The content on this page was last reviewed on 31 October 2019.

1. Overview

The Crimes Act 1914 (Cth) provides sentencing courts with alternatives in lieu of passing a sentence when dealing with a person suffering from a mental illness. These options include:

• a Hospital Order under s 20BS;(see below 2.) or
• a Psychiatric Probation Order under s 20BV¹

To make a Hospital Order the court must be satisfied that the person is suffering from a mental illness within the meaning of the civil law of that State or Territory.²

2. Where a hospital order may be made

A prior hospital order was referred to in Chia v The Queen [2018] WASCA 103, but ultimately the sentencing judge in that case went on to sentence the offender to a term of imprisonment.³

Section 20BS(1)(5) requires that prior to reaching an opinion on the matters specified in s 20BS(1), the court must obtain and consider the reports of two qualified psychiatrists with experience in the diagnosis and treatment of mental illness.⁴

The court may, without passing sentence, make a hospital order:

20BS  Hospital orders

(1)  Where a person is convicted in a State or Territory, on indictment, of a federal offence and the court before which the person is convicted is satisfied that:

                     (a)  the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and

                     (b)  the illness contributed to the commission of the offence by the person; and

                     (c)  appropriate treatment for the person is available in a hospital in that State or Territory; and

                     (d)  the proposed treatment cannot be provided to the person other than as an inmate of a hospital in the State or Territory;

the court may, without passing sentence on the person, make an order (in this section called a hospital order) that the person be detained in a hospital specified in the order for a period specified in the order for the purposes of receiving treatment specified in the order.⁵

A court must not make a hospital order unless, but for the mental illness, the court would have sentenced the person to a term of imprisonment.⁶

A hospital order may be made in respect of a person already serving a federal sentence.⁷

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3. What a hospital order must specify

The hospital order must specify the hospital in which the person will be detained,⁵ the period of detention,⁵ and the treatment that the person will receive.⁵

3.1 Period of detention

A hospital order must specify the period during which the person will be detained in the hospital.⁵

The period of detention must not exceed the period of imprisonment to which the person would have been sentenced had the hospital order not been made.⁸

The court may fix a shorter period during which the person may not be released from hospital.⁹

Where a lesser period is fixed under s 20BS(4), the Attorney-General must, at the end of that period, obtain and consider the reports of two  qualified psychiatrists so as to determine whether or not to release the person.¹⁰

After considering the reports, the Attorney-General must release a person unless:

• either of the reports recommends that the person not be released because of continuing need for treatment;¹¹or
• the person continues to be required to serve a federal sentence that the person was serving at the time the hospital order began.¹²

A person may be released on such conditions as the Attorney-General considers appropriate.¹³

For a person already serving a federal sentence at the time at which the hospital order begins, a shorter period determined under s 20BS(4) may not end:

• before any non-parole period set in respect of that federal sentence;¹⁴ or
• before the end of that federal sentence, where no non-parole period has been set.¹⁵

3.2 Release from a hospital  order may be revoked

Where a person is released by the Attorney-General at the completion of the shortened hospitalisation period, such a release order may be revoked in accordance with the provisions in s 20BM and s 20BN.¹⁶

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4. Discharge  of hospital orders

At any time while the hospital order is in force, the person detained or the Director of Public Prosecutions may apply for the court to discharge the order and impose such a sentence as the court thinks appropriate, being a sentence that could have been imposed when the order was made.¹⁷

Before reaching an opinion as to the following matters, the court:

1. must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness; and
2. if the person has been released, under section 20BR, into the care of another person for the balance of the hospital order—must obtain and consider the report of that other person; and
3. may obtain and consider such other information as it thinks relevant.¹⁸

The court must not discharge a hospital order unless the court is satisfied that:

1. that the person has sufficiently recovered from mental illness no longer to require involuntary hospitalisation; or
2. that the mental illness will not respond or respond further to hospital treatment.¹⁹

Where the court discharges the order and imposes a new sentence, the new sentence imposed must be a sentence that could have been imposed when the original hospital order was made,¹⁷ and:

3. Where the court discharges a hospital order and imposes another sentence instead of the order:
   • the new sentence must commence on the date of commencement of the order; and
   • the length of the new sentence must not exceed the length of the order; and
   • if the sentence is a sentence of imprisonment—the person concerned is to be treated as having served that part of the sentence during which he or she was subject to involuntary hospitalisation.²⁰

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1. For CSD commentary, see: Psychiatric Probation Orders.[↩]
2. Crimes Act 1914 (Cth) s 20BS(1)(a).[↩]
3. The sentence was upheld on appeal see Chia v The Queen [2018] WASCA 103.[↩]
4. Crimes Act 1914 (Cth) s 20BS(1)(5).[↩]
5. Crimes Act 1914 (Cth) s 20BS(1).[↩][↩][↩][↩][↩]
6. Crimes Act 1914 (Cth) s 20BS(2).[↩]
7. See Crimes Act 1914 (Cth) s 20BS(6).[↩]
8. Crimes Act 1914 (Cth) s 20BS(3).[↩]
9. Crimes Act 1914 (Cth) s 20BS(4).[↩]
10. Crimes Act 1914 (Cth) s 20BT(1).[↩]
11. Crimes Act 1914 (Cth) s 20BT(2)(a);[↩]
12. Crimes Act 1914 (Cth) s 20BT(2)(b).[↩]
13. Crimes Act 1914 (Cth) s 20BT(2).[↩]
14. Crimes Act 1914 (Cth) s 20BS(7)(a).[↩]
15. Crimes Act 1914 (Cth) s 20BS(7)(b).[↩]
16. Crimes Act 1914 (Cth) s 20BT(3).[↩]
17. Crimes Act 1914 (Cth) s 20BU(1).[↩][↩]
18. Crimes Act 1914 (Cth) s 20BU(4).[↩]
19. Crimes Act 1914 (Cth) s 20BU(2).[↩]
20. Crimes Act 1914 (Cth) s 20BU(3).[↩]