- Relevant legislation and regulations
- Common mental impairments
- The Duty Solicitor's role with defendants who have a mental impairment or illness
- Legal issues confronting the Duty Solicitor
- Mental incompetence and mental unfitness to stand trial
- Assisting unrepresented defendants
- Bail applications
- Sentencing considerations and submissions
- Commonwealth offences
The duty solicitor provides legal advice, assistance and representation to defendants who face disadvantage in court due to many factors. Unfortunately, people suffering mental illness often come into conflict with the law and a high proportion of those defendants will need the duty solicitor's assistance at an early stage of proceedings. This chapter provides an outline of the duty solicitor's role when dealing with people suffering mental illness and the legal implications for such defendants.
Further detailed information relating the role of the duty solicitor, bail applications, guilty pleas and sentencing can be found in the following chapters: Role of the Duty Solicitor, Bail, Guilty Pleas and Sentencing. Information relating to section 269 court listings, the Magistrates Court Diversion Program and the Treatment Intervention Court is contained in the Specialist Courts chapter. Specific information relating to young offenders is located in the Youth Court chapter.
There are a number of Acts governing criminal law practice, procedure and sentencing principles with which the duty solicitor needs to be familiar in order to effectively assist and represent defendants who have a mental illness or impairment. These include:
South Australian offences:
The duty solicitor also needs to be aware of the provisions in the Mental Health Act 2009 (SA) which provide for voluntary and involuntary detention and treatment orders, as well as community treatment orders and treatment and care plans.
The duty solicitor may also encounter defendants who are affected by the provisions in the Guardianship and Administration Act 1993 (SA) which provides for the guardianship of people who are unable to look after their own health, safety and welfare.
Some of the mental impairments most commonly presented to the duty solicitor are:
- clinical psychiatric illnesses, such as schizophrenia, bipolar disorder (manic depression) anxiety and panic disorders, and depressive disorders;
- drug-induced psychosis associated with substance abuse;
- chronic alcoholism and related brain injury;
- intellectual disability;
- personality and conduct disorders;
- brain injury (congenital or trauma-related, including brain injury due to injury or to long-term alcohol or substance abuse);
- co-morbidity where there are drug and/or alcohol dependence and mental health problems;
- complex combinations of any of the above.
The role of the duty solicitor is not that of a social worker or a specialist psychiatrist. The duty solicitor’s job is to assist with the legal problem and to act on a defendant’s instructions if he or she is fit to instruct.
|LIMITATIONS ON THE ROLE OF THE DUTY SOLICITOR|
A defendant may or may not have insight into his or her mental impairment or illness, and may or may not be compliant with recommended medication, therapy and counselling. While the duty solicitor needs to be aware of any current treatment regime that the defendant is following and its effectiveness, the duty solicitor should not give any assurance to the Court on the defendant’s behalf about the defendant’s past or future compliance with treatment if that assurance is not consistent with the scope of his or her instructions.
There may be occasions when it is helpful to be aware of current mental health support systems available in South Australia . SA Health offers a range of public mental health services for adults, children and adolescents, and older persons. SA Health’s Mental Health Triage Service provides a 24 hour, 7 day a week service for adults with serious mental illness (telephone 13 14 65). It may also be helpful to be familiar with non-government organisations which provide services and support in the mental health sector [see the SA Health website for a list of mental health services and contact details]. However, it is not the duty solicitor’s role to be the first point of contact in referring the defendant to support services - that is the role of the social worker.
In practice it would be extremely rare for a duty solicitor to be requesting confidential information from a defendantâs treating psychiatrist. Where such information is considered necessary in a defendantâs interest, it is an indication that the matter is complex enough and serious enough to need an adjournment for a senior practitioner to represent that person. However, if such a request is necessary, some important considerations of confidentiality are set out below.
Should the duty solicitor need to make submissions as to a defendant’s mental illness or impairment, they must have the defendant’s signed Medical Authority when a request for details of past or current medical or psychiatric diagnosis and treatment is made. That Authority should be forwarded to the doctor when requesting the information.
