder from which the accused suffered (or suffers) and the nature of the offence they allegedly committed. We discuss these concerns under the headings “The

100 ibid at 13 .

101 (2006) 68 NSWLR 46; [2006] NSWSC 955 .

102 ibid at [28] .

103 Perry v Forbes (unrep, 21/5/93, NSWSC) at 12 .

104 Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [49], citing Mackie v Hunt (1989) 19 NSWLR 130 .

105 ibid at [16] .

106 ibid .

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coverage of conditions under s 32”, the “Nature of offences committed” and “The role of the seriousness of the offence”, and here simply note some individual responses:

As the summary jurisdiction has expanded, the offences being dealt with under s 32 have become more serious.107

The s 32(1)(a) criteria for mental disorder are imprecise and complicated by an exclusionary reference to the Mental Health Act.108

The phrase “suffering from a mental condition for which treatment is available in hospital [now mental health facility]”, in s 32(1)(a)(iii), is so vague as to be meaningless.109

The section is silent on whether the “responsible person” in s 32(3)(a) needs to agree in writing to their responsibilities, including their responsibilities to advise of a breach.110

The words “into the care of a responsible person” in s 32(3)(a) need to be amended because they are fictitious. For the most part, a variety of professionals or agencies implement the treatment plan, not any one person.111

It might be useful for s 32 to specifically refer to the need for a treatment plan.112

The coverage of conditions under s 32For an accused person to be diverted from the criminal justice system via s 32 it must “appear”113 to the magistrate that the defendant:

1 is/was:

developmentally disabled

suffering from a mental illness, or

suffering from a mental condition for which treatment is available in a mental health facility; and

2 is not a mentally ill person,114 meaning they:

have no serious impairment of mental functioning, characterised by the presence, on its own or in combination, of:

delusions

hallucinations

107 Respondent 2 .

108 For instance, Respondents 6, 20, 22, 23, 30 .

109 Respondents 2, 11 .

110 Respondent 15 .

111 Respondents 14, 25 .

112 Respondent 16 . See the discussion under the heading “The importance of a treatment plan” on p 16 .

113 The appearance threshold in s 32(1) is both necessary and sufficient to enliven the s 32 discretion . Conceivably, it permits the exercise of the discretion on the basis of evidence falling short of a definitive diagnosis .

114 See ss 8, 9 and Sch 1 of the Mental Health Act 1990, and ss 4, 13 and 14 of the Mental Health Act 2007 .

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serious thought disorder

severe disturbance of mood, and

sustained or repeated irrational behaviour indicating the presence of any of the above four symptoms; and

are not a danger to themselves or to others.115

Magistrates responding to our survey expressed concern with the broadness and imprecision of the mental disorder criteria, which was especially vexing to them in cases where differing or equivocal diagnoses were received in respect of a particular accused. Some magistrates suggested that mental disorder should be “serious” or “connected” to the offence (that is, criminogenic). This raises the question of how should a “serious” mental disorder be defined? Further, precisely how closely should any mental disorder be “connected” to an offence?116 From a policy perspective, “serious” and “connected” then become contested levers, whereby therapeutic jurisprudence is made available to some mentally disordered accused but not to others.

Ultimately, some things are irreducibly complex. Mental disorder is such an issue. This is stated candidly in the introduction to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV):

“… although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of ‘mental disorder’. The concept of mental disorders, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations … In DSM-IV, there is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways.” 117

The inherent complexity and fluidity of mental disorder is only magnified when viewed through the perspective of the legal system. Again, the authors of DSM-IV note:

“The clinical and scientific considerations involved in categorization of … mental disorders may not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility … and competency.”118

115 This exclusion, expressed negatively in the Mental Health Act 1990 as “but is not a mentally ill person within the meaning of Ch 3 of the Mental Health Act 1990”, was a source of confusion to some of the magistrates responding to our survey: for instance, Respondents 2, 22 and 23 . It has been effectively retained, although in amended form, by the Mental Health Act 2007 Sch 7 .7[15] .

116 As the presiding magistrate pointed out in Police v Deng [2008] NSWLC 2, after issuing a s 32 order: “… it is not clear to what extent the applicant’s mental health problems played a role in the

incident [a learner driver losing control of her car and running over people at a bus stop], and more than likely this issue will never be clear .” (emphasis added)

117 DSM-IV, op cit n 12, pp xxx–xxxi .

118 ibid, p xxxvii .

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For instance, Spigelman CJ has said that it should not be assumed that all DSM-based diagnoses will necessarily operate as matters in mitigation at sentence.119

The irreducible complexity of mental disorder is naturally difficult to deal with. But, in the case of s 32, the legislature has responded to this complexity by dealing with a broad issue in broad terms and increasing the discretion of magistrates. Ultimately, all that is required is an appearance of a mental disorder.

The following comments on the three-part categorisation of mental disorder used in s 32 highlight the breadth and malleability of the concept.

