Assistance for people with an intellectual or psychiatric disability going to court is available and it is a good idea to ask the court in advance to allow an advocate, guardian or friend to assist at the hearing. Eligibility for criminal justice diversion programs and the specialist Assessment and Referral Court can provide psychological assessÂment and referral to welfare, health, mental health, disability or housing services, and/or to drug and alcohol treatment.
Assistance at court
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 Act) and the right to equality before the law (s 8 Charter Act).
There are a number of specialist courts and court support services available.
The Court Integrated Services Program (CISP) offers support to parties in Magistrates’ Court proceedings (e.g. applicants, respondents and alleged offenders). 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 currently operates at the Latrobe Valley, Melbourne, Mildura and Sunshine Magistrates’ Courts.
Court Integrated Services Program (CISP)
Tel: 9628 7975; 9628 7936
The Enforcement Review Program (ERP) assists community members with special circumstances and outstanding fines at the Infringement Court (which is a venue of the Magistrates’ Court). The program enables the court to impose outcomes that reflect the offender’s circumstances.
Special circumstances (s 65 Infringements Act 2006 (Vic)) include:
• a diagnosed mental illness (e.g. Alzheimer’s disease, bipolar disorder, dementia, depression and anxiety*, psychosis, schizophrenia, severe mood disorder);
• neurological disorders (e.g. acquired brain injury, Huntington’s disease, intellectual disability, muscular sclerosis and related diseases, Parkinson’s disease);
• a serious addiction to drugs, alcohol or a volatile substance (see s 57 Drugs, Poisons and Controlled Substances Act 1981 (Vic));
* In relation to depression and anxiety, the registrar requires a detailed and comprehensive medical report, outlining the severity of the person’s illness.
If, at the time of offending, the person’s judgment was impaired (due to their special circumstance), an application for the fines to be revoked (i.e. cancelled) on the grounds of special circumstances can be made. This does not apply to fines incurred for excessive speeding, drug-driving, or to open court fines.
An application to revoke fines on the grounds of special circumstances must be made in writing and be supported by medical evidence. The application must outline and include:
• the person’s financial circumstances;
• any social factors impacting their lives;
• services to which they are currently linked;
• Centrelink statements;
• supporting written references.
Evidence submitted in support of the application must be current (i.e. no more than 12 months old). Medical evidence (from a treating doctor or psychiatrist) should outline a formal diagnosis, current treatment and compliance, duration of illness, and how the illness impaired the person’s judgment at the time of the offending.
The offender must attend court and plead guilty and the court will take into consideration the special circumstances contained in their application. Magistrates and judicial registrars have full discretion as to what type of order can be imposed – including a dismissal (pursuant to s 76 Sentencing Act 1991 (Vic) (“Sentencing Act”)), a good behaviour undertaking, or the re-imposition of the fine.
For more information on the infringement system and on applying to have your fines revoked, see Fines and infringements.
The CREDIT/Bail Support Program assists to assign people into drug treatment and/or rehabilitation programs, rather than be remanded. The program operates at metropolitan and regional Magistrates’ Courts (Ballarat, Broadmeadows, Dandenong, Frankston, Geelong, Heidelberg, Moorabbin and Ringwood). People placed in a program are required to commit to treatment and attend regular support meetings with their case manager.
CREDIT/Bail Support Program
Tel: 9628 7975; 9628 7936
The Mental Health Court Liaison Service 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, Ringwood and Sunshine.
Mental Health Court Liaison Service
Tel: 9628 7909; 9602 3293
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 of Victoria
Dandenong Magistrates’ Court,
Cnr Foster and Pulteney Streets, Dandenong Vic 3175
Tel: 9767 1344
Melbourne Magistrates’ Court,
233 William Street, Melbourne Vic 3000
Tel: 8615 3889
The Koori Court seeks to empower Koori people 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 prior to imprisonment.
The Koori Court sits at seven Victorian locations (Bairnsdale, Broadmeadows, Latrobe Valley, Mildura, Shepparton, Swan Hill and Warrnambool) and the Children’s Koori Court also sits at Melbourne.
Tel: 9032 0946
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;
• there is sufficient evidence to gain a conviction;
• 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”).
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” under “Sentencing”).
In discussing diversion with the informant, it is advisable for the accused 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 is able to make a wide range of orders as part of a diversion plan, including:
• apologising to the victim (written or face-to-face apology);
• 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. Thus, 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
Tel: 9628 7862
The Assessment and Referral Court List (ARC List)is a specialist court list for people with a mental illness and/or a cognitive impairment. The ARC List is located at the Melbourne Magistrates’ Court (for the ARC List’s contact details, see “Contacts”).
The ARC List 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.
The ARC List focuses on harm reduction to the community, by addressing the underlying factors that contribute to offender behaviour. The ARC List’s main goal is to reduce the number of such offenders entering the prison system.
The ARC List 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.
A case may be heard in the ARC List 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) – eligible offences include recklessly causing serious injury, making threats to kill, and indecent assault;
• the accused has, or is likely to have, one or more of the following:
– 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 the ARC List, including attending court regularly and meeting with ARC staff.
Magistrates who preside over the ARC List decide who will be accepted to participate.
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 court support services counter at the Melbourne Magistrates’ Court and from the Magistrates’ Court website (www.magistratescourt.vic.gov.au).
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 available ARC List sitting, the magistrate decides whether the participant is accepted in the ARC List;
• if accepted, the ARC List 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 the ARC List, if the participant pleads guilty, they will be sentenced within the ARC List;
• if the participant pleads not guilty, the case is returned to the “mainstream” court for a contested hearing;
• involvement with the ARC List 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.