When making submissions to the Court, the duty solicitor should not disclose information thus obtained without the defendant’s clear knowledge and instructions. The defendant should read or have read to him or her any bail assessment report or psychiatric report (whether ordered by the Court or requested by the duty solicitor), and the duty solicitor should seek instructions as to any disputed aspects of such reports.
|LIMITATIONS ON THE ROLE OF THE DUTY SOLICITOR|
Where the defendant’s support systems appear not to be working effectively, and if the defendant so instructs, a duty solicitor may submit to the Court alternatives which might be put in place to help the defendant answer bail or avoid re-offending.
The duty solicitor should not of their own initiative propose bail or bond conditions which may simply set up the defendant to fail.
If a defendant disputes any aspect of a report sought independently by a duty solicitor, it should not be tendered to the Court. It may be possible to discuss the contentious issue with the author and ask whether the disputed section may be deleted, provided that such deletion would not distort the conclusions that the author has formed.
Where the report has been ordered by the Court, the duty solicitor has no control over whether or not it is tendered. If there are contentious issues in a court-ordered report, the duty solicitor should put the defendant’s instructions as to those disputed issues, or ask for the report’s author be called to the Court for cross-examination.
|DO NOT ASK THE COURT TO ORDER A REPORT WITHOUT THE CLIENT’S INSTRUCTIONS|
|If the duty solicitor is not satisfied that the defendant’s instructions proceed from an aware mind, they cannot consider themselves to be acting in the professional solicitor/client relationship, because they effectively have no instructions on which to act.|
Where the duty solicitor is not satisfied that the solicitor/client relationship exists, they must not take the step of asking the Court to order a psychiatric report. The recommendations of such a report may not be what the defendant wants, however practical they may seem. The Magistrate may order a report of the Court’s own motion, but it is not the duty solicitor's place to seek one without clear instructions from the defendant to do so.
The duty solicitor needs to recognise the possibility that a defendant who has a mental illness or impairment:
- may have been mentally incompetent to commit the offence at the time of the offence; or
- may be mentally unfit to plead or to instruct at the time of interview; or
- both of the above; or
- may be neither of the above, but still in need of a detailed psychiatric assessment in order to put before the Court any extenuating circumstances of diminished culpability relevant to sentence on a plea of guilty.
Factors likely to alert the duty solicitor to the possibility of any of these situations include:
- any bizarre component in the allegations;
- a defendant’s own presentation at interview and apparent inability to give coherent, reality-based instructions;
- a defendant’s own reference to a history of psychiatric treatment;
- mental health support workers accompanying the defendant to the Court.
|LIMITATIONS ON THE ROLE OF THE DUTY SOLICITOR|
|Where the duty solciitor is in any doubt at all about the defendant’s fitness to plead, or his or her mental competence to commit the offence, they should not advise or assist the defendant to enter a plea of guilty, however minor the offence.|
Questions of mental incompetence and unfitness to plead or stand trial are complex, and rely on the assessment of experts in the relevant area of expertise. Where the issue of mental impairment does arise, the consequences of a finding that a defendant was mentally incompetent or is mentally unfit to plead or stand trial are serious, and may include the defendant's detention and treatment in secure psychiatric care, or a lengthy period of conditional release on licence. Hence these are areas for senior legal advice.
It may even be that after discussion with and advice from a senior practitioner about the consequences of a successful defence, a defendant may prefer not to raise that defence.
It is important to note that the judicial officer or the prosecutor may choose to raise this issue independently of the defendant, but this is a matter for detailed legal advice beyond the scope of the role of the duty solicitor.
The duty solicitor’s role where mental illness may have legal implications is primarily to be aware of the potential for a defence under s 269 of the Criminal Law Consolidation Act 1935 and to assist the defendant to obtain legal representation.
|URGENT REFERRAL FOR SENIOR LEGAL REPRESENTATION|
|The duty solicitor does not participate in pre-trial procedures where the issue of mental incompetence or unfitness arises. The duty solicitor’s role in these cases is limited to anticipating the possibility of this issue arising and referring the defendant for more senior legal representation, not intervening at an early stage to the defendant’s prejudice.|
The Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA) amended this area of the law substantially. The amendments:
- limit cases where self-induced intoxication has resulted in mental incompetence;
- provide for matters to be dealt with through fewer reports;
- aim to ensure the paramount consideration for release on licence is the safety of the community; and
- provid for more options for the dispensation of summary and minor indictable matters.
