Removing all the options: Mandatory Sentencing for those with mental illness

08 Jul 2011

By Bridget Spinks

Mental illness which makes a person incapable of being responsible for his or her actions has often been treated as a legal safeguard. Record journalist Mark Reidy, who has more than a decade of experience dealing with those living on the margins of Perth’s streets, reflects on key flaws in WA’s mandatory sentencing laws which now see mentally ill people automatically go to jail.309.jpg

By Mark Reidy

When lawmakers adopt a “one size fits all” approach, it is inevitable that the most vulnerable citizens in that society will bear the greatest burden. Such is the case with recent WA legislation that demands mandatory sentencing for any person assaulting a public officer.
The law, which was passed in September 2009, was the by-product of a sharp escalation in the number of assaults on police, ambulance drivers and other public officers. However, the impulsive responses that triggered its introduction inadvertently placed those suffering mental illness, and their families, in a tenuous and potentially traumatic position.
Under the law, any adult causing bodily harm to a public officer will receive a minimum of six months’ incarceration.
Those aged 16–18 will be jailed for up to three months. Attorney General Christian Porter has justifiably claimed that the new law has been a success, pointing out that reported assaults against police had decreased by almost 30 per cent in the first 12 months.
However, buried beneath these statistics is the distress suffered by the families who now refuse to call police when they are having difficulties with their mentally ill relatives, because they fear that such intervention could lead to an officer being assaulted and family members being subsequently jailed.
Mike Seward, Executive Director of the WA Mental Health Carers and Friends Association (known as ARAFMI), expressed this concern recently, saying, “No mother and father wants to be responsible for their child going to jail, so parents, many elderly, would rather cop a beating than phone police”.
Such a predicament is a blight on our legal system. It is also contrary to Catholic social teaching which states that every person is unique, created in the image of God, is therefore invaluable and worthy and must always be treated accordingly. It is a premise that needs to be reflected in our laws.
The Vatican II document, Gaudium et Spes, called on the Church to “establish a political, social and economic order which will to a better extent serve and help individuals as well as groups to affirm and develop the dignity proper to them.”
Pope John Paul II, who would often speak of a preferential love for society’s most vulnerable and emphasise how Jesus had identified Himself with them, made specific mention of those with mental illness in a 1996 article, The image of God in people with mental illness. He said quite clearly that we, as a Church, should never hesitate in taking up the cause of the most vulnerable and that we must become the voice of those who are not listened to, “not to demand charity, but to ask for justice.”
It is imperative, therefore, that as Catholics, both individually and as a body, we take action when we perceive injustices within our society.
When we are confronted with laws such as mandatory sentencing, which forces justice to apply a uniform punishment without the discretion to consider each case on its own merits, then it is time to emulate the actions of our founder and seek a more just outcome.
Secular groups such as the Law Society of WA and the Criminal Lawyers’ Association have added their weight to the protestations of ARAFMI, echoing concern that mandatory sentencing laws will not only jeopardise families, but will inevitably increase the number of people with mentall illness in our jails.
WA Queen’s Counsel Tom Percy also expressed his opposition, asserting that mandatory sentencing forbids judges and magistrates from making any allowance for circumstances such as mental illness and denies them the opportunity to direct those charged to appropriate medical treatment.
No one denies police and other public officers, who courageously battle on the frontlines of an increasingly violent culture, the right to maximum protection under law, but the relevant legislation must not come at the expense of those whose mental condition at the time may diminish their moral culpability.
One of the key foundations of Catholic social teaching is the safeguarding of the rights and dignity of society’s most defenceless members, both in attitude and law. But failed or unfulfilled policies towards mental illness in recent decades have led to many families feeling helpless and unsupported.
Despite valiantly battling on a day to day basis, most are not equipped to deal with the confused, unpredictable and, at times, violent state that their mentally ill relative or friend will intermittently display.
It is in these situations that they have, in the past, been able to seek assistance from the police. But if mandatory sentencing laws are not amended to take into account the ramifications of mental illness, then such families will be robbed of their last refuge of support.
The plight of those with mental illness and their families in this situation was most likely an oversight of a law that rode its way through parliament on the back of the emotive wave of public indignation that saw a man freed from a charge of brutally assaulting a police officer.
However, in the cold light of day, we must delve into the intricacies of this needed, but flawed, law and seek to modify it to protect those who are incapable of protecting themselves. It is for this reason that ARAFMI are sponsoring a petition requesting the removal of any law that imposes mandatory sentencing for those with a mental illness.
This petition is running in conjunction with a bill recently introduced into WA parliament by Greens MLC Alison Xamon which, if successful, will redirect power back to courts.
Judges would then be able to determine each case on an individual basis and decide whether an offender’s behaviour at the time of the assault was impaired by his or her mental state and if so, prevent him or her from being automatically sent to prison.
The final words I shall leave to Pope John Paul II who once wrote: “Persons with mental illness and their families are in need and are asking for the Church, you and I, to help in their search for justice. In Matthew’s Gospel story of the final judgement, Jesus tells us, ‘whatever you did for one of these… you did for me’. Our call is clear – our response is not optional”.
The petition can be found on
the ARAFMI website: www.arafmi.asn.au