Individuals charged with criminal offences heard in the Local Court of NSW may make an application, in appropriate circumstances, for the charges to be dismissed due to mental health and/or a cognitive impairment.
On 29 March 2021 the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 will commence, which provides new legislation for the making of such an application before the Local Court.
Under the Mental Health and Cognitive Impairment Forensic Provisions Act (the Act) a Magistrate may make an order to dismiss charges if, on an outline of the facts alleged in the proceedings, it would be more appropriate to deal with the individual charged (the defendant) in accordance with the Act than otherwise in accordance with the law as it applies to criminal offences.
Under Section 14 of the Act, if the Court is satisfied that it is appropriate to deal with the defendant under the Act, a Magistrate may order a dismissal of the charge and direct the defendant either:
- Into the care of a responsible person unconditionally or subject to conditions; or
- On the condition that the defendant attend upon a place specified by the Magistrate for assessment, treatment or for support of that person’s mental health impairment or cognitive impairment or unconditionally.
Factors to be considered
Section 15 of the Act provides a list of factors that the Court must consider when making an order. These include:
- The nature of the defendant’s mental health impairment or cognitive impairment.
- The nature, seriousness and circumstances of the alleged offence.
- The suitability of sentencing options available if found guilty of the offence.
- The relevant changes in the circumstances of the defendant since the alleged commission of the offence.
- The defendant’s criminal history.
- If the defendant has previously been subject to an order under the Act or under the Mental Health (Forensic Provisions) Act (the previous legislation).
- If a treatment or support plan has been prepared in relation to the defendant.
- Whether the defendant is likely to endanger the safety of any person.
- Any other factors relevant.
What happens if a breach of an Order occurs?
If a Court suspects that the defendant has failed to comply with an order, a Magistrate may, within 12 months of the order being made, require the defendant to reappear before the Magistrate.
If the defendant fails to comply with the conditions as set by the Magistrate, the Magistrate may thereafter deal with the defendant as if the defendant had not been discharged under the Act.
How long can an Order last?
A significant change under the new legislation is that the length of the order may now be made for up to 12 months (the previous legislation only allowed a period of 6 months). The benefit of this increase is that historically some Magistrates had expressed a hesitation to make an order in circumstances where the supervision period only lasted 6 months.
Is a treatment plan required?
It is important when preparing an application under the Act that a report from treatment providers is prepared. Whilst there is no formal requirement under the legislation for a treatment plan to be presented, almost all Magistrates will require that a treatment plan be prepared before accepting an application under the Act.
Why would the Court make an Order?
When considering whether or not to make an order, the Court is required to balance the public interest of those charged with a criminal offence facing the full weight of the law, against the public interest of treating or regulating to the greatest extent practicable, the conduct of individuals suffering from any mental health impairment or cognitive impairment.
There is public interest in individuals charged with criminal offences being supported in a meaningful way by a treatment plan which will require a defendant receive the care support that they need to address the underlying mental health difficulties. This will ensure that, as far as practicable, the same or similar criminal conduct will not occur in the future.
Whilst an order under the Act does not expose the defendant to a criminal punishment as such, it does involve the imposition of conditions restricting a person’s freedom of movement and actions.
Why should an application be made?
A successful application will result in any criminal charges the charges being dismissed, and no criminal conviction being recorded
It is important that if an individual is charged with a criminal offence, that they obtain detailed advice about all options available. Often applications under the Act are underutilised.
If you or someone you know has been charged with a criminal offence and requires assistance, please contact our firm and make an appointment with Matthew Carney on (02) 4944 3322.