From the moment a person with a mental illness or intellectual disability is first interviewed by police, specific procedures, laws and human rights obligations apply. The defence of mental impairment should always be considered, but important legal factors must be considered. Assistance for going to court should be planned ahead, and consideration of criminal justice diversion programs, and the specialist Assessment and Referral Court that can provide psychological assessment and referral to welfare, health, mental health, disability, housing services, and/or to drug and alcohol treatment. More sentencing options are available and supervision and leave orders for forensic patients.

Contributor

Liam McAuliffe

Barrister

People with disability at court

Last updated

1 June 2021

Assistance at court overview

Attending court can be a nerve-racking experience for people with an intellectual or psychiatric disability. A person with a disability may feel more relaxed if they are familiar with the court setting and process, including the different roles of the magistrate, lawyers, and other people present in the courtroom.

Requests for the assistance of an advocate, guardian or friend should be made in advance (if possible) to the court’s registrar. To support this request, a lawyer can raise the right to a fair hearing (s 24 Charter) and the right to equality before the law (s 8 Charter). There are a number of court support services and specialist courts available. A person’s rights in criminal proceedings (under section 25 of the Charter) also include being told about the right, if eligible, to have legal aid.

Court support programs

Court Integrated Services Program – Magistrates’ Court

The Court Integrated Services Program (CISP) offers support to parties in Magistrates’ Court proceedings (e.g. applicants, respondents and defendants). CISP assists people to access a variety of services to address their health and social needs. CISP was established to provide support and services aimed at reducing re-offending and making communities safer. 

The main aims of CISP are:

  • to provide short-term assistance before sentencing for accused people with health and social needs;
  • to work on causes of offending through individual case management support;
  • to provide priority access to treatment and community support where possible;
  • to try to reduce re-offending rates.

CISP is available at the Magistrates’ Courts in Ballarat, Bendigo, Broadmeadows, Dandenong, Frankston, Geelong, Heidelberg, Korumburra, Latrobe Valley, Melbourne, Mildura, Moorabbin, Portland, Ringwood, Shepparton, Sunshine,  Warrnambool, Wangaratta, Wodonga and Wonthaggi.

Court Integrated Services Program (CISP) – Magistrates’ Court
Email: cisp@courts.vic.gov.au
Web: www.mcv.vic.gov.au/find-support/bail-support-cisp

Court Integrated Services Program – County Court

In January 2020, a CISP pilot program commenced in the County Court. The aims of CISP at the County Court are similar to the aims of the program in the Magistrates’ Court (see above). Defendants must meet certain eligibility requirements to be accepted into the program.

Court Integrated Services Program (CISP) – County Court
Email: cisp@countycourt.vic.gov.au
Web: www.countycourt.vic.gov.au/going-court/criminal-division/court-integrated-services-program

Enforcement Review Program

This program no longer operates.

Mental Health Advice and Response Service (courts) (MHARS)

Run by Forensicare, MHARS is a court-based assessment and advice service that identifies and assesses people involved in a matter before the court who may have a mental illness. The service connects these people to an appropriate mental health facility. 

This service operates at the Magistrates’ Courts in Melbourne (CBD), Broadmeadows, Dandenong, Frankston, Heidelberg, Moorabbin, Ringwood and Sunshine.

In November 2021, a MHARS pilot program was launched in the County Court.

Mental Health Advice and Response Service (courts) (MHARS)
Tel: 9947 2500
Email: mharscounty@forensicare.vic.gov.au
Web: www.forensicare.vic.gov.au/our-services/community-forensic-mental-health-services/court-mental-health-response-service/

Criminal Justice Diversion Program

The Criminal Justice Diversion Program assists first-time offenders to avoid a criminal record by imposing conditions on the offender. These conditions are beneficial to the offender, the victim and the community. The offender does not need to enter a plea or appear in open court.