These are cases where a defendant may have been mentally incompetent to commit the offence as charged as a result of mental impairment.
There is a presumption at law that a defendant is mentally competent to commit the offence charged, and if the defence seeks to rebut that presumption, the onus of proof is on the defence, on the balance of probabilities [Criminal Law Consolidation Act 1935 s 269D].
The relevant time is the time of the commission of the offence. If the defendant is charged with an offence that occurred some time ago, at which time they were mentally ill but have since undergone treatment, they may present quite lucidly to the duty solicitor, but may nonetheless be able to pursue a defence of mental incompetence.
As the role of the duty solicitor is limited to referral to more senior legal representation where the question of mental competence has arisen, the following information is only included for the sake of completeness.
Section 269C of the Criminal Law Consolidation Act 1935(SA) provides that a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person was suffering a mental impairment and in consequence of that mental impairment the defendant:
- did not know the nature and quality of the conduct [see s 269C(1)(a)]; or
- could not reason about whether the conduct was wrong [see s 269C(1)(b)]; or
- was totally unable to control the conduct [see s 269C(1)(c)].
Sub-section 269C(2) provides that where the trial judge finds, on the balance of probabilities, that the mental impairment at the time of the conduct was substantially caused by self-induced intoxication, the defendant may not be dealt under part 8A, but under part 8 relating to intoxication. Self-induced intoxication includes that resulting from recreational drug use or the combined effect of therapeutic and recreational drug use [ss 269A(2a) and (2b)]. However, sub-section 269C(3) does allow for the court to make an order that a person with a mental impairment caused substantially by self-induced intoxication still be dealt with under the mental impairment provisions of Part 8A of the Act. Such an order would be made when it is in the interests of justice to do so, and after considering whether making such an order would affect public confidence in the administration of justice [see s 269C(3)].
Section 269A of the Act defines “mental impairment” as including a mental illness, an intellectual disability, or a disability or impairment of the mind resulting from senility [see s 269A(1) for definition]. “Mental illness” means a pathological infirmity of the mind (including a temporary condition of short duration) [see s 269A(1) for definition]. In South Australia, a personality disorder is not recognized as a “mental impairment” or "mental illness".
In summary, where the requisite condition exists (that condition being mental impairment) the question raised is whether as a result of that condition at the time of the offence the defendant did not know the nature and quality of the conduct, could not reason about whether the conduct was wrong, or was totally unable to control the conduct. This is a question of fact ultimately decided at trial by the finder of fact (Magistrate, jury or Judge alone).
The Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA) amended this area of the law substantially. Since 27 November 2017, the consequences of a finding of mental incompetence depends somewhat on whether the defendant is charged with summary and minor indictable offences or major indictable offences. The former, less serious offences can now be dealt with under Division 3A, which provides more options for the dispensation of the matter. In either case, the paramount consideration must now be the safety of the community.
In determining whether to release a defendant, either unconditionally or on a licence, the paramount consideration must be to protect the safety of the community [sections 269NA and 269NI].
Summary and minor indictable matters
- dismissal of the charge and unconditional release of the defendant;
- declaration that the defendant is liable to a supervision order under Division 4 (which includes release on licence or detention);
- a Division 3A order releasing the defendant on licence in the community for a specified period of up to 5 years on strict conditions;
- adjourn the proceedings;
- remand the defendant on bail;
- make any other order that the court thinks fit.
Under section 269P the defendant can apply to the Court at any time during the term of the Division 3A order for a variation of the order.
