I sat in court the other day and listened to a gut wrenching, impassioned plea from a mother for her son. The raw emotion expressed by this woman moved everyone in the courtroom.
This loving mother however was not pleading to the presiding magistrate to not send her son to gaol. This mother who’s love for her son was without question, was pleading to the court for the magistrate to issue a warrant for her son’s arrest.
Her son was just one of many mentally ill persons that come before the criminal courts everyday of the week.
The courts have a number of ways of dealing with mentally ill persons or those suspected of suffering from a mental condition or illness and one such option that I wish to discuss today is that of diverting the defendant from the criminal justice system by way of Section 32 of the Mental Health (Forensic Provisions) Act.
A ‘Section 32′ as it is commonly known is an effective way of dealing with a person who has been categorised as suffering from a mental illness who the court believes it would be in the publics interest not to punish them for their offence, as a healthy person would be punished.
Section 32 applications can be made at anytime during the criminal justice process prior to sentencing. They are usually made orally by the defendant’s legal representative and usually an accompanying medical report from a qualified psychiatrist or psychologist setting out both the condition the defendant is suffering from and a mental health plan for their rehabilitation, is relied upon to support the application.
One of the weaknesses of the Section 32 option is that often defendant’s suffering from a mental illness do not have the financial resources to pay for such a report, and our public health system often does not have the resources to be able to provide such reports for those who cant afford them.
There is no restriction on the type of offence in which an application for a Section 32 may be made. I have in fact made applications for a variety of offences including drink driving, drug offences, serious assaults and shoplifting.
The mental illness need not even have contributed to the offending conduct for a Section 32 application to be made, and the cause of the mental illness that the person is suffering from is not relevant to such an application. Therefore for example those suffering from a mental illness as a result of sustained drug use, are not prevented from making such an application.
What the court has to weigh up in determining whether to deal with the matter by way of Section 32 is the balancing of two public interests.
The first public interest is the purpose of punishment, that being to deter the defendant and others from similar such offending behaviour in the future. The court can look at the defendant’s criminal history if any, and the way the defendant has conducted their lives despite the burden of the mental illness, etc.
Case law however indicates the court’s attitude that people with mental disorders and illnesses are generally not appropriate vehicles for general deterrance.
The second public interest is that of diverting the mentally disordered defendant from our criminal justice system. When determing this public interest the court can examine the personal background of the defendant, are they working, are their family relying on them for income or care, what treatment is available to address the illness that the defendant is suffering from, what is the defendant’s committment to rehabilitation, etc.
If the magistrate determines that it is in the public interest to deal with the matter under Section 32, the court can dismiss the charge unconditionally, but most often will dismiss the charge on condition that the defendant commence or continue their treatment and adhere to their mental health plan.
The court has a default option being that if the mentally ill defendant fails to comply with any condition imposed by the court, within 6 months of the court discharged them under Section 32, the court can recall the defendant and re-sentence them as if they had never been discharged.
Section 32 applications do not cure all the ills ( no pun intended ) of our criminal justice system dealing with defendants suffering from a mental illness where treatment is available, but it is an often effective way of diverting a defendant from a punishment that will only set back their struggle to attain full health again.
I have used it very effectively in the past to obtain in some cases literally life saving results for some clients. Young practitioners should always have it on their mind, when dealing with criminal defendants.