A matter is eligible for diversion if:

  • the offence is triable summarily and not subject to a minimum or fixed sentence or penalty (except demerit points);
  • the accused acknowledges responsibility for the offence;
  • the prosecution consents to the matter proceeding by way of diversion.

Prior convictions are taken into account when deciding if diversion is appropriate.

The Criminal Procedure Act 2009 (Vic) (s 59) sets out the requirements of the diversion program.

Diversion is an appropriate option if a person with a mental illness has committed a crime. Diversion may be suggested by the informant (i.e. the police officer who charged the person), their lawyer or the court.

If the prosecution in a proceeding raises the option of diversion for an offender with a mental illness, they may have formed the view that the person’s disability impacted their offending. Therefore, there may be sufficient evidence to enter a defence of mental impairment (see ‘Defence of mental impairment’, below).

The diversion program is also available to offenders with an intellectual disability. Offenders with an intellectual disability may also be eligible for a community corrections order (see ‘Intellectual disability’, below).

In discussing diversion with the prosecution, it is advisable for the defendant to discuss their personal situation and circumstances, including employment status, any prior criminal history, any voluntary work performed within the community, an explanation for the offence, and the likely impact that a criminal conviction would have on the person’s life and future.

The magistrate or judicial registrar can make a range of orders as part of a diversion plan, including:

  • apologising to the victim (in writing or face-to-face);
  • performing voluntary community work;
  • receiving counselling or other treatment;
  • paying compensation;
  • living at home;
  • not associating with certain people.

If the court orders that an offender must not associate with certain people, section 12 of the Charter (the right to freedom of movement) may apply. An argument might be made that such an order be moderated or not imposed, considering the balancing of rights that is called for in the Charter.

When a diversion plan is implemented, the charges are adjourned. When the case returns to court, if the person has met all the conditions of the diversion plan, the charges are discharged and no finding of guilt or conviction is recorded.

If the conditions of the diversion plan are not met, the matter is referred back to the mention court or the Magistrates’ Court, as if the matter was being listed for the first time. All information about the diversion program is removed from the person’s file.

Criminal Justice Diversion Program
Web: www.mcv.vic.gov.au/find-support/diversion

Specialist courts

Assessment and Referral Court (ARC)

The Assessment and Referral Court (ARC) is a specialist court list for people with a mental illness and/or a cognitive impairment. ARC is available  at the Magistrates’ Courts in Frankston, Korumburra, Latrobe, Melbourne and Moorabbin.

ARC works in collaboration with CISP, which provides case management to participants. Case management includes psychological assessment, and referral to welfare, health, mental health, disability or housing services, and/or to drug and alcohol treatment.

ARC focuses on harm reduction to the community, by addressing the underlying factors that contribute to offender behaviour. ARC’s main goal is to reduce the number of such offenders entering the prison system.

ARC aims to link people with appropriate services. This requires the participant’s engagement and compliance. Therefore, it may not be suitable for some people, particularly those who intend to plead not guilty, and also people who do not want to engage with treatment and support services.

Eligibility criteria

A case may be heard in ARC if:

  • the accused is charged with a criminal offence that is not a violent offence, serious violence offence or serious sexual offence (see sch 1, cls 1, 2, 3 Sentencing Act 1991 (Vic)) – eligible offences include recklessly causing serious injury, making threats to kill, and indecent assault;
  • the accused has, or is likely to have:
    • a mental illness,
    • an intellectual disability,
    • an acquired brain injury,
    • autism spectrum disorder,
    • a neurological impairment, including but not limited to dementia;
  • the disorder causes a substantially reduced capacity in at least one of the areas of self-care, self-management, social interaction or communication;
  • the accused would benefit from receiving coordinated services in accordance with an individual support plan (ISP) and/or participating in a problem-solving court process;
  • the accused must consent to participate in ARC, including attending court regularly and meeting with ARC staff.

Magistrates who preside over the ARC decide who will be accepted to participate.

