The interaction between persons suffering mental health conditions and the criminal justice system is well documented as being difficult and often requiring what former Chief Justice Gleeson described in R v Engert (1996) 84 A Crim R 67 as a “sensitive discretionary decision”. This section addresses specific provisions found in the Mental Health (Forensic Provisions) Act 1990 (formerly known as the Mental Health (Criminal Procedure) Act 1990). Unless otherwise specified, references to sections below are references to sections of the Mental Health (Forensic Provisions) Act.
For detailed commentary on unfitness and special hearings, see the Criminal Trial Courts Bench Book: Unfitness at [4-300]ff and Procedure for fitness to be tried and mental illness cases at [10-700]ff.
Part 2 of the Act applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and criminal proceedings in the District Court: s 4.
Section 10(4) of the Act provides:
If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.
Where a question of fitness arises, s 10(4) permits the court to dismiss a charge without proceeding to a fitness hearing if it considers it inappropriate to inflict any punishment. Punishment includes the recording of a conviction and the orders of the court after a special hearing: Newman v R (2007) 173 A Crim R 1 at .
The section is expressly directed to the appropriateness of the infliction of punishment: Newman v R at . The court is required to approach an application under s 10(4) on the assumption of a finding of guilt by either of the two courses which can flow from a fitness hearing: a conviction at trial if a person is found to be fit to be tried; or a qualified finding of guilt at a special hearing if a person is found to be unfit. If the court would not impose any punishment, the proceedings should be dismissed without the need for a fitness hearing: Newman v R at . A judgment that punishment would be inappropriate leads to the result that the charge is dismissed: Newman v R at , . The fitness inquiry does not occur. Indeed, the purpose of s 10(4) is to avoid the expense and delays associated with fitness hearings where the court would ultimately not inflict any punishment: Newman v R at .
The basic structure of s 10(4) is the same as s 10 Crimes (Sentencing Procedure) Act 1999. In each case, the ultimate power of the court is to dismiss a charge that has been, or may be, proven. An equivalent test applies of “inappropriate” to inflict any punishment under s 10(4) and “inexpedient” to inflict any punishment under s 10(2) Crimes (Sentencing Procedure) Act 1999. The list of matters to which the court may have regard is also similar, including the nature of the person’s condition and the trivial nature of the charge: Newman v R at .
It was held in Newman v R that the judge correctly applied a test of “inappropriate to inflict any punishment”, reflecting the words of s 10(4), and not a test of “inappropriate to inflict further punishment”: at .
Newman v R was applied in R v Chanthasaeng (2008) 7 DCLR(NSW) 158;  NSWDC 122, a case of supply prohibited drugs, where an application for a s 10(4) order was refused.
Special hearings aim to ensure that an accused person who is found unfit to stand trial is acquitted unless it can be proved that he or she committed the offence charged: s 19(2). For this reason, the accused person is taken to have pleaded not guilty to the offence charged (s 21(3)(a)) and the special hearing is conducted as “nearly as possible” to a regular criminal trial (s 21(1)).
A verdict that the accused committed the offence charged (s 22(1)(c)) is a “qualified finding of guilt” made in the absence of a conviction (s 22(3)(a)). If such a qualified finding of guilt is made, the court must indicate whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment: s 23(1)(a).
If a court indicates that it would not have imposed a sentence of imprisonment, it may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in normal criminal proceedings: s 23(2); Smith v R (2007) 169 A Crim R 265 at . The phrase “any other penalty” includes sentencing options found in the Crimes (Sentencing Procedure) Act 1999: Smith v R at ; but not imprisonment and its alternative forms (home detention, periodic detention and suspended sentences): Warren v R  NSWCCA 176 at –.
Where the court determines that it would have imposed a sentence of imprisonment, the only option is to nominate a limiting term: s 23(1)(b); Warren v R at .
Limiting terms are sentences imposed by Supreme and District Courts at the conclusion of special hearings, the criminal proceedings used when accused persons are found unfit to stand trial: Pt 2 of the Act. Section 23(1)(b) defines a limiting term as:
… the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
A person serving a limiting term is a forensic patient: ss 3, 42.
A limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing: R v Mitchell (1999) 108 A Crim R 85 at . Hence, as the court in R v Mailes (2004) 62 NSWLR 181 at  said, the purpose of a limiting term:
… is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial …
A limiting term is a sentence for the purposes of s 5(1)(c) Criminal Appeal Act 1912 by reason of the definition of “sentence” in s 2 of that Act: R v AN  NSWCCA 239 at . In determining the limiting term for a particular offence, courts should adopt and apply all the statutory and common law principles that apply to the sentencing of a person convicted of that offence: R v AN at . This includes the purposes of sentencing under s 3A Crimes (Sentencing Procedure) Act 1999, ensuring the offender is adequately punished (s 3A(a)): R v Mailes at ; R v AB  NSWCCA 57 at . It should also be borne in mind that the purposes of general deterrence and denunciation under s 3A may also be irrelevant to an offender with a mental illness or disability: R v AB at , . Where the accused is a child, the principles relating to the exercise of criminal jurisdiction in respect of a child contained in s 6 Children (Criminal Proceedings) Act 1987 will be relevant: R v AN at .
Section 23(1)(b) of the Act only requires the nomination of a total term and does not authorise a division of a limiting term into minimum and additional terms: R v Mitchell at ; R v Mailes at  and ; R v AN at .
The only basis for setting a non-parole period is s 44 Crimes (Sentencing Procedure) Act. But s 54(c) of that Act excludes s 44 from applying to the sentencing of an offender to detention under the Act: R v Mailes at , where the court emphasised:
… the “sentence” referred to in s 23 must be a reference to the total sentence and not to the non-parole period … there is no statutory authority in the case of a limiting term for fixing a non-parole or equivalent period at less than the total term.
This statutory scheme is reflected in s 23(6)(a) of the Act, which simply states that a “… sentence of imprisonment imposed in a normal trial may be subject to a non-parole period whereas a limiting term is not”.
The standard non-parole period statutory scheme does not apply to the sentencing of an offender to detention under the Mental Health (Forensic Provisions) Act: s 54D(1)(b) Crimes (Sentencing Procedure) Act.
There is no statutory authority for a sentencing court to order early release on parole for limiting terms of less than 3 years: R v Mailes at .
In cases involving normal terms of imprisonment of less than 3 years, s 50 Crimes (Sentencing Procedure) Act requires a court to make an order for an offender’s early release on parole. However, this provision does not apply to the sentencing of an offender to detention: s 54; R v Mailes at .
The absence of a non-parole period does not affect the term of the head sentence that would otherwise have been imposed and in relation to which the limiting term is to be set: R v Mailes at . There is no logical reason for reducing it simply because there is no provision for a non-parole period: R v Mailes at . To do so ignores and undermines the different features and objectives of regular sentences and limiting terms: R v Mailes at ; R v Mitchell at .
Evidence of practical issues concerning the difficulties faced by persons serving limiting terms in obtaining early release does not affect the requirement in s 23(1)(b) to set limiting terms by reference to the head sentence that would have been imposed following a guilty verdict in a proper trial: R v Mailes at ; R v Mitchell at , . The court should not attempt to make any estimate of the degree of likelihood of an offender being released: R v AN (No 2) (2006) 66 NSWLR 523 at ; R v AN at .
An offender’s mental condition is relevant to the length of the limiting terms in at least three ways:
the applicant’s culpability
the likelihood of re-offending
the protection of the community.
Precisely how each affects the length of a limiting term depends on the circumstances of each case: R v AN at , affirming R v Engert (1995) 84 A Crim R 67. In R v AN the uncontradicted evidence about the offender’s mental condition and its impact on his offending meant that, when determining the length of the limiting term to be imposed, the offender’s mental condition was a “highly significant” consideration: at . The protection of the community is often an important consideration. The level of danger which a mentally ill offender presents to the community is a countervailing consideration to all other relevant sentencing principles: Courtney v R (2007) 172 A Crim R 371 at , , ; Agha v R  NSWCCA 153 at .
McClellan CJ at CL said of the sentencing exercise in Bhuiyan v R  NSWCCA 221 at :
… although in most cases the serious mental illness will have deprived an offender of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the offender. The particular difficulties faced by an offender which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the offender before the limiting term has expired.
In nominating a limiting term, the court may take into account any periods of custody or detention before, during and after the special hearing (being periods related to the offence): s 23(4).
A limiting term takes effect from the time when it is nominated (s 23(5)) unless the court:
after taking into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or
directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.
When making a direction under s 23(5)(b) the court is to take into account that:
whereas a sentence of imprisonment imposed in normal criminal proceedings may be subject to a non-parole period, a limiting term is not subject to a non-parole period (s 23(6)(a)); and,
in normal criminal proceedings, consecutive sentences of imprisonment are imposed with regards to non-parole periods (s 23(6)(b)).