“Developmentally disabled”Developmental disability is not legislatively defined. An indication of what a developmental disability may comprise, for the purposes of s 32, is provided by the DSM-IV definition of “pervasive developmental disorders”:

“… severe and pervasive impairment in several areas of development: reciprocal social interaction skills, communication skills, or the presence of stereotyped behaviour, interests and activities.”120

Pervasive developmental disorders identified in DSM-IV include:

Autistic disorders

Rett’s disorder

Asperger’s disorder, and

Pervasive developmental disorder not otherwise specified.

It is conceivable, however, that developmental disability is a broader category than pervasive developmental disorder and encompasses all of the disorders listed as “Disorders Usually First Diagnosed in Infancy, Childhood or Adolescence”, which in addition to pervasive developmental disorders include Mental Retardation, Attention-Deficit/Hyperactivity Disorder, Learning disorders and Communication disorders.

119 In R v Lawrence [2005] NSWCCA 91 Spigelman CJ at [23] observed that there appeared to be an assumption that any DSM-based diagnosis will automatically lead to a reduction in sentence . However, as the Chief Justice explained, it is by no means certain that mental disorders such as Anti-social Personality Disorder — notwithstanding their DSM-IV status — are of a character justifying such an outcome: [24] . Indeed, Anti-social Personality Disorder, like all personality disorders, is by definition highly ingrained and resistant to change, so the need for community protection is strengthened, not lessened .

120 DSM-IV, op cit n 12, p 69 .

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Intellectual disability is not listed in DSM-IV. As mentioned above, DSM-IV instead refers to “Mental retardation”, which it defines as:

“[s]ignificantly subaverage intellectual functioning (an IQ of approximately 70 or below) with onset before age 18 years and concurrent deficits or impairments in adaptive functioning”.121

Howard and Westmore suggest that, for practical purposes, developmental disability and intellectual disability are synonymous.122 Nevertheless, the Intellectual Disability Rights Service is concerned that s 32 is not being used as often as it could be for accused with intellectual disabilities.123 They raise as an issue for consideration whether s 32(1)(a)(i) should be amended to expressly refer to “intellectual disability”.

Another issue concerning the meaning of “developmental disability” was raised by Howard and Westmore, who note that developmental disability does not cover cognitive deficits arising from acquired brain injury or illness.124

“Mental illness”As outlined above, what constitutes mental illness for the purpose of s 32 is made in reference to the Mental Health Act. If there is “serious” impairment of mental functioning, as characterised above,125 and the person is a danger to themselves or others, then s 33 is the appropriate means by which to deal with the matter. If these criteria are not met, then the mental illness may fall within the purview of s 32.

“Suffering from a mental condition for which treatment is available in a hospital/mental health facility”The phrase “for which treatment is available in a hospital” has recently been amended by the Mental Health Act 2007126 to read “for which treatment is available in a mental health facility”. Section 4 of the Mental Health Act 2007 defines a mental health care facility as a “declared mental health facility or a private mental health facility”.

121 ibid, p 39 . Section 37(5) of the Bail Act 1978 and s 66F of the Crimes Act 1900 define intellectual disability as “an appreciably below average general intellectual function that results in the person requiring supervision or social habilitation in connection with daily life activities .” See also the definition of intellectual impairment found in s 306M of the Criminal Procedure Act 1986 .

122 D Howard and B Westmore, Crime and Mental Health Law in NSW: A Practical Guide for Lawyers and Mental Health Professionals, 2005, LexisNexis Butterworths, Sydney, p 430 .

123 Intellectual Disability Rights Service, Alleged Offenders with An Intellectual Disability In the Local Courts: Briefing Paper on Draft Report, 2007, Sydney .

124 D Howard and B Westmore, op cit n 122, p 431 .

125 See n 114 and 115 and accompanying text .

126 Sch 7 .7[14] .

28


Magistrates responding to our survey indicated that the phrase “for which treatment is available in a hospital [now mental health care facility]” is archaic and confusing. Psychologist Anna Robilliard suggests that this phrase embodies discredited, pre-Richmond Report policies of over-institutionalising people suffering from a mental disorder, and fails to take account of advances in pharmacotherapy.127 She proposes that a contemporary (and broader) reading of the term “mental condition for which treatment is available in hospital/mental health care facility” would simply be “mental condition for which treatment is available”. As the 2007 amendment still ties the availability of treatment to an institution, this area of concern remains unresolved.

Anna Robilliard further suggests that “mental condition” has no recognised legal or clinical definition. It is a catch-all phrase. Indeed, Howard and Westmore propose that the definition of mental condition is arrived at “through a process of exclusion” — what is not mental illness or a developmental disability may be a mental condition.128 For them, the issue is primarily a legal matter and mental conditions could conceivably include impairment caused by head trauma, personality disorders and substance-related disorders.