Referrals to ARC

Referrals are accepted from the accused, their significant others, community service organisations, magistrates, police officers, prosecutors, legal representatives and other court-based support services. Referral forms are available from the ARC registry.

ARC process

Once a referral is made, the process includes:

  • an initial assessment;
  • determination of the next available court date;
  • a comprehensive clinical assessment;
  • at the next ARC sitting, the magistrate decides whether the participant is accepted into ARC;
  • if accepted, the ARC clinical advisor (in collaboration with the participant and CISP staff) develops a draft ISP for the magistrate’s approval;
  • regular appearances before the magistrate to discuss progress;
  • at the end of their participation in ARC, if the participant pleads guilty, they will be sentenced within ARC;
  • if the participant pleads not guilty, the case is returned to the ‘mainstream’ court for a contested hearing;
  • involvement with ARC for 3–12 months, however most are discharged within six months;
  • if the referral is refused, the offender’s charges are referred back to the mainstream court lists. Where appropriate, CISP staff continue to provide necessary support to the accused or, where connected with services, refer the accused back to relevant treatment and support services.

Assessment and Referral Court (ARC)
Tel: 9628 7978
Email (ARC registry): arc.registrar@courts.vic.gov.au
Email (ARC intake): arclist@justice.vic.gov au
Web: www.mcv.vic.gov.au/about-us/assessment-and-referral-court-arc

Drug Court

The Drug Court of Victoria is located in the Dandenong and Melbourne Magistrates’ Courts. The Drug Court undertakes the sentencing and supervision of the treatment of offenders with a drug and/or alcohol dependency. The goal of the court is to establish a unique program to reintegrate offenders into the community.

The Drug Court imposes a supervised two-year drug treatment order on participants, comprising two parts: a custodial part, and a treatment and supervision part. The custodial component is held in abeyance (i.e. it is suspended), pending treatment and supervision of the offender. The treatment and supervision involves a system of rewards and sanctions, designed to encourage positive, pro-social behaviour and the rehabilitation of the participant.

Drug Court – Dandenong Magistrates’ Court
35 Pultney Street, Dandenong Vic 3175
Tel: 9767 1344
Email: drugcourtdandenong@courts.vic.gov.au
Web: www.mcv.vic.gov.au/about_us/drug-court

Drug Court – Melbourne Magistrates’ Court
233 William Street, Melbourne Vic 3000
Tel: 9628 7983
Email: drugcourtmelbourne@courts.vic.gov.au

Koori Court

The Koori Court and Children’s Koori Court seeks to empower Aboriginal and Torres Strait Islander peoples by offering greater, positive participation of members of the Koori community in the court process and the administration of the law. This participation aims to reduce perceptions of cultural alienation and to ensure sentencing orders are appropriate to the cultural needs of Koori offenders.

The Koori Court aims to:

  • increase Koori ownership of the administration of the law;
  • increase positive participation by Koori offenders;
  • increase the accountability of Koori offenders, families and community;
  • encourage defendants to appear in court;
  • reduce the amount of breached court orders;
  • deter offenders from re-offending;
  • increase community awareness about community codes of conduct and standards of behaviour;
  • explore sentencing alternatives to imprisonment.

Koori Courts are located at the Magistrates’ Courts in Bairnsdale, Broadmeadows, Dandenong, Geelong, Hamilton, Latrobe Valley, Melbourne (CBD), Mildura, Portland, Shepparton, Swan Hill and Warrnambool. 

Koori Court
Tel (Court Services Victoria’s Koori Court Unit): 9032 0184
Web (Magistrates’ Court): www.mcv.vic.gov.au/about/koori-court
Web (Children’s Koori Court): https://www.childrenscourt.vic.gov.au/jurisdictions/koori-court
Web: www.mcv.vic.gov.au/about_us/drug-court

At the Melbourne Magistrates’ Court,
233 William Street, Melbourne Vic 3000
Tel: 9628 7983
Email: drugcourtmelbourne@courts.vic.gov.au

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