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All about Section 32

Mental Health (Criminal Procedure) Act 1900 (As Amended)

Paper delivered at ALS State Conference August 2007 by Robert Tumeth Solicitor Aboriginal Legal Service (NSW/ACT) Ltd
c/o PO Box 646 Surry Hills NSW 2010 Phone: 1800 765 767 Email: info@alsnswact.org.au Web: www.alsnswact.org.au

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

What is the purpose of Section 32 ? In the second reading speech of a Bill introducing amendments to the Mental Health (Criminal Procedure) Act the Honourable Tony Kelly in the NSW Legislative Assembly said on 29 November 2005:The purpose of Section32 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. Section 32 has been described by the courts as a diversionary measure, or diversionary purpose. 1 It does not mean a defendant is not exposed to punishment. An order under Section 32(3) is not custodial in the strict sense. However, it may involve the imposition of conditions restricting a discharged defendants freedom of movement and actions.2

To what offences does Section 32 apply? Part 3 of the legislation applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a magistrate, and includes any related proceedings under the Bail Act 1978 but does not apply to committal proceedings.3 Note:Section 32 also does not apply to persons charged with having committed a federal offence. (See Section 20BQ Commonwealth Crimes Act 1914 where person suffering from a mental illness of intellectual disability before a court of summary jurisdiction).

When can a Section 32 Application be made? An application can be made at the commencement, or at any time during the course of the hearing of proceedings4. In practical terms, the application should be made at the earliest opportunity. An accused person is not limited to the number of applications that can be made. But Note Section 34(2) has been repealed. You may however still apply to have a magistrate disqualify himself/herself from hearing a matter any further after an unsuccessful Section 32 application, where it is appropriate. (eg. actual or perceived bias). It is not necessary for a plea to be entered before a Section 32 application is made.5

1 DPP v El Mawas (2006) 66 NSWLR 92 at [72];Mantell v Molyneux (2006) 165 A Crim R at [39]. 2DPP v El Mawas (2006) 66 NSWLR 92 at [73]. 3 Section 32(1) Mental Health (Criminal Procedure)Act. 4 Section 32(1) Mental Health (Criminal Procedure) Act. 5 Mackie v Hunt (1989) 19 NSWLR at [134]; Perry v Forbes & Anor Supreme Court of NSW, BC 9303694 at [12]; DPP v El Mawas (2006) 66 NSWLR 93 at [63].

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

The magistrate is given powers of an inquisitorial or administrative nature to inform him or herself as the magistrate thinks fit, but not so as to require an accused to incriminate himself/herself.6

What are the benefits for an accused under Section 32? No conviction is recorded against the accused if the charge(s) are dismissed under Section 32(3) of the Act. Furthermore, there is no finding the charge(s) are proved or otherwise. An accused is not dealt with according to law. (thus the provisions of the Criminal Procedure Act 1986 [NSW] & Crimes [Sentencing Procedure] Act 1999 [NSW] have no application).

How do I know if my client falls within the provisions of Section 32? To fall within the provisions of Section 32 an accused must first be:(1) Developmentally disabled, or (2) Suffering from mental illness, or (3) Suffering from a mental condition for which treatment is available in a hospital, but not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990. .at the time the court undertakes its enquiry, or at the time of the alleged commission of the offence to which the proceedings relate.7 The Act does not define what will constitute a developmental disability, mental condition, or mental illness. The court will generally be guided by reports from psychiatrists or psychologists who indicate that your client comes within one of the categories referred to in the section. If your client is fortunate enough to be appearing before a local court to which a clinical nurse from the Court Liaison Service is attached, you will be able to ask the magistrate to refer the accused to the nurse for an assessment under Section 32. Otherwise, you will need to seek an adjournment in order to obtain a report from an appropriately qualified expert. This report may be supported by any hospital records or reports from treating doctors and health workers. Note: It has been held that a brain injury acquired as a result of an accident falls within the definition of mental illness in Section 32.8 Some magistrates have also been prepared to find that Attention- deficit hyperactivity disorder ADHD falls within the scope of Section 32. Some factors which should arouse your suspicion that your client may be a candidate for a Section 32 application are:(a) The police criminal history may disclose previous matters dealt with under Section 32 or 33.

6 Section 36 Mental Health (Criminal Procedure) Act; DPP v El Mawas (2006) 66 NSWLR at [74]. 7 Section 32(1)(a) Mental Health (Criminal Procedure) Act . 8 DPP v El Mawas (2006) 66 NSWLR 93 at [22-23].