Trial into the efficacy of s 32 ordersDouglas, O’Neill and Greenberg conducted a trial involving 53 mentally disordered accused given six-month long s 32 orders with a treatment component. Their aim was to gauge the effect of s 32 orders on:

breaches

recidivism, and

mental health outcomes.129

In terms of breaches and re-offending, they found that:

four members of the s 32 group breached130

127 A Robilliard, op cit n 87 .

128 D Howard and B Westmore, op cit n 122, p 431 .

129 L Douglas, C O’Neill and D Greenberg, “Does court mandated outpatient treatment of mentally ill offenders reduce criminal recidivism? A case-control study”, presented at the Judicial Commission of New South Wales, Local Court Annual Conference, 2006, Sydney . This study used a variety of research methods: direct within-group measures of breaches, re-offending and local hospital utilisation; between-group comparison of re-offending rates (the control group (n=53) comprised non-mentally disordered accused receiving bonds); and interviews with case managers to gauge the extent of any mental health outcomes . It is worth noting, as the authors themselves do, that the study was based in a regional setting . As such, its conclusions may not translate fully to urban settings . See also D McNiel and R Binder, “Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence” (2007) 164:9 AM J Psychiatry 1395, where these authors found that a mental health court in that jurisdiction can reduce the recidivism rates of mentally disordered offenders .

130 The reasons for the breaches were: declining medication, missing an appointment, changing a residential address without informing the court, and absconding .

29


six members of the s 32 group re-offended,131 and

at a 90% confidence interval, members of the s 32 group were “marginally less likely”132 (between 1–25%) to be charged with an offence than members of a control group.

In terms of mental health outcomes, they found that members of the s 32 group had:

reduced readmission rates to hospital

reduced numbers of total hospital bed days, and

improved treatment adherence and patient-clinician interactions.133

Although limited in scope, the study suggests that s 32 orders have the potential to produce positive outcomes. Its conclusions support calls to provide comprehensive outcome data for all s 32 orders.

Future directions: A therapeutic evaluation of s 32 Freiberg argues that legislative innovations such as s 32 reflect a “failure of social services and traditional court systems to cope with major social problems”.134 They are part of a group of non-adversarial responses to varied and complex phenomena, where the courts are seen as “only one of a range of responses to crime and justice, and one which will not provide a magic bullet to solve most of society’s ills”.135

Proponents of therapeutic jurisprudence would argue that s 32 is premised on the following principles:

The way the law is implemented by the entire justice system136 can increase, decrease or have a neutral effect on the well-being of offenders.

The criminal justice system should capitalise on the moment that offenders are brought before it to encourage and facilitate pro-social behavioural change.

131 Compared with 13 members of the control group .

132 L Douglas, C O’Neill and D Greenberg, op cit n 129, pp 1, 6; 90% CI: 1–25% .

133 In contrast to magistrates’ concerns about accountability and enforceability, the clinicians interviewed as part of this study observed that “the increased accountability imposed following the revision of the Act facilitated treatment adherence and allowed patient–clinician interactions to focus on longer-term issues”: ibid p 7 .

134 A Freiberg, op cit n 98 at 209–210 .

135 ibid at 211 .

136 Therapeutic jurisprudence is holistic in that its perspective embraces the entire justice system — police, legal representatives, judicial officers, probation and parole officers, and correctional officers . In this respect, see L Teplin, “Keeping the Peace: Police Discretion and Mentally ill” Persons, (2000) (July) National Institute of Justice Journal at 12 (cited by R Bernstein and T Seltzer, op cit n 27, at 145) . Teplin notes that “during street encounters, police officers are almost twice as likely to arrest someone who appears to have a mental illness … 47% of people with a mental illness were arrested, while only 28% of individuals without a mental illness were arrested for the same behaviour” (emphasis added) .

30


A therapeutic jurisprudence response is multidisciplinary and designed to enhance well-being.

Therapeutic jurisprudence balances community protection (justice principles) against individual needs (therapeutic principles).

The term “therapeutic jurisprudence” or “TJ” is not popular amongst lawyers.137 The term carries a heavy load because it signifies so much — theory, academic discipline, diverse practices and the promised solution to a variety of social problems.138 However, as Deputy Chief Magistrate (SA) Andrew Cannon notes, the term usefully recognises and legitimises a quintessentially pro-social attitude to judging, one which attempts to enhance an offender’s personal autonomy and responsibility via a:

“respectful and proactive engagement with people involved in the court process … [that] pay[s] attention to their needs, rather than a neutral but mechanical and unsatisfying closing of files”.139

The underlying assumption is that addressing therapeutic jurisprudence issues also addresses, by way of cause and effect, the criminal justice concern of recidivism. Deputy Chief Magistrate (Vic) Jelana Popovic puts it this way:

“The sentencing principle of ‘specific deterrence’ has taken on a new guise; we are now focusing on reducing harm to the community by addressing individual factors which have led to offending in an attempt to prevent or reduce the recurrence of offending.”140

However, in order for therapeutic jurisprudence initiatives to be accepted without reservation, they must ultimately be evaluated on the basis of measurable therapeutic and criminal justice outcomes.141

137 The Hon W Martin (Chief Justice of Western Australia), “After Dinner Address”, Third International Conference on Therapeutic Jurisprudence, 7 June 2006, Perth, Western Australia, available at: <www .supremecourt .wa .gov .au/publications/pdf/TherapeuticJurisprudence-07062006 .pdf>, accessed 6/11/2007 .

