A Defendant who faces Criminal Charges in the state of NSW can make an application pursuant to Section 14 of the Mental Health & Cognitive Impairment Forensic Provisions Act 2020 no 12 (‘The Act) for their matters to be diverted and dealt with pursuant to ‘The Act’ and if successful the defendant’s Charges can be dismissed upon being discharged into the care of a nominated responsible person.
The defendant must have a Mental Health Impairment and/or Cognitive Impartment to be eligible for Diversion pursuant to section 14 of ‘The Act.’
For Diversion under section 14 of ‘The Act’, the Court should be provided with a psychiatric report (or if possible) a Forensic Psychological report which will include a detailed Treatment plan, (if a detailed treatment plan is not tendered then the application will most certainly be unsuccessful) written confirmation from the nominated person who is responsible for supervising the defendant under the treatment plan over the 12-month period.
It should be noted that a person can make an application pursuant to section 14(2) regardless of whether the person is entering a plea of guilty or not guilty. It should also be noted that a plea of guilty which is entered after the section 14 Application is made may attract a lesser discount because the defendant is entitled to a discount on the basis that they have entered a plea of guilty at the earliest opportunity.
Orders the Court can make pursuant to section 14 of ‘The Act’?
If successful, meaning if the presiding magistrate is of the opinion that Diversion pursuant to ‘the Act’ is appropriate, the court can make one of the following orders (below) and if any of the following orders are made, this means that the defendant has avoided a Criminal Conviction for the Charges which have brought them before the court, as the court has dismissed them. These orders may include:
<![if !supportLists]>· <![endif]>Dismiss the Charge(s) and Discharge the defendant unconditionally
<![if !supportLists]>· <![endif]>Dismiss the Charges and Discharge the defendant into the care of the nominated responsible person; or
<![if !supportLists]>· <![endif]>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.
Mental Health Impairment?
Pursuant to section 4 of the Act, a person suffers from a ‘Mental Health Impairment’ if the person suffers from 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. It should be noted that such impairment may arise from Mental Disorders such as Depression, Psychotic Disorder, Dubstance-induced Mental Disorder (Which is not temporary), Anxiety etc.
Pursuant to section 5 of the Act, a ‘Cognitive Impairment’ is 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. This impairment may arise from conditions with respect to an acquired brain injury, drug or alcohol related brain damage, autism, intellectual disability, borderline intellectual functioning, dementia etc.
Treatment Plan? Support Plan?
A ‘Treatment Plan’ will be in place for a period of 12 months from the date of the Court Order (or in other words, from the final court date). Pursuant to section 7 of ‘The Act’ the Treatment Plan (or the Support Plan) is a written plan outlining the specific treatment(s), programs, or services which the defendant is required to undertake to address their Mental Health Issues.
Nominated Responsible Person?
A ‘Nominated Responsible Person’ is a person responsible for ensuring that the defendant adheres to the Court Order as specified and this includes ensuring that the defendant attends their appointments, (or takes any medication, if necessary, as prescribed by a Medical Practitioner) and the primary Responsibility of the Responsible Person is to report any non-compliance of the Treatment/ support plan to the Court as soon as reasonably possible.
A ‘Nominated Responsible Person’ is (usually) the defendant’s treating GP, Psychologist or Psychiatrist, however it should be noted that it could also include an agency such as a rehabilitation clinic, defendant’s case worker, family member, counsellor, or a Carer in general etc.
It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court.
Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.
*This article correctly reflects the Laws of NSW as at 5th October 2022.
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