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
Related Links:
Factors
to Consider When Sentencing A Person With a Mental Condition
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:
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.
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:
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).
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:
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]
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:
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:
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).
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 court must not discharge a hospital order unless the court is satisfied that:
In making a decision to discharge a hospital order, the court:
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.
A psychiatric probation order may be made where the court is satisfied that:
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]
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).
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:
Section 20BX relates to the right of appeal for those sentenced to psychiatric probation orders.
Where a court is sentencing a federal offender who is suffering from intellectual disability the court may:
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:
A program probation order may be made where the court is satisfied that:
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]
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).
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:
[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