It is possible to seek to be diverted from the criminal justice system if you have a mental health condition that satisfies the legal criterion and the courts are of the view there is a connection between the offending and the condition. You will still need to attend court for this application to be made.
Every application for a mental health diversion requires the court to be satisfied that a relevant mental health condition exists, this will always require a report from a suitably qualified professional. Until recently the law required this report to be prepared by a psychiatrist, however, some recent law has confirmed an appropriately qualified clinical psychologist’s evidence may also be acceptable.
A diversion from the criminal justice system, known as a s.32 Mental Health (Forensic Provisions) Act application (under NSW law) or a s.20BQ Crimes Act application (under Federal law) is only available for offences that are finalised before a magistrate in the Local Court of NSW. If the matter is an indictable matter being dealt with before the District Court, such an application is not available. There is a regime in the District Court, but it is very different in character and result.
The regime, State of Federal, that is available, will depend on the offence you are charged with. It is important to remember, the State scheme requires that the person was suffering from a mental condition at either, the time of the offending or whilst before the court. The Federal scheme requires the mental condition to be present whilst the offender is before the court, only.
An application requires the court to be satisfied of the following three tests:
- The person is suffering from a relevant condition; and
- The public interest in diverting the person from the criminal justice systems outweighs the public interest in the person being punished for the offending; and
- There is a treatment plan for the person to follow towards rehabilitation.
Mental health diversion applications are all case by case arguments on their specific facts. The more serious the offending, the less likely it is that a magistrate will be convinced this is a reasonable course to follow. Such applications are rarely successful in motor vehicle matters. Sometimes, the facts are suggestive that even though the application may be available, it may not be in the best interests to the offender to adopt this course: it is important you engage with a lawyer with extensive experience in this area.