Section 23 of the Act requires the nomination of a limiting term and does not contemplate the imposition of alternative forms of imprisonment, such as suspended sentences: Warren v R  NSWCCA 176 at .
Section 23 of the Act, which requires the nomination of a limiting term, does not provide for the detention of offenders: R v AN (No 2) at . Instead, the court must refer the person who is the subject of the limiting term to the Mental Health Review Tribunal: s 24(1)(a). At that point, the court may make an appropriate interim detention order: s 24(1)(b); Mailes v DPP  NSWSC 267 at .
Once the court is notified of the Tribunal’s determinations, s 27 provides that the court may make a detention order. A five-judge bench in DPP v Khoury (2014) 306 ALR 86 considered the proper construction of s 27 and determined that despite the use of the word “may”, the power of the court under s 27 to order detention was restricted to determining the place in which the person should be detained, and not whether he or she should be detained: at , , . The authority of R v AN (No 2) was held to be incorrect in construing s 27 as conferring a discretion on the court to determine whether detention should be ordered at all: DPP v Khoury at , .
The court also does not have the power to order only part of the limiting term be served in detention, as this would subvert the Act’s review procedures and objective: R v AN (No 2) at .
When a person’s limiting term expires (where that term is less than life), he or she will cease to be a forensic patient: s 52(2). However from 27 November 2013, due to amendments under the Mental Health (Forensic Provisions) Amendment Act 2013, a person’s status as a forensic patient may be extended on the application of a Minister during the final six months of a person’s limiting term: s 54A; Sch 1, Pt 2. The Supreme Court may order an extension if satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others, and that risk cannot adequately be managed by less restrictive means: Sch 1, Pt 1, cl 2(1). An extension order cannot exceed 5 years, but a second or subsequent applications for extension can be made: Sch 1, Pt 2, cl 8.
When a person’s limiting term expires and no extension application is made, he or she must be discharged unless classified as an involuntary patient under s 53: s 54. Under the six-monthly review process established under Pt 5 of the Act, a person may be released by the Mental Health Review Tribunal prior to the expiration of their limiting term.
Sections 32 and 33 of the Act enable magistrates to arrange for the care and treatment of persons suffering from mental health problems. Section 32 applies to an accused person who suffers from a mental deficiency but is not mentally ill within the terms of the Mental Health Act 2007. Section 33 applies to an accused person who is mentally ill within the terms of the Mental Health Act.
Section 32 permits a magistrate in summary proceedings to divert mentally disordered defendants:
into the care of a responsible person (unconditionally or subject to conditions) (s 32(3)(a)),
on the condition that the defendant obtain mental health assessment and/or treatment (s 32(3)(b)), or
unconditionally (s 32(3)(c)).
As outlined in s 32(1)(a) and (b), s 32 applies if (at the beginning or any time during the course of proceedings) it appears to the magistrate that a defendant is (or was at the time of the alleged offence):
suffering from a mental illness, or
suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person within the meaning of the Mental Health Act, and
it would be more appropriate to deal with the defendant in accordance with s 32 than otherwise in accordance with law.
A “mental condition” is defined under the Act as “a condition of disability of mind not including either mental illness or developmental disability of mind”: s 3(1). Neither developmentally disabled nor mental illness are defined terms under the Act.
In DPP v El Mawas (2006) 66 NSWLR 93 at –, Spigelman CJ described the s 32(1)(a) and (b) statutory preconditions as a “two-fold test”, with s 32(1)(b) conferring a “very wide discretion”.
Indeed, it is firmly established in the case law that the decision to divert a defendant under s 32(1) is discretionary, with the decision only being able to be set aside if an error of the type referred to in the High Court decision of House v The King (1936) 55 CLR 499 at 505 is established: DPP v El Mawas at ; Mantell v Molyneux (2006) 68 NSWLR 46 at .
The case law also reveals that relevant considerations which can inform the exercise of the discretion include:
the seriousness and circumstances of the alleged offence: DPP v El Mawas at 
the defendant’s criminal history: Mantell v Molyneux at 
the existence and content of a treatment plan: DPP v El Mawas at 
the limited period of six months that conditional orders are enforceable by the court: Mantell v Molyneux at 
the sentencing options that are available in the event the defendant is dealt with according to law: Mantell v Molyneux at .
The court must give applicants an opportunity to address the questions of whether the circumstances of the alleged offence warrant an order under s 32: Khalil v His Honour, Magistrate Johnson  NSWSC 1092 at .
