The law aims to protect the rights of persons with a mental impairment as well as the safety of victims and the community in general.
If the defendant was suffering mental illness or cognitive impairment at the time of the offence one issue that may be raised is whether the defendant was mentally incompetent to commit the offence or is mentally unfit to stand trial. If this is established, then:
- the defendant may be released unconditionally; or
- the defendant may be released on licence, for a period of time decided by the court. The court can impose conditions as to treatment, place of residence, or the non-use of and testing for illicit drugs and alcohol, or
- the defendant may be committed to a psychiatric institution for a period of treatment.
The period of time set for any conditions imposed on a defendant will be similar to the sentence they would have received for the offence had they not been mentally impaired.
In deciding what order to make the court will consider:
- the nature of the defendant's mental impairment
- whether the defendant is, or would if released be, likely to endanger another person, or other persons generally
- whether there are adequate resources available for the treatment and support for the defendant in the community
- whether teh defendant is likely to comply with the conditions of a licence
- and other matters that the court thinks relevant.
The court considers psychiatric evidence and also the views of the victims, as well as the accused's family. Information on the attitudes of victims is usually prepared by staff from the Forensic Mental Health Service, Court Assessment Service.
The rights as outlined in the Declaration of principles governing the treatment of victims of crime apply to you as a victim of a mentally incompetent defendant.
For more information see the Witness Assistance Service Fact Sheet - Mental Impairment and Fitness to Stand Trial Matters