List of Subheadings
The content on this page was last reviewed on 10 October 2020.
1. Overview
The Crimes Act 1914 (Cth) makes available to the court alternatives in lieu of passing sentence when dealing with a person suffering from a mental illness. These options include:
- a Hospital Order under s 20BS; see federal commentary: Hospital Orders or
- a Psychiatric Probation Order under s 20BV (see below).
Under s 20BV(1), the court may make an order that a person convicted of a federal offence reside at, or attend, a specified hospital in order to receive psychiatric treatment. This is known as a Psychiatric Probation Order.
To make a Psychiatric Probation 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: s 20BV(1)(a).
Where a court is sentencing a person suffering from an intellectual disability the court may make a Program Probation Order pursuant to s 20BY: see federal commentary: Program Probation Orders.
2. When a Psychiatric Probation Order May be Made
Section 20BV(1)–(2) sets out when a court may make a Psychiatric Probation Order as follows:
(1) Where a person is convicted in a State or Territory of a federal offence and the court 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 psychiatric treatment for the person is available in a hospital or other place in the State or Territory; and
(d) the person consents to the order being made;
the court may, without passing sentence on the person, make an order (in this section called a psychiatric probation order ) that the person reside at, or attend at, a specified hospital or other place for the purpose of receiving that psychiatric treatment.
(2) The court must not make an order unless the person, or the person’s legal guardian, consents to the proposed treatment.
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Note: A Psychiatric Probation Order is made without passing sentence on the person. No other sentence may be imposed on the offender in relation to the same offence: s 20BV(1).1
In R (Cth) v Petroulias (No. 36) [2008] NSWSC 626, Johnson J declined at [186] to make an order under s 20BV in part because no psychiatrist had ‘expressed the opinion that the Offender satisfies the test of “mental illness” under [the Mental Health Act 2007 (NSW)]’.
3. What a Psychiatric Probation Order Must Specify
The Psychiatric Probation Order must specify that the person reside at, or attend at, a specified hospital for the purpose of receiving psychiatric treatment: s 20BV(1).
The treatment to be undertaken by the person may be varied on application: s 20BV(4).
A Psychiatric Probation Order is subject to the following conditions:
- for a specified period not exceeding 2 years, the person will be subject to the supervision, and obey all instructions of, an appointed probation officer: s 20BV(3)(a); and
- for a specified period not exceeding 5 years, the person will be of good behaviour: s 20BV(3)(b).
4. Breach of a Psychiatric Probation Order
Section 20BW sets out the procedure for dealing with a person who has breached a Psychiatric Probation Order.
Where a Psychiatric Probation Order has been made and information is laid before a magistrate, before or after the end of the period in s 20BV(3), alleging the person has without reasonable excuse failed to comply, the magistrate may:
- issue a summons directing the person to appear before the court by which the order was made: s 20BW(1)(a); or
- if the information is given on oath and the magistrate is of the opinion that the summons might not be effective – issue an arrest warrant: s 20BW(1)(b).
Where a person fails to comply with a summons, the court may issue an arrest warrant: s 20BW(2)(a).
An arrest warrant issued under s 20BW(1) or (2) authorises the bringing of the person before the court as soon as practicable after arrest, and the detention of the person in custody until the person is released by order of the court, or on bail under s 20BW(4): s 20BW(3).
Where a person has been arrested under a warrant and the court which made the order is not sitting at the time of the arrest, a magistrate may:
- remand the person on bail on such recognizance as the court thinks fit and on condition that the person attend court as specified: s 20BW(4)(a); or
- direct that the person be kept in custody: s 20BW(4)(b).
Where a person fails to attend court as required by a bail condition imposed under s 20BW(4)(a), the court may issue an arrest warrant: s 20BW(2)(b).
5. Enforcement of a Psychiatric Probation Order
Section 20BX deals with the consequences of breach of a Psychiatric Probation Order.
Where the court is satisfied that a person has, without reasonable excuse, failed to comply with a condition of the order, the court may:
- without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person: s 20BX(1)(a); or
- discharge the order and make an order under s 20, a conditional release order: s 20BX(1)(b); or
- revoke the order and deal with the person for the offence in respect of which the order was made: s 20BX(1)(c); or
- take no action: s 20BX(1)(d).
In determining what action to take, the court must, in addition to any other matters, take into account:
- the fact that the order was made: s 20BX(2)(a); and
- anything done under the order: s 20BX(2)(b);and
- any other order made in respect of the offence: s 20BX(2)(c).
Note: State or Territory law regarding enforcement or recovery of a fine imposed on an offender applies to a pecuniary penalty imposed under s 20BX(1)(a): see s 20BX(4).2
6. Right of Appeal
Where a person who has been released under s 20BV is dealt with under s 20BX(1), the person has the same rights of appeal as if the person had been convicted of the offence and a sentence was passed on that conviction: s 20BX(3).