Major indictable matters
The possible consequences of a finding of mental incompetence for major indictable offences are [Criminal Law Consolidation Act 1935 (SA) Division 4, s 269O]:
- unconditional release of the defendant [see s 269O(1)(a)]; or
- a supervision order releasing the defendant on licence in the community for a specified term on strict conditions [see s 269O(1)(b)(ii)]. Under section 269P the defendant can apply to the Court at any time during the term of the supervision order for subsequent variation of the conditions of licence; or
- a supervision order committing the defendant to detention for a specified term [see s 269O(1)(b)(i)]. Under section 269P the defendant can apply to the Court at any time during the term of the supervision order for release from detention on conditions of licence.
In the case of major indictable offences, the Court can only make a supervision order releasing the defendant on conditions of licence once it has obtained at least 1 expert report [see s 269T(2)(a)] and considered the most recently prepared report submitted by the Minister as to the defendant's mental condition, diagnosis, prognosis and treatment plan [see s 269Q and s 269T(b)] and the report on the attitudes of the victim and next of kin [see s 269R and s 269T(2)(c)]. However, where only summary or minor indictable offences are before the Court, it may proceed without ordering an expert report [see Subdivision 3A].
If a defendant who has been released on licence breaches any of the conditions of licence, prosecution can apply to the Court for review of the supervision order under sections 269NDA or 269U of the Act. Having reviewed the circumstances of the breach, including any new reports, the Court has discretion to revoke the order for release on licence and to substitute for it an order committing the defendant to detention, or to vary the existing conditions of licence, or to simply confirm the existing conditions if no variation is necessary.
Where the Court makes a supervision order (as distinct from an order for unconditional release) the specified term (“limiting term”) must not exceed the term of imprisonment that the Court would have imposed if the defendant had been found guilty and sentenced to imprisonment (suspended or to be served) [see s 269O(2)].
There is a presumption at law that a person is mentally fit to stand trial, and if the defence seeks to rebut that presumption, the onus of proof is on the defence on the balance of probabilities [see Criminal Law Consolidation Act 1935 (SA) s 269I].
The relevant time for determination of whether the defendant is mentally unfit to stand trial is the present. It is concerned with the defendant’s mental state at the time of trial rather than (as is the case with mental incompetence) at the time the offence was committed. A defendant may have been mentally competent at the time the offence was committed, but have since become mentally unfit to stand trial. It is not unusual for an expert to be of the opinion that the defendant was mentally incompetent at the time of the offence and is also mentally unfit to stand trial at the time of trial.
The issue of whether a defendant is fit to stand trial does not arise until the time of trial itself and is therefore not the domain of the duty solicitor. However, the following information is provided for completeness.
Section 269H of the he Criminal Law Consolidation Act 1935 (SA) provides that a person is mentally unfit to stand trial on a charge for an offence if the person’s mental processes are so disordered or impaired that the person is:
- unable to understand, or respond rationally, to the charge or the allegations [see s 269H(a)]; or
- unable to exercise (or to give rational instructions relating to) procedural rights [see s 269H(b)]; or
- unable to understand the nature of the proceedings, or to follow the evidence, or the course of proceedings [see s 269H(c)].
Fitness to stand trial raises the questions of whether a defendant can understand:
- the charge brought against them;
- the general nature of court proceedings;
- the nature and effect of the evidence brought by prosecution; or
- whether thay are able to instruct counsel as to their answer(s) to the evidence.
A defendant need not understand all of the legal formalities, but must be able to follow what is happening in court.
Note that the cause of mental unfitness is not restricted to mental illness, as is the case with mental incompetence. As well as cognitive or intellectual impairments, the cause may be a physical one (eg a deaf and dumb defendant who cannot communicate in sign language and cannot be taught to do so; or a person suffering a physical illness, where the pain itself, or the pain-relieving medication required to control it, so affect the person’s mental processes that the person is unable to meaningfully follow and understand the trial proceedings).
The possible consequences of a finding of unfitness to stand trial are the same as to those relating to mental incompetence to commit the offence, see above.