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

(b) The client informs you that he is or has suffered from a mental illness for which treatment is being received. (c) The client is in receipt of a Disability Pension and/or has a Carer. (You may find a relative or carer accompanies the client and may disclose information relevant to this issue.) (d) The client cannot read the police fact sheet (which in turn will lead to an enquiry about schooling and any special classes, or that he/she left school at an early age). (e) The client is having difficulty communicating with you or understanding the nature of your enquiry and advice that you give. (f) If the client has a criminal history, the type and frequency of offences recorded. (You may also glean useful information that may be contained in previous Pre Sentence and Background Reports). Having satisfied yourself that your client does or was at the time of the commission of the alleged offence, suffering from a condition that falls within Section 32(1) (a) of the Act, you need to ascertain what effective treatment is available and to what extent it is likely to ensure that there will not be a repetition of the offence in question or some other unfavourable incident.9 This plan will be developed by the proposed treatment providers (eg. Hospital Mental Health in consultation with treating specialist and clinical nurse where the client suffers from a mental illness; in the case of a client with a developmental disability its worth contacting the NSW Department of Aging Disability and Home Care to see if they are already providing assistance. If not, a client can be referred for assessment and if the depts guidelines are met, subject to availability, they should provide help with services such as supported accommodation, counselling, supervision). You will need to be able to present details of the treatment plan to the magistrate as part of your Section 32 application. Many magistrates refer to this as being part of the second limb of a Section 32 application; ie. Section 32 (1)(b). Failure to present a treatment plan will almost certainly lead to the failure of your application. Unfortunately, it is not always a simple or quick process for a detailed treatment plan to be developed. Therefore, if you at least have enough evidence to support the first limb of your application Section 32 (1) (a) you should use it as the basis for an adjournment until the plan is available. In some cases it is worth considering handing up to the magistrate your medical reports in order to obtain a finding on Section 32 (1)(a).

What decisions must a Magistrate make when determining whether or not to proceed under Section 32? The magistrate must make at least three decisions. 10 1. The magistrate has first to decide as a matter of fact whether or not the provisions of Section 32(1) (a) apply. This is a jurisdictional question.11 If the answer is in the negative, the application will be dismissed.
9 Perry v Forbes & Anor Supreme Court of NSW BC9303694 at [16]; DPP v Albon (2000) NSWSC at [24] 10 DPP v El Mawas (2006) 66NSWLR 93 at[75].

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

2. If the finding of fact is in the affirmative, the magistrate will proceed to consider the provisions of Section 32(1) (b). Section 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 would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law. In determining whether it is more appropriate to deal with the matter under Section 32 the magistrate is required to make a discretionary judgement. 12 The magistrate will consider whether it will produce a better outcome both for the individual and the community.13 A magistrate is required to perform a balancing exercise; weighing up, on one hand the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. .what is being balanced is two public interests, to some extent pulling in different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.14 McColl JA in DPP v El Mawas15 also stated the magistrate had to balance the 2 competing public interests but added with the object of ensuring the community is protected from the conduct of such persons. In considering the appropriateness of dealing with a matter pursuant to Section 32 a magistrate will consider the following:(a) The facts alleged in the proceedings. 16 (b) The particular facts of the offence with which a defendant is charged, rather than the type of offence. 17 (c) The seriousness of the offence.18 The more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely it will be appropriate to deal with the defendant in accordance with the Act.19

11 DPP v El Mawas (2006) 66 NSWLR 93 at [75]. 12 DPP v Confos (2004) 1159 at [16]. 13 DPP v El Mawas (2006) 66 NSWLR 93 at [79]. 14 DPP v Confos (2004) NSWSC 1159 at [17]. 15 DPP v El Mawas (2006) 66 NSWLR 93 at [71]. 16 Section 32(1)(b) Mental Health (Criminal) Procedure Act. 17 DPP v Confos (2004) NSWSC 1159 at [21]. 18 DPP v El Mawas (2006) 66 NSWLR 93 at [6]-[7]. 19 DPP v Confos (2004) NSWSC 1159 at [17].

