Earlier this year, a 36-year-old man was convicted of criminal trespass for breaking into his friend’s house and stealing his pet tortoise. Though such offences are punishable under the Penal Code with imprisonment for a term of up to 3 months, or with a fine which may extend to $1500, or with both, the offender in this case was sentenced to a 2-year Mandatory Treatment Order (“MTO”) instead.

This article will explain (i) what the MTO regime is, (ii) the consequences of an MTO order (iii) the qualifying/disqualifying criteria and (iv) the process for evaluating an offender’s suitability for MTO.

In a nutshell, MTO is a form of Community-Based Sentence (“CBS”). The CBS regime was introduced by the Parliament through wide-ranging amendments made to the Criminal Procedure Code in 2010. The function of CBS is to provide the courts greater flexibility in sentencing offenders involved in relatively minor offences. Through this scheme, in appropriate cases, courts can sentence an offender to a CBS in lieu of traditional sentencing options such as fines or imprisonment.

A Mandatory Treatment Order (MTO) is a form of CBS which requires an offender to undergo psychiatric treatment at the Institute of Mental Health (“IMH”) for a period not exceeding 3 years. The court retains discretion over the period of time an offender has to undergo treatment depending on the particular features of the offence and importantly, the offender’s condition. Upon completion of the MTO, the conviction will be considered ‘spent’. This means that the offender is deemed not to have a criminal record for that offence after successfully completing MTO.

In order to be eligible for MTO, the following conditions must be met:

• The offence committed must not have a fixed sentence by law or a specified or mandatory minimum sentence of imprisonment.
• The offence committed cannot be one which is punishable with imprisonment by more than 7 years or one which leaves a criminal record, which cannot be spent.
• The offender cannot have been previously sentenced to corrective training or preventive detention.

The offender will be required to attend mental health treatment sessions at IMH and must comply with any instructions or conditions given by the court and their appointed psychiatrist. The offender may also be required to stay in IMH itself to receive in-patient treatment, for either a specified part or the entire duration of the MTO. Although, in most cases treatment is done on an outpatient basis and even if there is a need for the offender to stay in IMH, it is unlikely that this will be for a significant period.

To assess and decide if an offender is eligible for an MTO, the court’s primary tool will be the final report of the court appointed psychiatrist. An offender may be remanded for observation in IMH for a period of up to 3 weeks or such period as the court deems necessary, or be ordered to attend an assessment in IMH, in order for the psychiatrist to produce the final report. An offender may also choose to appoint his own psychiatrist to produce a report on the offender’s eligibility. In such cases, the court appointed psychiatrist will take the offender’s psychiatric report into consideration when preparing the final report to be submitted to the Court.

The final report submitted by the court is imperative as the offender will be afforded an MTO only if it reflects that the offender

• suffers from a psychiatric condition;
• is susceptible to treatment;
• is suitable to receive treatment; and
• committed the offence, at least partly, due to the psychiatric condition (i.e there is a causal link).

In addition, the psychiatrist will also consider factors such as the offender’s likelihood to attend the treatment sessions, the offender’s physical and mental state and whether the offender has the financial means to make payment for the treatment sessions.

However, even if an offender is sentenced to an MTO, it is still in the court’s power to vary or revoke the MTO accordingly at any time. This may happen in situations where an offender reoffends while serving an MTO.

In the case mentioned earlier, the man who stole his friend’s tortoise was directed to undergo an MTO because the Court found that the man’s bipolar disorder has relapsed at the time of the offence, which may have affected his judgement and control. Other recent cases include a 21-year-old man who had a history of schizophrenic disorder and was convicted for stealing an ambulance and driving it to his girlfriend’s house. The offender in this case was also directed by the court to undergo a two-year MTO. In yet another case, a trainee doctor was directed to undergo a one-year MTO after being convicted for taking videos of men urinating. The court in this case found that the offender suffered from adjustment disorder which had contributed to the offences.

The MTO regime is, therefore, not an easy way out for offenders to attempt to avoid a custodial sentence. There is a strict process of assessment by the courts and a minimum threshold to meet to qualify for such a sentence. However, in appropriate cases, the MTO regime can be a powerful tool to address the root cause of the offender’s offending and it can even help prevent future re-offending.

PDLegal LLC thanks and acknowledges Practice Trainee Prabhu Jay for his contributions to this article.