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Federal Sentencing Alternatives for Persons Suffering from Mental Illness or Intellectual Disability

List of Sub-headings:

Sentencing Alternatives Under the Crimes Act 1914 (Cth) for Persons With Mental Illness or Intellectual Disability
Sentencing Alternatives for Persons Suffering from Mental Illness
Scope of s 20BS(1)
- Hospital Orders
--- Period of Detention in Hospital
--- Hospital Order Revoked
--- Discharge of Hospital Orders
Scope of s 20BV
- Psychiatric Probation Orders
--- Conditions of Psychiatric Probation Orders
--- Breach and Enforcement of Psychiatric Probation Orders
--- Right of Appeal
Sentencing Alternatives for Persons Suffering from Intellectual Disability - s 20BY
- Program Probation Orders
--- Conditions of the Program Probation Order
--- Breach and Enforcement of Program Probation Order

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Factors to Consider When Sentencing A Person With a Mental Condition

Commentary on Sentencing Alternatives Under the Crimes Act 1914 (Cth) for Persons With a Mental Illness or Intellectual Disability

Part IB, Division 9 of the Crimes Act 1914 (Cth) details different schemes for the sentencing of offenders with a mental illness and the sentencing of offenders with an intellectual disability.

Options available to the court in lieu of passing sentence when dealing with a person suffering from mental illness include:

Where a court is sentencing a federal offender who is suffering from intellectual disability the court may:

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Sentencing Alternatives for Persons Suffering from Mental Illness

The Crimes Act 1914 (Cth) makes available to the court alternatives in lieu of passing sentence when dealing with a person suffering from mental illness. These options include:

Note: a hospital order under s 20BS is only available where a person is convicted of a federal offence on indictment.

As with sentencing generally, sentencing an offender with a mental illness involves a balancing exercise between deterrence and punishment, the protection of society and the rehabilitation of the offender. In Lauritsen v the Queen [2000] WASCA 203 Malcolm CJ stated:

mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of imposition of a sentence which exceeds the seriousness of the offence. [1]

For further discussion of relevant sentencing factors see Factors to Consider When Sentencing A Person With a Mental Condition.

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Scope of s 20BS(1)

Under s 20BS(1), the court may make an order that a person convicted on indictment of a federal offence be detained in a hospital for treatment. This is known as a hospital order.

The order must specify:

  • the hospital in which the person will be detained; and
  • the period of detention; and
  • the treatment that the person will receive in the hospital.

A Court must not make a hospital order unless, but for the mental illness of the person, the court would have sentenced the person to a term of imprisonment: s 20BS(2).

hospital orders

A hospital order may only be made where the court has considered the reports of two qualified psychiatrists with experience in the diagnosis and treatment of mental illness: s 20BS(5).

After considering the reports, a hospital order may be made where the court is satisfied that:

  • the person is suffering from a mental illness within the meaning of the civil law of that State or Territory: s 20BS(1)(a); and
  • the illness contributed to the commission of the offence by the person: s 20BS(1)(b); and
  • appropriate treatment is available in a hospital in that State or Territory: s 20BS(1)(c); and
  • the proposed treatment cannot be provided to the person other than as an inmate of a hospital in that State or Territory: s 20BS(1)(d).

A hospital order may be made in respect of a person already serving a federal sentence: see s 20BS(6).

A hospital order is made without passing sentence on the person. No other sentence may be imposed on the offender in relation to the same offence. [2]

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Period of Detention in Hospital

A hospital order made under s 20BS(1) must specify the period during which the person will be detained in the hospital.

The period of detention must not exceed the period of imprisonment to which the person would have been sentenced had the hospital order not been made: s 20BS(3).

The court may fix a shorter period during which the person may not be released from hospital: s 20BS(4). The discretion to release the person at the end of this shortened period lies with the Attorney-General: s 20BT(1). After considering the reports of two qualified psychiatrists, the Attorney-General must release a person unless:

  • either of the reports recommends that the person not be released because of continuing need for treatment: s 20BT(2)(a); or
  • the person continues to be required to serve a federal sentence that the person was serving at the time the hospital order began: s 20BT(2)(b).

A person may be released on such conditions as the Attorney-General considers appropriate: s 20BT(2).

Note: for a person already serving a federal sentence at the time at which the hospital order begins, a shorter period determined under s 20BS(4) may not end:

  • before any non-parole period set in respect of that federal sentence: s 20BS(7)(a); or
  • before the end of that federal sentence, where no non-parole period has been set: s 20BS(7)(b).

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Hospital Order Revoked

Where a person is released by the Attorney-General at the completion of the shortened hospitalisation period, such a release order may be revoked in accordance with the provisions in s 20BM and s 20BN: s 20BT(3).

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Discharge of Hospital Orders

At any time while a hospital order is in force, the order may be discharged and a new sentence may be imposed by the Court which made the hospital order. [2] An application for discharge may be made by the person who is subject to the hospital order or by the Director of Public Prosecutions: s 20BU(1).

Where the court discharges the order and imposes a new sentence:

  • the new sentence imposed must be a sentence that could have been imposed when the original hospital order was made: s 20BU(1); and
  • the new sentence must commence on the date of commencement of the order: s 20BU(3)(a); and
  • the length of the new sentence must not exceed the length of the order: s 20BU(3)(b); and
  • if the new sentence is one of imprisonment, then the person is to be treated as having served that part of the sentence during which he or she was subject to involuntary hospitalisation: s 20BU(3)(c).

