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State Mental Health Diversion

Act & Section

Mental Health (Forensic Provisions) Act: s.32


Mental health diversion


Application before the Local Court


Alternative to punishment – NSW State offences


IMPORTANT NOTE: If you have a matter that is to be dealt with in the District or Supreme Court, this process, unless on appeal from the Local Court, cannot be utilised, an entirely different regime in s.4 – 30 needs to be referred to.

An application for diversion from the criminal punishment regime, sometime referred to as being “dealt with according to law” can only be made in respect of matters that will be finalised in the Local Court: s.31.

The application to seek diversion from the criminal punishment to treatment is laid out in s.32. Sometimes magistrates will require a plea to be entered, in short, the court can insist that you advise it whether you will plead guilty or not guilty should the s.32 application fail.

A s.32 application can be made at any time before the finalisation of a matter. It can be sought by an advocate appearing for a person or a magistrate can instigate their own investigation of the matter.

There are three mandatory tests that need to be satisfied in order to engage in a successful application:

1.     The jurisdictional test: does the person have, at court, or at the time of offending, a relevant “condition”, are they:

(a)   Cognitively impaired; or
(b)   Suffering from a mental illness; or
(c)    Suffering from a metal condition for which treatment is available in a mental health facility,

but is not a mentally ill person.

If a medical report is prepared and served on the court and the prosecution, stating the person suffers from such a condition, it is usual that the magistrate will be satisfied of the jurisdictional test.

However, there are some magistrates who form a view that only a psychiatrist can deliver such a diagnosis. This was certainly true for many years however the law has developed over time and the most recent decision of Jones and Anor v Booth and Anor [2019] NSWSC 1066 has made this point; though it does not say a psychologist will be appropriate in all circumstances – it will be fact dependent.

2.     The second test, sometimes called the balancing exercise is: based on the available facts alleged and other evidence and/or material the magistrate has chosen to inform themselves of, would it be more appropriate to deal with the applicant by diversion into treatment or punished according to law (which could include a non-conviction finding, with or without a conditional release order).”

In applying this test, the magistrate is not bound by the rules of evidence and take into account any information which, to them, applies relevant to the consideration of the question of the balancing test.

There is no absolute bright line on what makes an application successful. It is important to take into account, that while this application is available, it may be, in the circumstances of some matters, that to make such an application will be to diminish remorse and contrition; and thereby put other penalties out of reach. An example of this point is making applications in traffic offences. The court is loathed to grant such applications because of the public safety considerations.

3.     The third test is: is that a treatment plan which provides the court with some degree of comfort that the person is being assisted with their condition, such that it will guide and assist them not to offend again.

A treatment plan does not guarantee there will not be further offending, it also does not, and there are no reasons to suggest it should, guarantee the applicant’s condition will be cured. In some instances, the applicant will be suffering from a lifelong condition e.g. schizophrenia.

Although not a condition of the legislation, the application is more likely to be successful if the report writer undertakes to report any breaches of the treatment plan to the relevant authorities [see s.32A(2)], during the course of the Order – which is a for a maximum of 6 months. A treatment provider is specifically exempted from any legal or ethical restrictions on reporting breach of treatment plans by their patients by virtue of s.32A.

Following the application, the magistrate may do one of the following:

  1. Adjourn the proceedings,
  2. Grant bail,
  3. Make any other order the magistrate considers appropriate.

If the application for diversion is successful, the magistrate may make an order dismissing the charge and discharge the applicant:

  1. Into the care of a responsible person (often the doctor who will be monitoring the treatment plan), unconditionally or subject to conditions, or
  2. On condition the applicant attend on a person or at a place specified by the magistrate:
    1. for ass4essment, treatment or both of the applicant’s mental condition or cognitive impairment, or
    2. to enable the provision of support in relation to the defendant’s cognitive impairment, or
  3. unconditionally.

If an application is successful and the applicant fails to adhere to the magistrate’s orders, there are consequences:

  1. the magistrate may require the applicant to return to court,
  2. If the applicant fails to appear, issue a warrant for their arrest or direct a warrant to issue by an authorised officer,
  3. Deal with the applicant as if the discharge granted, was not granted, and issue a penalty at law.

If the application is successful, it will mean there is no finding of guilt and therefore no conviction; unless the orders are breached and the magistrate deals with the matter afresh as stated above.

For the purposes of the jurisdictional question:

cognitive impairment means ongoing impairment of a person’s comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person’s ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person’s brain or mind, and includes (without limitation) any of the following:

  1. intellectual disability,
  2. borderline intellectual functioning,
  3. dementia,
  4. acquired brain injury,
  5. drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
  6. autism spectrum disorder.

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