Where there is expert evidence that a defendant is unfit to stand trial, the Court may adjourn proceedings for up to 12 months if the expert is of the opinion that there is a reasonable possibility that the defendant will regain the necessary capacity within that time. This can be an unfortunate provision from the point of view of the defendant, because if there is no suitable accommodation and mental health support available, he or she may remain in custody during that time. Moreover, that custody may be in the Yatala Labour Prison, the Adelaide Women's Prison or the Adelaide Remand Centre, due to the chronic lack of beds at James Nash House.
Nonetheless, there is provision under s 269X as well as under the Bail Act 1985 (SA), for bail to be granted during the period of the adjournment where there are sufficient community resources and accommodation available to a defendant.
Where a defendant who may be mentally incompetent or mentally unfit has no prospect of being released on bail, the duty solicitor should ask the Court to make an order pursuant to s 269X(1)(b), which provides that a defendant is to be committed to an appropriate form of custody but not a prison unless the Court is satisfied there is no practicable alternative.
As with defendants who are subject to a supervision order on the grounds of mental incompetence, mentally unfit defendants who are either committed to detention or released on conditions of licence can apply to the Court at any time during the limiting term to vary the conditions of licence [see s 269P], and prosecution can apply to the Court at any time for review of the supervision order under s 269U where there are allegations that the defendant has breached, or is at risk of breaching, any condition of the licence.
|URGENT REFERRAL FOR SENIOR LEGAL REPRESENTATION|
|The duty solicitor should be aware that a defendant may be unfit to plead and, if they do have such concerns, they should urgently refer the person to a senior legal practitioner. It is not the duty solicitor’s role to raise the issue of mental fitness in Court or to request that a report be ordered for the purpose of a fitness assessment. This is up to a more senior practitioner at a later stage or, if it so wishes, the Court may order such a report of its own motion.|
One aspect of fitness to stand trial is fitness to instruct. The question of whether a person is fit to instruct rationally may arise for the duty solicitor, particularly in relation to persons in custody. Defendants who have managed to attend the Court themselves at the appropriate time may be reasonably cognisant of their circumstances, but people arrested and brought to the Court from custody may be in a disturbed condition due to the stress of incarceration and may, at least temporarily, lack competence to instruct. For further information see Role of Duty Solicitor chapter.
|DO NOT REPRESENT A DEFENDANT WHO IS UNABLE TO INSTRUCT|
|Where the duty solicitor is not satisfied as to a person’s fitness to instruct rationally, then no solicitor/client relationship exists. The duty solicitor should not act beyond indicating to the Court that they are unable to obtain instructions.|
A defendant with a mental illness or impairment may attend unrepresented in the duty solicitor’s office with little or no idea of the charges, or the particulars of the allegations. Such defendants may be aggressive, withdrawn, incoherent and irrational. The urgent priority in these cases is to help arrange for legal representation in a way that they can realistically follow through. Many simple cases are repeatedly adjourned, or warrants issued, merely because the defendant with a mental illness or impairment cannot get through the initial stages of applying for legal representation. A duty solicitor can help a person apply for legal aid by completing an application form while they are present; explaining the procedure and time-frames for approval of legal aid applications, and asking to see their Centrelink Health Care card as proof of income and noting this on the legal aid application form.
|ASSISTING WITH LEGAL AID APPLICATIONS|
|In cases where it is unlikely that a defendant is capable of lodging the application in person, the duty solicitor can assist by lodging it on their behalf, marked “Urgent”, with an accompanying memorandum explaining the details of the defendant's disability, and indicating that it may be appropriate for full financial details of means and assets to be assessed at a later stage once contact has been made with an assigned solicitor.|
A defendant with a mental illness or impairment may attend unrepresented in the duty solicitor’s office accompanied by a case or social worker, or a relative. This situation needs firm and tactful handling where the support person, with good intentions, wants to usurp the client’s role in instructing the duty solicitor. For example, the support person may insist that it is in the person’s best interests to get the matter dealt with immediately by way of a guilty plea, or that it is ‘important that the person learns that they mustn’t do this …’ and so forth.