Once the court has decided to exercise the s 32 discretion, it can make interlocutory orders under s 32(2) and final orders under s 32(3): DPP v El Mawas at , per McColl JA; Mantell v Molyneux at . The court in Mantell v Molyneux at  encouraged magistrates to use s 32(2) orders in combination with s 32(3) orders.
A magistrate is required to provide reasons for a decision whether or not a defendant should be dealt with under ss 32(2) or 32(3): s 32(4A). In DPP v Soliman  NSWSC 346, Button J stated that although the requirements of a judgment in a s 32 application will depend on the circumstances, in many cases it will be appropriate for a magistrate to (at –):
express a very brief finding as to whether a defendant falls within s 32(1)(a) and if so, which subparagraph;
indicate that the balancing test in s 32(1)(b) and the seriousness of the offence has been taken into account; and
briefly discuss the proposed assistance and treatment for the defendant and why such a course is to be adopted or rejected.
However, to meet the above requirements the usual case would consist only of sentences, rather than paragraphs or pages, of transcript: DPP v Soliman at .
If a magistrate finds that a defendant subject to a s 32(3) order has failed to comply with its conditions, the magistrate may (within six months of the order being made) call on the defendant to appear before him or her: s 32(3A). Warrants for the accused’s arrest may be issued: s 32(3B). Ultimately, the magistrate may deal with the charge as if the defendant had not been discharged under s 32(3) and may therefore make another s 32 order or proceed according to law: s 32(3D).
Although s 32(3) orders are enforceable for six months (s 32(3A)), uncertainty exists as to whether or not the term of the order can extend beyond the six month enforceability period. This ambiguity was discussed in the Judicial Commission’s study of s 32 in 2007 (see T Gotsis and H Donnelly, Diverting mentally disordered offenders in the NSW Local Court, Research Monograph 31, Judicial Commission of NSW, Sydney, 2008, pp 15–16) and also highlighted in the NSW Law Reform Commission’s Consultation Paper 7 (CP7), People with cognitive and mental health impairments in the criminal justice system: diversion, January 2010.
Section 32 does not apply to persons charged with Commonwealth offences because the equivalent scheme found in ss 20BQ Crimes Act 1914 (Cth) is complete on its face: Kelly v Saadat-Talab (2008) 72 NSWLR 305 at –, .
If at the commencement or at any time during the course of proceedings it appears to the magistrate that the defendant is a mentally ill person, the magistrate may:
order that the defendant be taken to, and detained in, a mental health facility for assessment (s 33(1)(a))
order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is assessed as not being mentally ill or mentally disordered, the person be brought back before a magistrate (s 33(1)(b)), or
discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person (s 33(1)(c)).
An order made under s 33(1)(a) or (b) of the Act enables the accused person to be detained in a mental health facility under the provisions of the Mental Health Act: ss 18, 24 Mental Health Act.
If a defendant is dealt with under s 33, the charge which gave rise to the proceedings is taken to have been dismissed unless, within six months after the date on which the person is so dealt with, the defendant is brought before a magistrate to be further dealt with in relation to the charge: s 33(2).
Section 33(1A) enables a magistrate to make a community treatment order in relation to a defendant, if satisfied that all of the requirements for making such an order under the Mental Health Act (other than the holding of an inquiry) are met. Under s 53(4) Mental Health Act, community treatment orders may not be ordered unless the person in question is mentally ill within the terms of that Act.
Community treatment orders can be made for up to 12 months: s 53(6) Mental Health Act. Before making a community treatment order under s 33(1A), a magistrate must notify the Director General of the Department of Health (or an authorised person) of the proposed order: s 33(1C).
A magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under s 33(1) or (1A): s 33(4A).
A s 33 order may provide that a juvenile defendant may be taken to or from a place by a juvenile justice officer employed in the Department of Juvenile Justice: s 33(5A)(a).
A s 33 order may also provide that any defendant can be taken to or from a place by a prescribed authorised person: s 33(5A)(b). Pursuant to cl 13 Mental Health (Forensic Provisions) Regulation 2009, the following persons are prescribed as persons who may take a defendant to or from a place:
if the defendant is on remand or serving a sentence of imprisonment (other than a defendant detained in a detention centre) — correctional officer or other officer employed in the Department of Corrective Services or a police officer,
if the defendant is a juvenile and is detained in a detention centre — an officer employed in the Department of Juvenile Justice,
in any other case — a member of staff of the NSW Health Service, a police officer, a correctional officer or other officer employed in the Department of Corrective Services, an officer employed in the Department of Juvenile Justice or a person who provides a transport service approved for that purpose by the Director-General.