Diverting Mentally Disordered Offenders in the NSW Local Court

• NCJ Number: 225977
• Author(s): Tom Gotsis; Hugh Donnelly
• Date Published: March 2008
• Length: 57 pages
• Sale Source: Judicial Cmssn of New South Wales
• Publication Format: Book (Softbound)
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: Australia
• Note: Judicial Commission of NSW, Monograph 31

Annotation

This study analyzed the history and text of s 32 of the New South Wales (NSW) Mental Health (Criminal Procedure) Act 1990 in light of recent case law, presented the results from a survey of magistrates, and examined court data collected by the NSW Bureau of Crime Statistics and Research.

Abstract

Issues emerging from the analysis and survey were presented in the areas of (1) use of s 32 orders in the local court 2004-2006; (2) noncompliance; (3) the nature of the decision to divert under s 32(1); (4) ambiguity about the duration of ss 32(2) and 32(3) orders; (5) unfitness and s 32; (6) treatment plans; (7) coverage of s 32; and (8) resources debate. Highlights of the results include: (1) Section 32 of the Mental Health (Criminal Procedure) Act 1990 enables mentally disordered defendants facing criminal charges in the local court to be diverted by court from the criminal justice system; (2) amendments introduced to s 32 in 2004 empower a magistrate to call up a defendant within 6 months for a failure to comply with a condition of a s 32(3) order and were utilized rarely from 2004 to 2006; (3) it is firmly established in the case law that the decision to divert a defendant under s 32(1) is discretionary; (4) magistrates indicate that treatment plans were not always initially available or prepared to adequate standards; (5) concerns were raised by magistrates about the difficulties surrounding attempts to clearly define and diagnose mental disorders; and (6) magistrates expressed a general concern about the adequacy of resources and whether the policy objectives behind 32 were being undermined. Between 2004 and 2006, 2,711 persons dealt with in the local court were diverted from the criminal justice system by way of an order under s 32 of the Mental Health (Criminal Procedure) Act 1990. This report is three-fold. The history and text of s 32 is analyzed in light of recent case law. Survey results are presented from a survey of magistrates, and court data collected by the New South Wales (NSW) Bureau of Crime Statistics and Research are examined. Appendixes, bibliography, and index