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:
Dismiss the Charge(s) and Discharge the
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.
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
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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