138 A Freiberg, op cit n 98 at 211 notes that there are “over a thousand articles, many books and more than 20 special issues of journals on the topic” . See also G Reinhardt and A Cannon (eds), Transforming Legal Processes in Court and Beyond: A Collection of Refereed papers from the 3rd International Conference on Therapeutic Jurisprudence, 7–9 June 2006, Perth, Australasian Institute of Judicial Administration, 2007, Melbourne .

139 A Cannon, “Therapeutic jurisprudence in courts: Some issues of practice and principle”, (2007) 16 Journal of Judicial Administration 256 at 258 .

140 J Popovic, op cit n 22 .

141 On issues concerning the evaluation of therapeutic initiatives, see L Roberts and D Indermaur “Key challenges in evaluating therapeutic jurisprudence initiatives” (2007) 17 Journal of Judicial Administration 60 .

31


The resources debate and s 32Magistrates responding to our survey were concerned about the utility of s 32 being undermined by a lack of mental health care resources.142

Without adequate mental health care resources, the flow of mentally disordered accused appearing before the courts will likely continue — if not increase — and the effectiveness of initiatives such as s 32 will remain in doubt.

As Bernstein and Seltzer note:

“No diversion or alternative disposition program … can be effective unless the services and supports that individuals with … mental illnesses need to live in the community are available. Moreover, it is critical that these services exist in the community for everyone, not just offenders, and that supports not be withdrawn from others in need and merely redirected to those who have come in contact with the criminal justice system. Additional, specialized resources and programs are needed to reduce the risk of arrest for people with mental illnesses and the recidivism of those who have encountered the criminal justice system.”143

Resources should also provide for adequate data and data analysis. Presently, attempts to evaluate s 32 are hampered by the lack of data on treatment progress and the questionable data on breaches. Providing magistrates with information concerning the progress of defendants subject to s 32 orders and whether s 32 orders are breached would be an initial improvement of considerable magnitude — one which would enable all future decisions concerning s 32 to be approached empirically.

A failure to provide adequate resources for s 32, if proved, consigns the policy objectives behind s 32 to the level of rhetoric, denies the rights and dignity of mentally disordered persons, and represents an ongoing failure on the part of a privileged society to care for some of its most vulnerable members. This state of affairs is undesirable for all those concerned — magistrates, mentally disordered persons and the community.

The concerns expressed by magistrates in the survey — particularly those about insufficient mental health, care services, inadequate feedback on treatment outcomes and breaches — may be making some reluctant to utilise the section. Put simply, a lack of resources will undermine the policy objectives expressed by the Parliament in s 32.144

142 For instance, Respondents 30 and 12 mentioned a lack of resources in rural areas; Respondent 24 mentioned this issue in the context of community health services not having the resources necessary to produce an adequate treatment plan; Respondent 13 asked, if a person with limited capacity is not supported by appropriate services, due to a lack of resources, why should they be breached? Respondent 24 mentioned the need for more resources for all mental health issues . The magistrates’ comments point to regional inequity and a general lack of enforceability, accountability and mental health care resources .

143 R Bernstein and T Seltzer, op cit n 27 at 147 .

144 See the discussion on p 3 about insufficient mental health resources, as raised by the Legislative Council Select Committee on Mental Health, op cit n 16 .

33

Appendix 1: Text of ss 32 and 32A

32 – Persons suffering from mental illness or condition (1) If, at the commencement or at any time during the course of the hearing of proceedings

before a Magistrate, 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 take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings,(b) grant the defendant bail in accordance with the Bail Act 1978,(c) make any other order that the Magistrate considers appropriate.

(3) 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(c) unconditionally.

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

(3B) If the defendant fails to appear, the Magistrate may: (a) issue a warrant for the defendant’s arrest, or(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to

issue a warrant for the defendant’s arrest.

(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately: (a) issue a warrant for the defendant’s arrest, or(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to

issue a warrant for the defendant’s arrest.

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.


34


(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).

(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.

(5) The regulations may prescribe the form of an order under this section.

32A – Reports from treatment providers (1) Despite any law, a person who is to assess another person’s mental condition or provide

treatment to another person in accordance with an order under section 32(3) (a “treatment provider”) may report a failure to comply with a condition of the order by the other person to any of the following: (a) an officer of Community Offender Services, Probation and Parole Service,(b) an officer of the Department of Juvenile Justice,(c) any other person or body prescribed by the regulations.

