– to Recreational Drinkers in the Courts?
What an odd day: in the morning we defended a guy charged with breaching an ADVO (an Apprehended Domestic Violence Order), and inflicting assault (occasioning actual bodily arm), on his partner. That same evening I was asked to talk at a public forum hosted by AA, about ‘alcoholism and the law’.
It was a day that again proved two things to me. The obvious: that a few hours of drinking changes people for the worst; and the less obvious – the law treats recreational drinkers and alcoholics exactly the same, despite the claim that alcoholism is a disease.
What started as a happy couple having a few afternoon drinks at the pub, a meal, hanging with some friends, enjoying a band, and being happy in each others company; turned into a disagreement, that escalated into an argument, that got louder and louder, and ended with a shove, push, punch, kicks, and hospitalisation for bruising, a broken arm, and head injuries requiring stiches.
And the guy? The perpetrator of the violence? He was also breaching an AVO at the time of the assault, because he’s done it before to this woman. Here’s the issue that raised my question: he’s an alcoholic. It didn’t help his case – “hey your honour I have a disease – it’s alcoholism, so it wasn’t my fault. At the time I laid into her I was consumed by the ravages of the disease, it affected my mind, my ability to control my actions, and now I’m sorry.” Nope. If that approach were to be accepted by the courts, it would go some way to making ‘being drunk’ a partial defence – and who, in the community, could accept that a person who beats the crap out of another, is partially excused because they were drunk?
And there’s the issue, right there: if alcoholism is a disease, this accused was stricken with a mental health issue at the time of committing the offence. But in this situation, the accused is no more entitled to use their (involuntary) mental health condition in their defence, than a recreational drinker who got out-of-control one night and laid one punch (too many), and asserts ‘being (voluntarily) drunk’, as a defence.
Is alcoholism a disease? The public forum promoting AA (at which I spoke that day) had several guest speakers, and there was a unanimous view that alcoholism is a disease – a curable disease – but a disease, nonetheless. If it’s a disease, should the law treat alcoholism as a mental health issue? Should courts allow alcoholism to be raised as a complete or partial defence? Should courts allow evidence of the ‘disease’ of alcoholism to be admitted as a mitigating factor? Should courts sentence defendants on the basis they have a mental health issue – like any other mental health issue? Should sentencing reflect that, to some extent, the alcoholic-accused lacked culpability for their actions because they have a disease that affects their mind? Because the law doesn’t mandate differentiating sentences for alcoholics, as distinct from recreational drinkers – to most Magistrates the accused was drunk, and this is a voluntary action, and they are sentenced on that basis. In my experience, being ‘out of it’ on anything doesn’t usually assist in submissions to reduce a sentence.
Is that fair? If alcoholism is a disease that affects mental cognition, should alcoholics be treated differently, and their deteriorating mental health allowed as a defence, or reduce their sentence?
People who have never experienced depression, often see sufferers as ‘unappreciative whingers’ (they’ll say well-meaning, but stupid, things like: “look at all you have? A family, job, home, money ….. what have you got to be depressed about?”); similarly people who have never experienced acute anxiety, often relegate the inaction or paralysis of an anxious people to “laziness”; so too the non- and recreational drinker sees the (diseased?) alcoholic as self-indulgent, and lacking self-control, choosing to get drunk instead of being productive. Is that a fair characterisation of an alcoholic, if the AA members and speakers are right, and alcoholism is a disease?
Sentencing and Alcoholism:
Having said that I acknowledge that some sentencing options available to Judges and Magistrates (and often masterfully applied by them at appropriate occasions), is to Order participation in an intervention program as part of the sentence. For example, a bond or bail condition that the accused attend at alcohol counselling, detox or rehab. In this situation, the Magistrate or Judge is working with the options (and understanding) they have to help the struggling accused person in front of them, and to protect the community. But this is sentencing. Not a defence.
Alcoholism and s32:
S32 is a short-hand reference to s32 of the Mental Health (Forensic Procedures) Act, which allows the courts to hear an application that someone’s extreme mental health disorder (such as extreme depression, schizophrenia, bi polar, etc) is so severe, and contributed so greatly to the offence, that the courts should in effect remove the accused from the criminal justice system, and instead have the accused dealt with under the mental health regimes in place. Often alcoholism is cited in these cases as a part of a mental health condition (for example, cases where extreme depression has seen the accused self-medicate with alcohol), but in these instances alcohol is generally seen as exacerbating a pre-existing condition, not a mental health condition, a disease, in-and-of itself. (An analysis of s32 is beyond the scope of this paper, but it would be remiss to ignore the existence of this section.)
I don’t know if alcoholism is a disease. I’m not sure if the AA speakers are right. But if alcoholism is a disease, should the law recognise alcoholism as a partial defence, or as a mitigating feature of the requisite mens rea (mental/intentional element) of an offence? (instead of an aggravating feature, as it tends to do now)? If alcoholism is a disease, should recreational drinkers be treated differently from alcoholics?
This is NOT legal advice. I repeat – this is NOT legal advice. We write lots of blogs at the Local Court Lawyers and this one in particular is an opinion piece. Maybe it will start a conversation that needs to be had. Maybe it will help answer a question an accused or victim is asking themselves. But it is NOT legal advice. Every situation, person, set of circumstances, is unique, and the courts recognise this.
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