Insights

The ‘mental illness’ defence has been a source of controversy since its conception. Today, the debate rages on. As of August this year, discussion in relation to the morality of this defence has again come to the fore. This is due to the recent rampage carried out by the knife wielding, Mert Ney, in Sydney’s CBD district. Public outcry followed the statement released by Ney’s lawyer, which stated that “he (Ney) will be defending the charges on the grounds of mental illness”. The approach taken in dealing with mental illness in criminal offence proceedings is dependent on the level of culpability attached to the offence. Most people are unaware of this and conflate separate processes into notions of a single ‘mental illness’ defence.

Mental illness defence vs applications for judicial discretion

The defence which Ney’s lawyer is likely referring to being that of ‘mental illness’, only applies to indictable proceedings. Indictable offences, generally speaking are offences that carry a maximum sentence of imprisonment for more than 2 years and a high level of criminal culpability is presumed. The principle underpinning this defence is that a person cannot be found guilty of an offence in circumstances where they lack the capacity to understand that what they are doing is wrong. The test applied is an extremely high bar and only extreme cases of mental health disorders give rise to the defence. While important to mention, the ‘mental illness’ defence is utilised in far fewer cases than the mental health provisions which allow for judicial discretion relating to summary offences (or indictable offences triable summarily).

Summary offences cover most driving offences, minor drug offences and other matters heard in the local court. Summary offences generally carry a maximum sentence of 2 years of imprisonment and the court has been given discretion to deal with persons with mental health disorders otherwise than in accordance with the law. This discretion acknowledges the lower criminal culpability associated with summary offences and provides a mechanism to promote community safety and rehabilitation in harmony with the mandatory principles of sentencing.

There are many misconceptions surrounding an accused’s ability to ‘get off’ criminal charges on the grounds of mental illness. Once an application is made, the Magistrate has extremely wide discretion to make any order considered appropriate in the circumstances including the option to dismiss the charge. Despite negative community sentiment, the benefits associated with granting an application for judicial discretion for summary offences are copious as the law provides mechanisms which impede the defence operating as ‘get out of jail free card’.

Before accepting an application to deal with a summary matter other than according to law, the Magistrate must be satisfied that the defendant is suffering from a mental illness or is cognitively impaired with reference to legislative definitions. Usually an expert psychologists’ report is presented to the court to establish this. The Magistrate then undertakes a balancing process and considers the public interest in the defendant having treatment mandated by the court, opposed to the public interest in having the matter dealt with according to law.

In cases where the threat to the community is deemed low the court will dismiss the charge and discharge the defendant into the care of a responsible person conditionally or unconditionally. As rehabilitation is usually the primary policy consideration in making such an order, the court generally requires the accused’s participation in a structured treatment plan. If the treatment plan is not strictly complied to and a breach occurs within the first 6 months of the order, the court will be at liberty to impose further sanctions.

Should you need more information about mental health, please do not hesitate to our expert criminal team. We specialise in identifying if mental health is a contributing factor and focus on long term assistance and rehabilitation. Our criminal team is ran by a former a police officer and prosecutor, with his background and experience, we understand how best to represent you.

This article was co-written by Law Cadet, Bill McLaughlin.

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