(2) A treatment provider may include in a report under this section any information that the treatment provider considers is relevant to the making of a decision in relation to the failure to comply concerned.

(3) A report provided under this section is to be in the form approved for the time being by the Director-General of the Attorney General’s Department.

35

Appendix 2

Persons suffering from mental illness or conditionQuestionnaire

Dear Magistrate,

The Research Division is writing an issues paper about s 32 of the Mental Health Criminal Procedure Act 1990 — Persons suffering from mental illness or condition. The text of 32 and the research proposal approved by the Commission is attached. Part of the paper will raise for discussion some of the practical issues and problems faced by Magistrates in implementing the policy behind s 32.

The questions set out below ask your views about the language of the section; the circumstances when you have used the section; whether you find the parties assist in both the hearing and breach proceedings; and more generally whether the section is effective, ie., have you found defendants breach and/or reappear in your Court on other matters.

… your answers will be kept strictly confidential and you will not be identified or quoted in the paper (unless you really want to be).

To complete the questionnaire just press reply and type in your answers where indicated (delete the dotted lines if necessary). For selecting between alternative responses, either underline the word you want to select or delete the words you do not want to select. If a particular question is not relevant to you, just indicate “n/a”. After you have completed the questionnaire, please email it to [email protected]. Your reply will be sent to Hugh Donnelly, Acting Research Director, Judicial Commission of NSW. The due date for replies is Monday 16 April.

Hugh Donnelly, Acting Research Director

36


1 The Court of Appeal in DPP v Mawas [2006] NSWCA 154 at [75]–[80] held that s 32 requires a magistrate to make three decisions: firstly, in accordance with s 32(1)(a), whether the defendant is eligible to be dealt with under the section (a finding of fact); secondly, whether, having regard to the facts alleged or such other evidence as the magistrate considers relevant, it would be more appropriate to deal with the defendant under s 32 than otherwise in accordance with law. That decision involves a discretionary judgment with due regard to the seriousness of the offending conduct. Thirdly, once the magistrate determines that it is more appropriate to deal with the defendant in accordance with s 32, the magistrate must decide which of the actions outlined in s 32(2)–(3) should be taken.

Is the language of the section and related case law easy or difficult to apply on a scale of 1 very easy, 2 easy, 3 reasonable, 4 difficult or 5 very difficult?

2 Any other comments about DPP v Mawas [2006] NSWCA 154 at [75]–[80]?

3 Do you have any suggestions about to the wording of s 32?

4 Breach proceedings can only be taken up to 6 months after a conditional discharge (s 32(3D)). Is 6 months long enough?

5 R v McMahon [2006] NSWDC 81 raised issues about the intersection between a defendant’s mental health and their use of “ice” (crystal methamphetamine hydrochloride). Do you think s 32 is a suitable mechanism for dealing with offenders whose offending may be attributable to their ice use?

6 If it appears to a Magistrate that a defendant may be unfit to stand trial, should the magistrate be able to refer the person to the District Court for a fitness hearing?

7 Have you had cause to use s 32 orders?

Never Occasionally Frequently

8 If “Never” … Why not?

9 If “Occasionally” or “Frequently” … Why did you use them?

10 For what types of crimes have you used them?

11 For what types of crimes have you declined to use them?

12 For what types of offender did you use them?

13 Is early intervention in mental health issues an important consideration in deciding whether or not to issue a s 32 order?

14 Are your s 32 orders typically by consent or contested?

15 Are s 32 applications ordinarily made by Legal Aid?

16 McColl JA said in DPP v Mawas [2006] NSWCA 154 at [24] that “in exercising the Pt 3 jurisdiction, the Magistrate is given powers of an inquisitorial or administrative nature to inform herself or himself as the Magistrate thinks fit”. Have you had cause to use that power to order a report or where the parties have not assisted?

17 Are the diagnostic and treatment reports authored by service providers prepared to an adequate standard?

37

Appendix 2 — Questionnaire

18 Do you feel well supported by the treatment providers involved with the s 32 process?

Always Usually Usually not Never

please explain your response

19 Do you feel well supported by the:

– Prosecution? Always Usually Usually not Never – Defence (including Legal aid)? Always Usually Usually not Never – Police? Always Usually Usually not Never – Mental Health professionals? Always Usually Usually not Never


20 What factors determine whether you breach an offender or take no action?

21 Committing further offences does not automatically result in a breach of a conditional discharge order since a breach must result from a failure of an accused to comply with set conditions. How do you deal with further offending?

