Mark is a Criminal Lawyer practicing in the Northern Rivers of NSW. The area takes in Coffs Harbour, Woolgoolga, Grafton and Maclean.
It was not so long ago that people with mental illness were housed in various facilities around NSW. Some of these facilities were particularly notorious. During the 1980 investigations found people living in squalid conditions. There were also instances of neglect and abuse of mentally ill patients. Some of this abuse extended to being isolated, tied up, and physically and mentally abused. There were extreme cases of rape and murder in some of these notorious “Insane Asylums” patients from Coffs Harbour, Woolgoolga, Grafton and Maclean were exposed to criminal conduct in some of these terrible places. https://www.dailytelegraph.com.au/…asylums…/b4205dc9a17e8ee0763711d93d720d04
In the early days of these institutions the people housed there were referred to as patients. This was validation of the individual having an illness of some kind. An illness that effected their mental state such that they were not able to be included in our society. https://www.news.com.au/…asylum…/a99d3b8d01698777e528e671a0560975
Patients were diagnosed with various mental illnesses. Many patients were not mentally ill at all. Women were interned as patients for simply being upset or moody. Their protestations were often used as further evidence of their obvious insanity. The system was broken. The system was often without any checks or balances. The system was often managed by ill equipped and poorly qualified people.
Over the past few decades state and federal governments moved to close these hideous asylums. There was a move towards proper diagnosis and treatment. There was a move toward keeping people in their own communities. People who are diagnosed with a mental illness are predominantly diagnosed, treated and supported in their own communities. There are a variety of community services available to help support and monitor these clients. Coffs Harbour, Woolgoolga, Grafton and Maclean all have these types of services.
Although this has been a largely beneficial change for clients, families and communities it has presented some unique challenges for the Criminal Law. Unfortunately, people with mental illness are disproportionately represented in the Criminal Law system. The Criminal Law has developed to address some of the specific and unique needs of mentally ill clients.
If you are a client with a mental illness your lawyer can make a special application for you if you are charged with aa Criminal Offence. In NSW this is called a Section 32 Application. This application asks the court to consider treating your offending as being a manifestation of a health-related issue. Your lawyer needs to prove to the court that you have a mental illness which can be treated in the community. This is done by providing the court with a report from an accepted practitioner. Usually this is a psychiatric nurse, psychologist or psychiatrist. Your lawyer will usually arrange for this to happen. If the court accepts that you have a mental illness and that there is a treatment plan that will be supported in the community your lawyer then needs to convince the court that the offence you committed is not so serious as to have to be treated as a criminal offence and that the community would accept it being treated as a health related problem. One of the main considerations is the seriousness of the offence. There are other considerations such as the instances of reoffending and any dangers that may be presented to the community.
If, for example, you were charged with a simple break and enter offence and the facts were as follows:
- You had entered a neighbour’s back shed by breaking the lock on the door
- You were under the belief that your neighbour had borrowed your lawnmower and refused to return it
- You were diagnosed with schizophrenia
- You had failed to take medication for two days as you had no money and your mother who usually supported you was in hospital as she had suffered a slip and fall injury
- You had never been convicted in the past
- You were not a violent person
- You had a part time job
- There was a current report and treatment plan accepted by the court
In these circumstances a s32 application may be allowed by the court and you would not be convicted of any offence.
Unfortunately, the current system has also created a situation where some severely mentally ill people are at large in our community for lack of alternative arrangements. Sometimes it is not until some tragedy occurs that these individuals are appropriately supervised. Murder, sexual assault and other violent and abhorrent crimes have been committed by mentally ill people in our community. There may be a need for a more proactive approach. It is early days yet, but it will be interesting and possibly tragic to see the development in the recent Eurydice Dixon case. There has been a 19-year-old man arrested for her rape and murder. This obviously does not present as normal behaviour. Is he mentally ill? Were there some warning signs? If convicted he will spend a lot of time in prison.