Information gleaned from support persons may be more coherent than that from the defendant with a mental illness or impairment, and may be valuable later once it is decided whether the matter should proceed by way of guilty plea. However, the support person’s opinion as to the appropriate legal course for the defendant to take should be politely but firmly disregarded. Further, if information supplied to the duty solicitor by the support person is denied by the defendant, the duty solicitor cannot use that information, because the defendant, who the duty solicitor is representing, has instructed to the contrary.
|NEVER EXCEED THE AMBIT OF INSTRUCTIONS|
|The duty solicitor may only take instructions from the actual defendant and must never exceed the ambit of those instructions.|
Most often the duty solicitor will need to assist defendants with a mental illness or impairment who are in custody on a fresh arrest and following refusal of police bail. In these cases the Form 2 reasons for refusal of bail will frequently include:
- the seriousness of the offence;
- an assertion that the defendant is itinerant and has no fixed place of abode;
- an assertion that the defendant is non-compliant with medication and therefore at risk of re-offending;
- an assertion that the defendant has no community ties such as family or social support networks.
An application for bail and clear advice as to how to apply for legal representation will be the duty solicitor’s first priority. Where the defendant is granted bail it will save time later if the duty solicitor can persuade the defendant to apply immediately for a solicitor to act.
The Court has no power to grant bail with a condition that a person reside voluntarily or involuntarily at a psychiatric care institution, such as Glenside Campus or the psychiatric wards of any of the major public hospitals.
Therefore, where the client wishes to be admitted voluntarily into a psychiatric care institution, the application for bail may include a proposal that the client is willing to reside where directed by an officer from the Department for Correctional Services, initially to be at Glenside Campus. If bail is granted with that condition it becomes the responsibility of the Correctional Services officer to approve a new residential address if the person is discharged from hospital prior to the next return date.
Note, however, that this situation will rarely arise. Voluntary admission to the public psychiatric hospital wards is chronically restricted by a shortage of beds and the duty solicitor should not give any assurance to the Court on the client’s behalf that the defendant will be admitted on a voluntary basis unless the hospital itself has provided written confirmation.
Where there is already in effect an order that a defendant be involuntarily treated under the Mental Health Act 2009 (SA), it may be useful to submit to the Court (if the defendant instructs that he or she wishes the duty solicitor to do so) that the practical effect of a grant of bail would be that the defendant would be under appropriate care in an approved treatment centre until fit to be discharged, rather than in the community. This submission may address the Court’s concerns as to the safety of the defendant as well as that of the community, and may give the Court some assurance as to where the defendant will be.
Under part 5 of the Mental Health Act 2009 (SA), a medical practitioner or authorised health professional can make orders for the treatment of mentally ill persons as inpatients at a treatment centre. The following information relates to these involuntary treatment orders.
Under section 21 of the Mental Health Act 2009 (SA) an initial order (level one inpatient treatment order (‘ITO’)) for treatment at an approved treatment centre can only last a maximum of seven days after the day on which it was made if the person:
- has a mental illness which requires immediate treatment; and
- should be admitted and detained in the interest of his/her health and safety or for the protection of other people;
- the person has impaired decision-making relating to their treatment; and
- there is no less restrictive means to ensure appropriate treatment.
The person must be examined by a different psychiatrist as soon as practicable within 24 hours of the making of a level 1 ITO or as soon after that as is possible and that psychiatrist must either confirm or revoke the original order.
Under section 25 of the Mental Health Act 2009 (SA) a psychiatrist can make a level two inpatient treatment order at the expiry of the seven day level one order. A level two ITO allows for further treatment of the person of up to a maximum of 42 days after the day on which the level two order is made. The criteria for the making of a level two ITO are the same as for a level one ITO.
The South Australian Civil and Administrative Tribunal (SACAT) may make a level three inpatient treatment order where satisfied:
- that the person suffers a mental illness, and
- because of the mental illness the person requires treatment for their own protection from harm (including harm from the continuation or deterioration of the condition) or for the protection of others from harm, and
- the person has impaired decision-making capacity relating to their treatment, and
- there is no less restrictive means to ensure appropriate treatment [see Mental Health Act 2009 (SA) s 29(1)].