21 Are the breach reports prepared by Probation and Parole adequate?


22 When you used s 32 orders, were they usually effective in terms of desired outcomes?

Yes Unsure No


23 Have you found that persons subject to s 32 re-appear in later proceedings?


24 Do the 2004 amendments that made s 32 orders enforceable for six months work?

Yes Unsure No


25 Do you have any other suggestions to improve the current state of the law?

39

Bibliography

Articles R Bernstein and T Seltzer, “Criminalization of People with Mental Illnesses: The Role of Mental Health Courts in System Reform” (2003) 7 UDCL Rev 143

T Butler et al, “Mental Disorders in Australian Prisoners: A Comparison with a Community Sample” (2006) 40 Australian and New Zealand Journal of Psychiatry 272

A Cannon, “Therapeutic jurisprudence in courts: Some issues of practice and principle”, (2007) 16 Journal of Judicial Administration 256 at 258

T Carney, D Tait, D Chappell, F Beaupert, “Mental Health Tribunals: ‘TJ’ Implications of Weighing Fairness, Freedom, Protection and Treatment” (2007) 17 Journal of Judicial Administration 46

C Jones and S Crawford, “The psychosocial needs of NSW court defendants” (2007) 108 Crime and Justice Bulletin 1

A Freiberg, “Non-adversarial approaches to criminal justice” (2007) 16(4) Journal of Judicial Administration 205 at 217

D Greenberg and B Nielson, “Moving Towards a Statewide Approach to Court Diversion Services in NSW” (2003) 14(11–12) NSW Public Health Bulletin 227

M King, “Afterword”, (2006) Murdoch University Electronic Journal of Law, Special Series: The Therapeutic Role of Magistrates’ Courts 1

M King and K Auty, “Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction” (2005) 30(2) Alt LJ 69

D McNiel and R Binder, “Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence” (2007) 164: 9 AMJ Psychiatry 1395.

L Roberts and D Indermaur “Key challenges in evaluating therapeutic jurisprudence initiatives” (2007) 17 Journal of Judicial Administration 60

M Spiers “Summary Disposal of Criminal Offences under s 32 Mental Health (Criminal Procedure) Act 1990” (2004) 16(2) Judicial Officers’ Bulletin 9

L Teplin, “Keeping the Peace: Police Discretion and Mentally ill Persons”, (2000) (July) National Institute of Justice Journal at 12

T Walsh, “The Queensland Special Circumstances Court” (2007) 16 Journal of Judicial Administration 223

40


Books & ReportsG Andrews, W Hall, M Teesson and S Henderson, The Mental Health of Australians, 1999, Commonwealth Department of Health and Aged Care, Canberra

Alleged Offenders with An Intellectual Disability In the Local Courts: Briefing Paper on Draft Report, 2007, Intellectual Disability Rights Service, Sydney

Australian Crime: Facts and Figures, 2006, Australian Institute of Criminology, Canberra

T Butler and S Allnut, Mental Illness Among New South Wales Prisoners, 2003, NSW Corrections Health Service, Sydney

Diagnostic and Statistical Manual of Mental Disorders, Fourth Ed, Text Revision (DSM-IV), 2000, American Psychiatric Association, Washington DC

D Howard and B Westmore, Crime and Mental Health Law in NSW: A Practical Guide for Lawyers and Mental Health Professionals, 2005, LexisNexis Butterworths, Sydney, p 430

J Laing, Care or Custody? Mentally Disordered Offenders in the Criminal Justice System, 1999, Oxford University Press, Oxford, pp 163–166

Legislative Council, Select Committee on Mental Health, Mental Health Services in New South Wales: Final Report, 2002, NSW Parliament (Legislative Council), Sydney

Local Court Bench Book, 2004, Judicial Commission of New South Wales, Sydney

Local Court of New South Wales Annual Review 2004, 2004, Office of the Chief Magistrate, Sydney



G Reinhardt and A Cannon (eds), Transforming Legal Processes in Court and Beyond: A Collection of Refereed papers from the 3rd International Conference on Therapeutic Jurisprudence, 7–9 June 2006, Perth, 2007, Australasian Institute of Judicial Administration, Melbourne

Report 80: People with an Intellectual Disability and the Criminal Justice System, 1996, New South Wales Law Reform Commission, Sydney, 25–32

Richmond Report: Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (Vols 1–6), 1983, NSW Department of Health, Sydney

S Roach Anleu and K Mack, “Australian Magistrates, Therapeutic Jurisprudence and Social Change”, Transforming Legal Processes in Court and Beyond: A Collection of Refereed papers from the 3rd International Conference on Therapeutic Jurisprudence, 7–9 June 2006, Perth, 2007, Australasian Institute of Judicial Administration, Melbourne

G Skrzypiec, J Wundersitz, and H McRostie, Magistrates Court Diversion Program: An Analysis of Post-Program Offending, 2004, Office of Crime Statistics and Research, Adelaide

41

Bibliography

MD Spiegler and DC Guevremont, Cognitive Behaviour Therapy (4th Ed), 2003, Wadsworth Belmont, California, USA

J White, A Day and L Hackett, Writing Reports for Court: A Practical Guide for Psychologists Working in Forensic Contexts, 2007, Australian Academic Press, Brisbane

