Credit: Jenn Ackerman

No soft option: Why popular opinion on criminal law defences surrounding mental health is bullshit.

The views expressed in the following article are those of the author alone. This article is not legal advice and should not be taken as such.

Chief among the many things that make me unbelievably angry on a daily basis is the comment sections of crime news stories on Facebook. It’s not just the uninformed cries of “bring back the death penalty” and “our justice system is too soft”, it’s the total and complete ignorance displayed by many of those commenting. Nowhere is aforementioned ignorance more evident than when people describe the criminal defence of ‘mental insanity’ (in laymen’s terms) as being a ‘soft option’. As I will explain throughout the course of this article, this attitude, whilst completely baseless, has still caused huge issues for our criminal justice system as politicians and occasionally even members of the Judiciary bow to misguided public opinion.

“There is clear evidence of over-representation of people with cognitive and mental health impairments at all stages of the criminal justice system”. This is the opening line of the 2012 Law Reform Commission report on mental illness and the justice system, which details in great length the issues which contribute to the abhorrently high level of incarceration of people with mental disabilities. According to the commission, the percentage of citizens living with a common mental health disorder is 20%, with 2.9% of Australians living with a more severe intellectual disability. The Australian prison population has more than double the rate of mental health issues, with 49% of prisoners being diagnosed with a mental disorder. Despite popular opinion, this number does not simply consist of high level offenders in for serious indicatable offences. In fact, contrary to views often expressed by mainstream media and the general population, 55% of low-level local court defendants suffer from one or more psychiatric disorders).

The justice system’s relationship with mental health is a complex web of legislation and tribunals that I simply don’t have the space to fully explain in this article. As such, I will briefly examine only the diversionary provisions under section 32, the law pertaining to an accused person who is unfit to stand trial as set out in part 2 and the indefinite detention of a person found not guilty by way of a defence of mental illness (formally mental insanity) as per section 39.

A section 32 order may be made by a magistrate in regard to a person who is accused of a criminal offence that is not an indictable offence or is an indicatable offence that is to be heard summarily; in other words, it applies only to the local court jurisdiction. Section 32’s purpose is to divert those who are currently suffering from a mental condition away from the criminal justice system and often into a suitable treatment program such as the CREDIT (Court Referral of Eligible Defendants into Treatment) program. It should be noted that a distinction is made between defendants suffering a mental condition and those suffering from mental illness, with those suffering from the latter being ineligible for a section 32 under section 32(1)(a)(ii). There are other avenues available to those with long term mental illness, but these don’t provide the same level of diversion as section 32, leaving people with long term mental illness susceptible to significantly greater terms of imprisonment.

The unavailability of section 32 to those suffering from long term mental illness is not the section’s only drawback; according to a report by the NSW Law Reform Commission, section 32 is used in only 1% of cases and when considering the fact that 55% of local court defendants suffer from a psychiatric disorder, the disparity between these statistics demonstrates that there is a serious issue with the application of the law.

Now if that wasn’t confusing enough, we now need to move to higher courts, such as the District and Supreme jurisdictions. It is in these courts that jury trials are conducted and it is in these trials that one may be found not guilty by way of mental insanity. Before even getting to the trial stage though, a person may be found unfit to stand trial due to mental illness under provisions set out in part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW). This process however is incredibly complex with a number of inquiries, assessments and tribunals having to take place before the accused can be put before a special hearing. The process has been said to limit the potential rehabilitation of the offenders involved as its overly onerous nature causes a great deal of stress, thus resulting in “anti- therapeutic implications”. At the special hearing, while the accused may be found not guilty and completely acquitted, it is far more likely that they will be convicted under section 22(1)(c) and sentenced to a limiting term. A limiting term may, by order of the court following another tribunal hearing, in some cases be served in a ‘forensic mental health facility’, however, the entire term may also be served in a correctional facility where the convict has limited access to mental health treatment. Further, this limiting term (which for all intents and purposes is essentially just a prison sentence) may be extended by the Supreme Court.

Finally, despite the commonly held opinion that being found not guilty by way of a mental illness defence is a ‘soft option’, those found not guilty in this manner are automatically subject to indefinite detention, further adding to the incarceration rate.

Though Australia as a society has progressed a great deal in the last couple of centuries, the general population’s penchant for mob style justice and harsh punishment is still ever present. While we have moved past the days of the gallows and the lash, unfortunately, we do not seem to have moved past our desire for punitive justice. Whenever a story about crime is published on social media, without fail the majority of the comments will be words to the effect of “lock him up and throw away the key!” or “the justice system is too soft in this country”. Sans any substantial knowledge of the evidence presented to the court, regular citizens scream bloody murder and unfortunately all too often politicians, demonstrating their complete lack of intestinal fortitude, cave in to this public pressure.

One such example of putting public outcry above good policy is the recent abolition of the defence of ‘defensive homicide’ in Victoria. Similar in nature to the NSW defence of extreme provocation, this defence was primarily used for cases where battered women killed their abusive partner. Unfortunately, due to public misunderstanding about the defence, in that it was widely believed to be primarily made use of by men who had killed their partner, it was abolished in 2014. Not only is this of concern for women who, due to their circumstances, cannot rely on self-defence in situations where they have finally snapped and killed their abusive partner, but it is also of grave concern for those suffering from a mental impairment as the defence was used in situations where the accused had, by virtue of their mental illness, killed a person in the unreasonable belief that they were acting in self-defence.

In the case of R v Martin the defendant stood accused of the murder of a man whom Martin alleged had tried to rape him. Martin had an IQ of just 59 and exhibited ‘marginal cognitive ability’ which it was accepted by the court may cause “profound deficits in adaptive behaviour”. While this level of mental disability would not have been enough for a defence of mental impairment (mental illness in NSW), they were enough to satisfy the test for defensive homicide resulting in Martin receiving only an eight year sentence, which while still lengthy, is significantly less than what he would have likely received if convicted of murder.

General society’s ignorance of the workings of the Criminal Justice System can have real world, detrimental effects for our must vulnerable citizens; we owe it to these people and each other to not toss around ignorant phrases such as “soft option” because it only serves to increase the prison population and further oppress already marginalised groups.