The court must not discharge a hospital order unless the court is satisfied that:

  • the person has sufficiently recovered from their mental illness to no longer require involuntary hospitalisation: s 20BU(2)(a); or
  • that the mental illness will not respond or respond further to hospital treatment: s 20BU(2)(b).

In making a decision to discharge a hospital order, the court:

  • must consider the reports of two qualified psychiatrists with experience in the diagnosis and treatment of mental illness: s 20BU(4)(a); and
  • must consider any applicable reports: s 20BU(4)(b); and
  • may obtain and consider any other information as it thinks relevant: s 20BU(4)(c).

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Scope of s 20BV

Under s 20BV(1), the court may make an order that a person convicted of a federal offence reside at, or attend, a specified hospital in order to receive psychiatric treatment.

This is known as a psychiatric probation order.

psychiatric probation orders

A psychiatric probation order may be made where the court is satisfied that:

  • the person is suffering from a mental illness within the meaning of the civil law of that State or Territory: s 20BV(1)(a); and
  • the illness contributed to the commission of the offence by the person: s 20BV(1)(b); and
  • appropriate psychiatric treatment for the person is available in a hospital or other place in that State or Territory: s 20BV(1)(c); and
  • the person consents to the order being made: s 20BV(1)(d).

The person, or a legal guardian, must consent to the psychiatric probation order being made: s 20BV(2).

The treatment to be undertaken by the person may be varied on application: s 20BV(4).

A psychiatric probation order is made without passing sentence on the person. No other sentence may be imposed on the offender in relation to the same offence. [3]

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Conditions of the Psychiatric Probation Order

A psychiatric probation order is subject to the condition that the person will be subject to the supervision of, and obey all reasonable directions given by, a probation officer for a specified period not exceeding 2 years: s 20BV(3)(a).

A psychiatric probation order is subject to the condition that the person will be of good behaviour for a specified period, not exceeding 5 years: s 20BV(3)(b).

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Breach and Enforcement of Psychiatric Probation Order

Procedure to be followed where a magistrate receives information that a person has, without reasonable excuse, failed to comply with a condition of the order is detailed in s 20BW.

Where the court, in which the psychiatric probation order was made, is satisfied that a person has, without reasonable excuse, failed to comply with a condition of the order, the court may:

Note: State or Territory law regarding enforcement or recovery of a fine imposed on an offender applies to a pecuniary penalty imposed under s 20BX(1)(a): s 20BX(4). See also s 15A.

In determining what action to take for breach of a psychiatric probation order, the court must, in addition to any other matters, take into account:

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Right of Appeal

Section 20BX relates to the right of appeal for those sentenced to psychiatric probation orders.

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Sentencing Alternatives for Persons Suffering from Intellectual Disability - s 20BY

Where a court is sentencing a federal offender who is suffering from intellectual disability the court may:

  • make a program probation order under s 20BY.

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Program Probation Orders

Under s 20BY(1), the court may make an order that a person convicted of a federal offence be released on condition that the person undertake a program or treatment. This is known as a program probation order.

The order must specify:

  • the period during which the order applies; and
  • the program or treatment to be undertaken.

A program probation order may be made where the court is satisfied that:

  • the person is suffering from an intellectual disability: s 20BY(1)(a); and
  • the disability contributed to the commission of the offence by the person: s 20BY(1)(b) ; and
  • an appropriate education program or treatment is available for the person in that State or Territory: s 20BY(1)(c).

Note: 'intellectual disability' is not defined in the Crimes Act 1914 (Cth).

The person, or a legal guardian, must consent to the psychiatric probation order being made: s 20BY(2).

The treatment to be undertaken by the person may be varied on application: s 20BY(2).

A program probation order is made without passing sentence on the person. No other sentence may be imposed on the offender in relation to the same offence. [3]

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Conditions of the Program Probation Order

A program probation order is subject to the condition that the person will be subject to the supervision of, and obey all reasonable directions given by, a probation officer for a specified period not exceeding 2 years: s 20BY(2).

A program probation order is subject to the condition that the person will be of good behaviour for a specified period, not exceeding 5 years: s 20BY(2).

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Breach and Enforcement of Program Probation Order

Under s 20BY(2) the provisions for breach and enforcement of 'psychiatric probation orders' apply to breach and enforcement of 'program probation orders'.

Therefore, procedure to be followed where a magistrate receives information that a person has, without reasonable excuse, failed to comply with a condition of the order is that set out in s 20BW.

Where the court, in which the program probation order was made, is satisfied that a person has, without reasonable excuse, failed to comply with a condition of the order, the court may:

Note: State or Territory law regarding enforcement or recovery of a fine imposed on an offender applies to a pecuniary penalty imposed under s 20BX(1)(a):s 20BY(2) and s 20BX(4). See also s 15A.

In determining what action to take for breach of a program probation order, the court must, in addition to any other matters, take into account:

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Footnotes

[1] Lauritsen v The Queen [2000] WASCA 203, [48]

[2] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 810

[3] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 811

[4] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 813

 

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