A level three inpatient treatment order can only last a maximum of six calendar months after the day on which it was made (in the case of a child), and 12 calendar months after the day on which it was made (in the case of an adult) [see s 29(5)]. The Tribunal may, on application, by order, vary or revoke a level three inpatient treatment order at any time [see s 29(6)].
In summary, a combined level one and level two inpatient treatment order, would provide a maximum of forty nine days inpatient treatment under the Mental Health Act 2009 (SA). These orders can be revoked by the psychiatrist or medical practitioner at any time where it is judged to be no longer necessary. In the case of a level three inpatient treatment order placed upon an adult, there is a maximum of 12 months detention, however, this can be revoked at any time by the South Australian Civil and Administrative Tribunal. In view of the uncertain length and conditions of a Mental Health Act 2009 (SA) inpatient treatment order, some Magistrates may be reluctant to grant bail without alternative conditions of accountability, such as additional supervision by staff of the Department for Correctional Services.
A bail assessment report may be requested on behalf of a defendant to address issues such as suitable accommodation, availability of community support systems, the defendantâs previous response to supervision, and the likelihood of compliance with prescribed medication or even the feasibility of home detention bail. However, as discussed earlier, such a report may disclose unfavourable information, and it is therefore important that before requesting such a report the duty solicitor obtains thorough instructions from the client.
The duty solicitor will often deal with instances where a defendant with a mental illness or impairment is in custody following arrest on a first instance warrant. Magistrates are usually reluctant to remand a defendant with a mental illness or impairment in custody in view of their vulnerability when incarcerated, unless there is a risk to the community or the offence is grave. However, due to their condition, a person with a mental illness or impairment will often fail to answer bail when it is granted and eventually a warrant will issue. By the time a defendant with a mental illness or impairment has been arrested and brought to court on a first instance warrant, the offence itself may be distant in time, and the defendant may have forgotten it, and done nothing to gain legal representation in the interim.
In this circumstance a Magistrate may intimate that a further grant of bail is out of the question.
|URGENT IN CUSTODY LEGAL AID APPLICATIONS|
|Where a Magistrate intimates that a defendant may be facing a remand in custody while matters are “sorted out”, the priority for the duty solicitor is to help the defendant with an application for legal aid marked “Urgent-In-Custody” and lodged with the relevant Commission office.|
The comments above about the duty of confidentiality refer equally to expert reports sought for the purpose of tender in submissions on sentence. If an independently-requested report is unfavourable or is disputed by the defendant, defence counsel can refrain from tendering the report, although they must not mislead the Court by misrepresenting its contents. If the report has been ordered by the Court itself, the duty solicitor will need to confront the disputed aspects as instructed.
Leniency in sentencing may be appropriate in a case where a person suffers a illness or mental impairment. Any such illness or impairment should be explained to the Court in submissions on a plea of guilty. Where there is some causal connection between the mental illness or impairment and the commission of the offence, the degree of moral culpability may be diminished, such as where the person has a low level of intellectual functioning beyond the person’s control [see Paparone v The Queen (2000) 112 A Crim R 190;  WASCA 127 for causal connection; R v Verdins (2007) 169 A Crim R 581; VSCA 102 for effect of psychiatric illness on sentencing].
The principle of rehabilitation is given considerable weight in such cases and the duty solicitor should put to the court details of any treatment, counselling, or beneficial change in medication which has occurred since the date of the offence [see Mason-Stuart v R (1993) 61 SASR 204;  SASC 4322].
General deterrence as a sentencing principle may have little or no relevance in determining the sentence where the defendant suffers a mental illness or impairment [see Mason-Stuart v R (1993) 61 SASR 204;  SASC 4322; R v Scognamiglio (1991) 56 A Crim R 81]. The rationale is that it would contribute little to the deterrence of the general public by making an example of a defendant suffering from a mental illness or impairment.
However, where the Court is asked to sentence a defendant as a person of diminished responsibility due to mental impairment, the Court will scrutinize the degree of causal connection between the mental illness or impairment and the criminal conduct itself - the defendant’s understanding of the criminality of the conduct. In cases where the Court is not persuaded that the illness had a significant degree of contributing impact on the defendant’s conduct, the Court will normally give the usual weight to general deterrence (see R v Wiskich (2000) 207 LSJS 431;  SASC 64).
