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Diversion Under Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act (NSW)

A defendant facing criminal charges in the New South Wales Local Court can make an application under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12 to have their charges dismissed upon being discharged into the care of a nominated responsible person. To be eligible for diversion under section 14, the defendant must have a mental health impairment and/or cognitive impairment.

What is a mental health impairment?

Under section 4 of the act, a person suffers from a mental health impairment if they have a significant temporary or ongoing disturbance of thought, mood, volition, perception or memory which impairs or impaired their emotional wellbeing, judgment or behaviour at the time of the alleged offending. The impairment may arise from disorders such as anxiety, depression, bipolar, a psychotic disorder, or a substance-induced mental disorder that is not temporary.

What is a cognitive impairment?

Under section 5 of the act, a cognitive impairment means an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory and that impairment results from damage to or dysfunction, developmental delay, or deterioration of the defendant’s brain or mind. The impairment may arise from conditions such as an intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol-related brain damage (such as fetal alcohol spectrum disorder) and autism.

What do I need to get into diversion under section 14?

In order to succeed in an application for diversion under section 14, the court should be furnished with a comprehensive forensic psychological or psychiatric report. A detailed Treatment / Support Plan must also be tendered along with written correspondence from the nominated responsible person acknowledging they are happy to supervise the defendant under the Treatment / Support Plan for the next 12 months. If the solicitor running the application does not tender a suitable Treatment / Support Plan, the application will almost certainly fail.

Plea of guilty or not guilty

A person can make a section 14(2) application regardless of whether they are pleading guilty or not guilty. However, if there is a likelihood that the application will be refused and the accused will be pleading guilty, it is advisable to enter the plea of guilty prior to making the application. This is because an accused is entitled to a discount on the basis that they entered a plea of guilty at an early opportunity. A plea entered after a section 14 application will attract a lesser discount.

What orders can the court make under section 14?

Under section 14 of the act, if the application is successful, the Presiding Magistrate can make one of the following orders:

  • Dismiss the charges and discharge the defendant into the care of the nominated responsible person; or
  • Dismiss the charges and discharge the defendant on the condition that they attend upon a person or a place specified by the Presiding Magistrate for assessment, treatment or the provision of support; or
  • Dismiss the charges and discharge the defendant unconditionally.

If any of the above three orders are made, this means the defendant has avoided a criminal conviction/s for the charge/s that were dismissed.

The Treatment or Support Plan & Responsible Person

The Treatment Plan will be in place for 12 months from the final court date.

The nominated responsible person is usually an individual (e.g. the defendant’s treating psychologist or psychiatrist or GP) but it can also include a clearly identified agency (such as a rehabilitation clinic) or even the defendant’s caseworker, carer, counsellor, or a family member. The role of the nominated responsible person is primarily to ensure the defendant attends relevant appointments, takes their medication as prescribed, and any non-compliance with the Treatment / Support Plan is reported to the court.

Under section 7 of the act, the Treatment or Support Plan means a plan outlining programs, services or treatments that may be required by the defendant to address their mental health issues.

FAQs about diversion under section 14

Can I make an application for diversion under section 14 if my case is in the District Court?

No. Section 8 of The Act makes it clear that this type of application is only applicable for matters in the Local Court.

What if the defendant does not have a mental health impairment or a cognitive impairment but he / she consumed an alcohol or illicit drugs when the offending conduct occurred? Can the defendant still apply for a section 14?

No. Section 5(3) makes it clear that a person does not satisfy the criteria if the person’s impairment is caused solely by the temporary effect of ingesting a substance. That means that drug or alcohol use alone is not enough to warrant the charges being dealt with under section 14.

What if the application is granted and they breach the 12 month Treatment or Support Plan?

Section 16 makes it clear that a person who breaches the court orders will be required to appear before a magistrate again and the matter will be dealt with as if the defendant had not previously been discharged under section 14. That means that a warrant can be issued for the person’s arrest and the magistrate will most likely deal with the matter under the criminal laws as it is rare for a person to be granted a second chance to comply with their Treatment / Support Plan.

Does the Magistrate consider other factors aside from the defendant’s mental health and the nature of the alleged offence?

Yes. Section 15 of the Act makes it clear that the magistrate may consider the following factors:

(a)  the nature of the mental health impairment or cognitive impairment

(b)  the nature, seriousness and circumstances of the alleged offence

(c)  the suitability of the sentencing options if the defendant is found guilty

(d)  relevant changes in the circumstances of the defendant since the alleged offence

(e)  the defendant’s criminal history

(f)  whether the defendant has previously been granted a similar order under mental health laws

(g)  the content of the treatment / support plan

(h)  whether the defendant is likely to endanger the safety of any parties involved in the case

(i)  other relevant factors.

As can be appreciated, successfully running a section 14 application is no easy feat and it is imperative that any defendant who is considering this avenue retain an experienced solicitor to run the application.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Elizabeth Tsitsos - Senior Associate - Sydney

This article was written by Elizabeth Tsitsos - Senior Associate - Sydney

Elizabeth is a highly accomplished defence lawyer with expertise in State and Commonwealth criminal matters including domestic violence, drug supply, sexual assaults including historical child sexual assault cases, and armed robberies involving joint criminal enterprises. Focusing her practice exclusively on criminal defence, Elizabeth has appeared for clients charged with murder, terrorism, sexual assault and drug supply, including cases involving large...

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