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

The Section 32 diversionary regime is available to serious offenders as long as it is regarded, in the magistrates opinion, as more appropriate than the alternative. 20 So, just because your client may have a string of convictions in the past, this does not make him less eligible for any current matter to be dealt with under Section 32. (d) The relationship, if any, between the alleged offence and the nature of the accuseds mental illness.21 (e) The realistically available sentencing outcomes in the event of conviction for the offence. As Adams J said in Mantell V Molyneux If the magistrate thought it was very likely that a non custodial option would be appropriate, then the balancing exercise would necessarily take that into account.22 (f) The accuseds previous criminal history, and whether that person has previously been dealt with under Section 32. The proposed treatment plan.23

(g)

Sometimes you will find that a magistrate may look at an accuseds criminal history and if it shows that the client has previously been dealt with under Section 32, conclude that as previous treatment plans have failed to prevent the commission of further offences, it would not be appropriate to proceed with the current matter under Section 32 as there is no assurance that further offences will not be committed in the future. In this case, it may be helpful for you look at the present type of offence and see if it can be distinguished from the clients previous offending behaviour .e.g. a current traffic offence compared to a past history of personal violence. You should also look at ways of improving a past treatment plan to further reduce the risk of re-offending. At the end of the day, no treatment plan will provide a guarantee that the accused will not re-offend. However, you need to point out to the magistrate that this is not the test that the court should apply. (h) The effect of any orders that might be made under Section 32(3).24 3. Having decided that it is more appropriate to deal with the accused according to Section 32, which of the actions set out in subsections (2) or (3) should be taken.25 Section 32(2) provides:The magistrate may do any one or more of the following:20 DPP v El Mawas (2006) 66 NSWLR 93 at [79]. 21 DPP v El Mawas (2006) 66 NSWLR 93 at [6]. 22 Mantell V Molyneux (2006) 165 A Crim R at [40]. 23 Perry v Forbes & Anor. Supreme Court of NSW Unreported, 21 May1993, BC 9303694 at 16; DPP v Albon (2000) NSWSC 896. 24 Mantell v Molyneux (2006) 165 A Crim R 83 at[47]. 25 DPP v El Mawas (2006) 66 NSWLR 93 at [79].

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

(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. Section 32(3) provides: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 defendants mental condition or treatment or both, or (c) unconditionally. Where a magistrate makes an order under Section 32(3), and within 6 months of that order it is suspected that the accused has failed to comply with a condition under that sub section, the magistrate may call up the accused to appear and deal with the accused as if he/she had not been discharged.26 Magistrates often refuse an application under Section 32(3) because they consider the short period of control permitted under Subsection (3A) will not achieve the long term results that are required.27 Technically, this is correct.28 However, by using the powers granted under Section 32(2) a magistrate can, once having made the decisions required by Sections 32(1)(a) and 32(1)(b), adjourn the proceedings, grant bail, etc, to see how an accused is coping with the regime proposed in the case plan and once the magistrate is satisfied that the discretion under Section 32(3) should be exercised, do so.29 This can have the effect of extending by a considerable margin the 6 months limit.30 Unfortunately, this possibility was not put to the magistrate. The decision of DPP v El Mawas 31 does not comment upon the use of the interlocutory power conferred upon magistrates by Section 32(2) to extend the 6 month limit under Section 32(3). Therefore, it would seem that the decision of Adams J in Mantell vMolneux is the leading authority on this point and should prove to be of great assistance to the defence.

Does deterrence have a role to play in a Magistrate deciding whether or not to proceed under Section 32 ? You may confront a magistrate who, upon looking at your clients criminal history and seeing a number of previous offences (which may or may not have been dealt with under Section 32) expresses the opinion to the effect that all measures imposed by the court in the past (including
26 Section 32 (3A)-(3D) Mental Health (Criminal Procedure) Act. 27 Mantell V Molyneux (2006) 165 A Crim R 83 at [14]-[15] & [41]. 28 Mantell V Molyneux (2006) 165 A Crim R 83 at [42]. 29 Mantell V Molyneux (2006) 165 A Crim R 83 at [45]. 30 Mantell V Molyneux (2006) 165 A Crim R 83 at [45]. 31 DPP v El Mawas (2006) 66 NSWLR 93.