Personal deterrence is a relevant sentencing principle, and the Court may consider that a defendant has forfeited a claim to leniency by persistent offending. In some cases the court may feel that a term of imprisonment may in itself have a rehabilitative effect on a person suffering a mental illness [see R v Ciccone (1974) 7 SASR 110]. Defendants with mental health problems often have significant prior histories of similar offending. For this reason the duty solicitor should always approach a guilty plea for such defendants with great caution because a term of imprisonment will always be a potential outcome for reasons of personal deterrence. Where recommended treatment has been disregarded by a defendant in the past, or is unlikely to be successful, the Court may give particular weight to the principle of personal deterrence, and consider it appropriate to impose a sentence of imprisonment [see Webber v Creek (1975) 10 SASR 378].
A court cannot impose “preventative detention” or impose an excessive term of imprisonment merely because a defendant would be a danger to society if they remained in the community [see Veen v R (1979) 143 CLR 458 ;  HCA 7].
Imprisonment should not be imposed as a cure for alcoholism [see Gollan v Samuels (1973) 6 SASR 452]. Where an addiction to gambling has led to dishonesty offending to feed a habit, it is generally viewed as a form of mental impairment which may warrant leniency where the defendant has taken steps towards rehabilitation by participating in counselling and/or by making compensation to the victim. However, in SA Police v John (1995) 181 LSJS 20, where the offending was aggravated by a breach of trust, the mental illness or impairment was not accepted as excusing the offence. Gambling is not accepted as a mental illness per se as yet, and so is considered to have little mitigatory effect upon the sentence [see R v Do (2007) 180 A Crim R 338;  VSCA 308; R v Huynh (2008) 180 A Crim R 517;  NSWCCA 16; R v Grossi (2008) 183 A Crim R 15;  VSCA 51; Thai v DPP (No 3)  SASC 97 - gambling may be considered a mitigating factor where combined with a psychological condition].
The duty solicitor does not act in these matters beyond seeking an adjournment or remand or applying for bail, given the complex nature of Commonwealth offences and sentencing provisions. For reference only, the relevant legislative provisions affecting mental health issues are as follows:
A person who is charged before a court of summary jurisdiction with Commonwealth offences and who is suffering from a mental illness or impairment at the time the matter comes before the Court for determination may be dealt with under section 20QB of the Crimes Act 1914 (Cth). For example, the Court has power to dismiss the charge and discharge the person if it considers this would be more appropriate than dealing with a defendant otherwise according to law [see s 20BQ].
In more serious summary court matters where the Court is not persuaded that it is appropriate for the defendant to be dealt with under s 20BQ of the Crimes Act 1914 (Cth), questions of mental competence to commit the offence and mental fitness to stand trial are first determined under the relevant provisions of state legislation (Criminal Law Consolidation Act 1935 pt 8A - see above) and, where the defendant is found to be mentally incompetent or mentally unfit, subsequent orders for disposition come under the relevant Commonwealth provisions [see Crimes Act 1914 (Cth) ss 20BS-20Y].
Sectyion 7.3 of the Criminal Code Act 1995 (Cth) also sets out the Commonwealth provisions regarding the defence of mental impairment. These are very similar to the provisions of part 8A of the Criminal Law Consolidation Act 1935. The significant differences are that:
- under the Criminal Code Act 1995 (Cth), the prosecution can only raise the issue of mental impairment if the Court gives leave; and
- under the Criminal Code Act 1995 (Cth) “mental impairment” is defined to include “senility, intellectual disability, mental illness, brain damage and severe personality disorder”.
Unfitness to be tried [see Crimes Act 1914 (Cth) ss 20B - 20BH]
Acquittal because of mental illness [see ss 20BJ - 20BP for procedure on indictment]
Sentencing alternatives [see Crimes Act 1914 (Cth) ss 20BS - 20BY]