Conference papers & presentationsL Babb, “New Mental Health Criminal Procedures in 2006”, paper presented at the NSW Young Lawyers Continuing Legal Education Seminar, “Recent Developments in Mental Health Criminal Procedure”, 10 May 2006, Sydney

L Douglas, C O’Neill, D Greenberg, “Does court mandated outpatient treatment of mentally ill offenders reduce criminal recidivism? A case-control study”, Judicial Commission of New South Wales, Local Court Annual Conference, 2006, Sydney

D Greenberg, “Mental Health and Criminal Justice Seminar”, Criminal Justice Research Network, 7 September 2006, Sydney

M King, “Problem-Solving Court Programs in Western Australia”, paper presented at the Sentencing: Principles, Perspectives and Possibilities conference, 10–12 February 2006, Canberra

W Martin, “After Dinner Address”, Third International Conference on Therapeutic Jurisprudence, 7 June 2006, Perth, Western Australia

J Popovic, “Meaningless vs Meaningful Sentences: Sentencing the Unsentenceable”, paper presented at the Sentencing: Principles, Perspectives and Possibilities conference, 10–12 February 2006, Canberra

A Robilliard, “Section 32 of the Mental Health Act”, paper presented at the Judicial Commission of New South Wales, Local Court Annual Conference, 2006, Sydney,

Second Reading speechesThe Hon P Collins, “Mental Health Bill, Mental Health (Criminal Procedure) Bill and Miscellaneous Acts (Mental Health) Repeal and Amendment Bill”, New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 22/3/1990, p 884

The Hon T Kelly, “Mental Health (Criminal Procedure) Amendment Bill”, New South Wales Parliamentary Debates (Hansard), Legislative Council, 29/11/2005, p 20085

Websites & TelevisionJustice Health NSW: Community and Court Liaison Service

Magistrates’ Courts of South Australia: Court Diversion Program

Magistrates’ Court of Tasmania: Mental Health Diversion List

Magistrates’ Courts of Victoria: Mental Health Court Liaison Service

ABC’s 7:30 Report (17/9/2007)

43

Table of cases

Table of cases

Carr v The State of Western Australia (2007) 239 ALR 415; [2007] HCA 47, 16

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 12

Confos v Director of Public Prosecutions [2004] NSWSC 1159, vii, 12, 13

Director of Public Prosecutions v Albon [2000] NSWSC 896, viii, 16

Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154, vi, vii, 10, 11, 12, 14, 21

El Mawas v Director of Public Prosecutions [2005] NSWSC 243, 13

House v The King (1936) 55 CLR 499, vi, 12

Mackie v Hunt (1989) 19 NSWLR 130, viii, 23

Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955, v, vi, vii, viii, 5, 14, 15, 16, 23

Minister for Corrective Services v Harris (unrep, 10/7/87, NSWSC), 14

Ngatayi v The Queen (1980) 147 CLR 1, viii

Perry v Forbes (unrep, 21/5/93, NSWSC), viii, 17, 22, 23

Police v Deng [2008] NSWLC 2, 5, 25

R v Engert (1995) 84 A Crim R 67, 1

R v JS [2007] NSWCCA 272, 16

R v Lawrence [2005] NSWCCA 91, 26

R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155, 10

R v Morris (unrep, 14/7/95, NSWCCA), v

Wentworth Securities Ltd v Jones [1980] AC 74, 16

Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28; [1917] HCA 67, 16

45

Index

IndexAAsperger’s disorder, 26Attention-deficit/hyperactivity disorder, 26Australian Standard Offence Classification (ASOC), 5Autistic disorders, 26

BBreaches breach provision, 15, 21 reporting process on, need to establish, 20 s 32 orders, effect of, 29 survey on, 20 2004–2006 table, 20 unavailability of data on, 20–21Bureau of Crime Statistics and Research study NSW Local Courts, survey of, v, 1

CCommunication disorders, 26Conditional order, 15, 16 breach of, 19–22 Commonwealth counterpart, 15 maximum permissible duration of, 15Crimes Act 1914 (Cth) Commonwealth equivalent of s 32, 21Crimes Act 1900 (NSW) s 428M s 32 previously found in, 9Criminal justice system diversion from, 1 offender-based intervention, 2Criminal proceedings applicable to, 11

DDiscretion, 11, 12 appeal, challenged on, 12 appropriateness, decisions concerning, 13 breadth of, 11 eligibility, decisions concerning, 13 inquisitorial powers, 12 matters taken into account, 13 seriousness of offence, 13 six-month enforceability limit of orders, 14 treatment plan, existence and content of, 14 outcome, decisions concerning, 12, 13 “two-fold test”, 11, 12 unfitness to be tried, and s 32, 22Douglas, O’Neill and Greenberg trial into efficacy of s 32 orders, 28

