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      section 32

      Actor Has Assault Police Charges Dismissed Due To Mental Health – What is a Section 32 Application?

      A renowned Australian actor who was initially refused bail has escaped conviction for allegedly assaulting Police due to his mental health issues.

      Former Home and Away star Joel McIlroy recently made a successful Section 32 Application at the Downing Centre Local Court.

      The Court received medical material which confirmed that McIlroy had degenerative brain disease and has only an estimated 10 years left to live.

      What happened?

      On 22nd October 2019, plainclothes police were at Surry Hills in relation to an unrelated matter. They had just made an arrest.

      Mr McIlroy was wandering down the street and saw the arrest by chance. He approached the man who had just been arrested and asked him if he was OK.

      The female officers introduced themselves as police, but Mr McIlroy responded, “How do I know you’re police? You’re not in uniform.”

      This prompted Police to show their identification to 47-year-old McIlroy and direct him to move on.  

      As he was walking off, the six-foot, 100 kilogram actor ‘barged’ his shoulder into one of the female officers who was described as weighing between 55 and 65 kilograms at a height of 5 foot 4.

      The constable stumbled backwards before reaching out, “to try to grab him, to arrest him for assaulting her” according to Magistrate Jennifer Giles.

      In response, Mr McIlroy began punching the officer repeatedly to the head. When a second female officer tried to intervene, he attempted to punch her but did not connect. The three parties then fell to the ground and the actor grabbed the neck of one of the officers.

      A passing civilian noticed the fracas and helped to restrain Mr McIlroy until further police attended.

      He was taken to Surry Hills Police Station and charged with two counts of assaulting an officer in the execution of their duty, one count of assaulting an officer causing actual bodily harm, resisting an officer in the execution of their duty, and wilfully obstructing an officer.

      The female constable was taken to St Vincent’s Hospital where she was treated for soft tissue damage, a dislodged vertebra, cheek swelling and redness. She will require ongoing treatment by a physiotherapist.

      Magistrate Giles described the offending as, “…a very serious incident of gratuitous, wanton, vengeful, probably even sexist violence by the defendant against the police when told by them to mind his own business and go away”.

      Section 32 Application granted at Downing Centre Local Court

      However, the seriousness of the offending had to be balanced against the severity of the actor’s mental condition.

      Psychiatric evidence confirmed that McIlroy had been diagnosed with ‘Huntington’s disease’ – a degenerative brain condition – in 2007. The disease causes a progressive breakdown of nerve cells in the brain and symptoms including lack of impulse control, outbursts and acting without thinking.

      There was also evidence tendered that the condition had killed “a number of the male members of his family”. A medical opinion was also preferred to the effect that Mr McIlroy had an estimated 10 years left to live.

      Her Honour said she was “reluctant” to dismiss the charges on mental health grounds as they were, “very serious matters for which the community rightly condemns him”.

      “No one pretends the violence wasn’t shameful for the defendant and terrifying for both constables and the poor selfless community-minded gentleman … who stepped in to assist the constables…gratuitous violence against police is endemic, prevalent and seemingly constant”.

      However, the legislation required her to balance the need for punishment and denunciation of the offending with the public interest in McIlroy being dealt with him in the health system, not the justice system.

      “This is not a Section 32 I wanted to grant,” Ms Giles said. “In a perfect world the police would not be assaulted and people would not have their brains die at 47.”

      Mr McIlroy will be subject to “exhaustive” requirements devised by a psychiatrist that are aimed at stopping future offending.

      Two members of the public gallery began to cry when the charges were dismissed. Mr McIlroy stood up and said “thank you, your honour” before attempting to hug the police officer in charge of the case and said, “I’m sorry.”

      Bail refused

      The matter was first heard before Magistrate Robert Williams at Central Local Court.

      Appearing on audio-visual link from the Surry Hills cells,  the actor interrupted the police prosecutor on number outs occasions yelling, “It’s lies” and “That’s incorrect”.

      An application was made for the actor to be granted bail.

      However, Magistrate Williams was not minded to do so, stating that Mr McIlroy was likely to face a full time custodial sentence.

      He later made a successful bail application when specialist criminal lawyers appeared for him.

      What is a Section 32 Application?

      Section 32 of the Mental Health (Forensic Provisions) Act 1990 allows a charge (or charges) to be dismissed if a person suffers from a mental condition, mental illness or is cognitively impaired.

      A successful application allows an Accused to avoid any finding of guilty or criminal conviction. This can be conditional on the condition that they comply with a mental health treatment plan for a period of 6 months.

      If a Section 32 Application is refused, an Accused will have to be dealt with according to law. It is important to be aware that this does not mean that he or she will definitely receive a criminal conviction.

      If they plead guilty, they will still be eligible for a Section 10 dismissal or a Conditional Release order without Conviction. Both of these sentencing outcomes will result in no criminal conviction being recorded.

      Alternatively, a plea of ‘not guilty’ can be entered and the charge(s) can be fought. 

      If a person is granted a Section 32 Application and they breach the order, the Court can re-sentence the Accused. A breach of a Section 32 order can occur by committing further offences or not complying with the treatment plan.

      A Court that is re-sentencing for a breach can revoke the Section 32 order, take no action on the breach, or impose a further Section 32 order.

      Making Section 32 Applications

      Section 32 Applications are complex and require thorough preparation. You will require both an experienced criminal lawyer and as well as an experienced forensic psychologist or psychiatrist.

      We have successfully made hundreds of Section 32 Applications for a wide array of charges. You can view a recent example of a successful Section 32 Application here, or call Astor Legal on (02) 7804 2823. Or, you can email info@astorlegal.com.au.

      We have offices throughout the Sydney metropolitan area where you can speak to our Sydney CBD, Parramatta and Liverpool Criminal Lawyers. We can arrange a conference for you with a Law Society Accredited Specialist in criminal law.

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