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

case plans) have failed to prevent the accused from continuing to offend and therefore why should the court proceed now under Section 32. It is worth submitting to the bench that in sentencing persons with a mental disorder, so far as general deterrence is concerned, this consideration may have less weight than would normally be the case and therefore, the need for general deterrence in respect of a certain class of offence may not be a relevant , or particularly significant consideration in determining whether to deal with a particular accused under Section 32.32 In DPP v El Mawas the court cited with approval remarks made in R v Israil33 that the significance of mental illness in an offender in the sentencing exercise has long been accepted. In Israils case Spigelman CJ went on to say: Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it specific deterrence may be more difficult to achieve and is often not worth pursuing as such (Tsiaris, supra, at 400).34 In the case of DPP v Albon35 the magistrates decision to dismiss the charge of malicious wounding under Section 32 after the defendant had spent 10 months in custody, was overturned on appeal. However, it is worth noting that on the issue of the importance of deterrence Her Honour said: in considering all the circumstances even a gaol sentence is not going to prevent this happening again so that is not a deterrence that if something that just isnt going to operate for this particular defendant. His situation really is never going to change and he cannot be detained, as I see it, any longer imprison for punishment or deterrence.

Does Section 32 apply if there is an issue regarding the accuseds unfitness to be tried ? As previously mentioned in this paper, Section 32 is a diversionary measure and that ordinarily, any application to the magistrate to apply the section will generally be made at the outset of the proceedings. A plea need not (and in my view should not) be entered until this application is decided. It is only when the court charges the accused and requires a plea that the question whether the accused is fit to plead needs to be determined.36 The enquiry that a magistrate must make in deciding whether or not to proceed with a matter by way of Section 32 is different to that where the magistrate has to consider an accused persons unfitness for trial in the local court. Part 2 of the Mental Health (Criminal) Procedure Act creates a specific procedure where questions of unfitness to be tried, arise in criminal proceedings in the Supreme and District Courts. In the Local Court there is no statutory enactment either dealing with the determination
32 DPP v Confos (2004) NSWSC 1159 at [20]. 33 R v Israil (2002) NSWCCA 255 at [71]. 34 R v Israil (2002) NSWCCA 255 at [25]. 35 DPP v Albon (2000) NSWSC 896 36 Mantell v Molyneux (2006) 165 A Crim R 83 at [16].

Aboriginal Legal Service (NSW/ACT) Ltd All about Section 32

of the question of fitness to be tried or as to what should occur if a person is found unfit to be tried. However, it has been found that fitness to plead is a concept that derives from the common law.37 In Eastmans case, Gaudron J went on to say: If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or if that issue is not determined in the manner in which the law requires, no proper trial has taken place [and the] trial is a nullity. To put the matter another way, there is a fundamental failure of the trial process. In Mantell v Molyneux38 there was evidence before the Local Court that the accused was unfit to stand trial. The defence sought to have the criminal charges dealt with under Section 32, which the magistrate declined to do. An application for a stay of proceedings was then sought. The magistrate did not consider whether or not the accused was fit to plead. He acknowledged the court had the power to grant a stay, but refused the application upon the basis that a stay would only be granted in rare and exceptional circumstances (see Jago v District Court of NSW & ors. [1989] 168 CLR 23). The magistrate approached the question facing him as being whether he could, by making some adjustments in the way in which the proceedings were undertaken, ensure that the trial was fair. On appeal to the Supreme Court, Adams J found that the magistrate erred in considering that a balancing process was involved in determining whether it would be fair to conduct a trial in the circumstances. He went on to say: If a defendant is not fit to stand trial in the Presser39 sense, the trial is by virtue of that very fact necessarily unfair and the public interest in the trial of the person charged with criminal offences must give way.40 The magistrate was required to make a decision (not exercise his discretion) as to whether or not, on the evidence before him, the accused was unfit to plead. If the finding was that the accused was unfit, a stay of proceedings should have been granted. The Judge upheld the appeal so far as it concerned the magistrates order as to the accuseds fitness to plead, and remitted the matter back to the Local Court for determination of this issue. Dealing with a defendant according to law requires that the question of fitness for trial (assuming the matter is raised) be determined prior to trial. It is not precluded by a refusal to divert under Section 32. Moreover, even where a defendant is unfit to plead, he or she may still be diverted under Section 32.41

37 Eastman v R (2000) 203 CLR 1 at [59]. 38Mantell v Molyneux (2006) 165 A Crim R 83. 39 R v Presser [1958] VR 45. 40 Mantell v Molyneux (2006) 165 A Crim R 83 at [33]. 41 Mantell v Molyneux (2006) 165 A Crim R 83 at [49]; Mackie v Hunt (1989) 19 NSWLR 130.

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