EEnforceability Crimes Legislation Amendment Act 2002,

amendments, 19 six-month period, 14–16, 19, 21 Commonwealth equivalent, 21 Greenberg, Professor, comments on, 22

FFreiberg, A, 29Future directions s 32, therapeutic evaluation of, 29

GGreenberg, Professor, observations on offender behaviour, 22 clinical trial on s 32, 28

IInquiry into Health Services for the Psychiatrically

Ill and Developmentally Disabled see Richmond Report

Intellectual disability, 26Interlocutory orders, 14, 15

LLearning disorders, 26Legislative Council’s Select Committee on Mental

Health, Final Report, ix, 3, 31 mental health care, decentralisation, 2, 3Local Court, innovation and, 8–9

MMagistrates inquisitorial powers, 12Mental condition definition, 27, 28 recorded incidences of, in NSW, 2Mental disorders alleviation, 22 accountability, 22 incentives, 22 treatment plans see Treatment plans categorisation of, three part, 26 cognitive deficits, coverage of, 27 complexity of, 25, 26 defined, how should be, viii, 25 Diagnostic and Statistical Manual of Mental

Disorders (DSM-IV), 25 disorders first diagnosed in infancy, childhood or

adolescence, 26 nature of, 24–27 nature of offences committed by sufferers of, 5–7, 24 pervasive developmental disorders, 26 prevalence of, in NSW, 2 recorded incidence of, in NSW, 2 s 32 criteria, 24–27 developmentally disabled, 26 suffering from condition for which treatment available in a mental health care facility, 27–28 “serious” and “connected”, 25Mental Health Act 1990 commencement, 9 Second Reading Speech, 9 s 4(2)(a) and (b), 10Mental Health Act 2007 mental health facility, for which treatment is available in, 27–28 mentally ill person, definition of, 1 s 68, 10Mental health assessment defendant to obtain, 1, 4Mental health care community-based services, 3 decentralisation of, 3, 10

46


Mental health care facility definition, 27–28Mental Health (Criminal Procedure) Act 1990 s 32 and 32A amendment, 9 Second Reading Speech, 9, 10 commencement, 9 text of, 33, 34Mental health outcomes s 32 orders, effect of, on, 29Mental retardation, 27 definition, 27Mentally disordered defendants diversion of, 1 maximising personal development, 10 protection of rights, 10 responsibility for, 16 progress of, 17, 20, 31 sentencing of, 1

OOffences Australian Standard Offence Classification (ASOC), 5 nature of, 5, 23 injury, acts intending to cause, 5 offences against justice procedures, 5 property damage and environmental

pollution, 5 public order offences, 5 theft and related offences, 5 2004–2006 table of, 6, 7 seriousness of, 24Orders under s 32 conditional discharges, 4 care of responsible person, 4, 19 discretion to make, 11 see also Discretion duration, vii, 14 failure to comply with, 19, 20 feedback on, 19 final, 14, 15 interlocutory, 14, 15 matters taken into account, 18 “two-fold test”, 11, 12, 13 number and nature of, vi, 3, 4 2004–2006 table, 4 offences for which declined to issue, 5 unconditional discharges, 4

PPervasive developmental disorders DSM-IV definition, 26Pharmacotherapy advances in, 28Prisoners drugs and alcohol, 3 intellectual disability, 3 mental health, 2 psychiatric disorder, 3 psychological distress, 2Prisons mental health, adverse effect on, 2 prisoner population, mental health, 3Public interest, 12

RRecidivism criminal justice concern of, 30 s 32 orders, effect of, on, 28Resources adequate, failure to provide, 3, 31 Bernstein and Seltzer, 31 data and data analysis, provision for, 31 utility of s 32 undermined by lack of, 31Rett’s disorder, 26Richmond Report, 3, 10 recommendations, 10

SSimilar initiatives, 5, 8 innovation, 9 “pragmatic incrementalism”, 8Statutory history, 1, 9Statutory objectives, 1, 31 defendant, responsibility for, 16 failure to comply with, 19 guilt or innocence, no finding as to, 11 New South Wales Law Reform Commission, 1 offenders, underlying mental health issues, 5 purpose, 11, 14, 15 seriousness of offence, role of, 13 targeted application, 4 time of offence and proceedings, applicable to, 11Statutory scheme, 11Survey of magistrates open-ended questions, 1 operation of, 1 purpose of, 1 response to, 1 survey document, 35–37

TTherapeutic response, 29 therapeutic jurisprudence, 29, 30Traffic offences s 32 orders, reluctant to issue, for, v, 5Treatment order failure to comply with, 19Treatment outcomes unavailability of data on, 19, 31Treatment plan adherence to, 22 existence and content of, 14 importance of, 16 information required in, 17, 18 need for, specific reference to, viii, 24 non-compliance with condition of, v, 19 requirement of, 16

UUnfitness to be tried Magistrates to entertain issue of, 23 relationship between s 32 and, viii, 22

WWarrant for arrest, 19

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