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Diversionary Orders for Offenders With Mental Illness


The content on this page was last reviewed on 10 October 2020.

1. Overview

Section 20BQ of the Crimes Act 1914 (Cth) provides a diversionary approach for a court of summary jurisdiction dealing with a person suffering from a mental illness or intellectual disability. 1

Section 20BQ(1) allows a court to dismiss the charge and discharge the person either conditionally or unconditionally, 2 or make further appropriate orders. 3

Section 20BQ:

Person suffering from mental illness or intellectual disability

(1)  Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:

(a)  that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and

(b)  that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law;
the court may, by order:

(c)  dismiss the charge and discharge the person:
(i)  into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or
(ii)  on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person’s mental condition, or for treatment, or
both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or
(iii)  unconditionally; or

(d)  do one or more of the following:
(i)  adjourn the proceedings;
(ii)  remand the person on bail;
(iii)  make any other order that the court considers appropriate.

(2)  Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.

(3)  Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB or 21B in respect of the person in respect of the offence.

In making an order for summary disposition under s 20BQ(1) the court may inform itself as it sees fit, but not so as to require the person charged to incriminate himself or herself. 4

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2. Meaning of Mental Illness

The term “mental illness” in s 20BQ was discussed in Kelly v Saadat-Talab [2008] NSWCA 213. Allsop P stated at [30] that a person will still be considered to have a mental illness despite the fact they are successfully being treated:

The mental illness spoken of in s 20BQ relates, as I would read the provision, to any underlying condition and someone would not cease to be mentally ill because of a stable regime of medication. 5

In DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, s 20BQ was applied in circumstances where the mental illness said to be suffered was described in the evidence as ‘[m]ajor depression with incongruent psychotic symptoms … moderate to high risk of suicide.’ 6

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3. Operation of s 20BQ(1)

Section 20BQ(1) is only available in proceedings in a state or territory court of summary jurisdiction in respect of a federal offence. In NSW, it has been held that s 20BQ operates to the exclusion of the equivalent NSW provisions. In Kelly v Saadat-Talab [2008] NSWCA 213 the Court considered that s 20BQ(1) was intended to be an ‘exhaustive statement’ of the Commonwealth Parliament’s “intended regime of treatment in summary jurisdiction of the mentally ill”. President Allsop (Ipp JA agreeing) reasoned at [29]:

If s 20BQ is not to be regarded as the only regime to deal with the subject of diversion from the criminal justice system by reference to mental illness, an effect will be brought about of the overlaying of similar, but differently expressed, regimes, involving (as here) different underlying policies. An examination of the terms of s 20BQ providing nominated conditions of application (involving policy considerations) and nominated responses, in the absence of which the criminal justice system will operate leads to the conclusion, in my view, that Division 8 was intended to be an exhaustive statement of the Commonwealth Parliament’s response to the issue dealt with, and thus for the purposes of the Judiciary Act, ss 68 and 79 a scheme complete upon its face leaving no room for the operation of the cognate State provision in the Mental Health (Criminal Procedure) Act, s 32 (and s 33) to be picked up as federal law. 7

3.1 When an Order May be Made

The language of s 20BQ is considered to set out a “two-stage process”. 8

In the first stage, the offender must be suffering from a mental illness within the meaning of the civil law of the state or territory 9  or suffering from an intellectual disability. 10

In the second stage, the Court must find that based on the outline of the facts alleged in the proceedings, or such other evidence the Court considers relevant, it would be more appropriate to deal with the person under this section than otherwise in accordance with law. 11

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3.2 Assessing Mental Illness

3.2.1 Meaning of ‘it appears to the court’

Section 20BQ(1) states that this section will only apply where ‘it appears to the court’ that the offender is suffering from a mental illness or intellectual disability.

In DPP (Cth) v Mahamat-Abdelqader [2017] NSWSC 1102, the Court held that the provision requires that a court be satisfied at the time of the hearing that the offender is suffering from a mental illness. McCallum J noted at [18]:

[T]here is an important difference between s 32 of the [Mental Health (Forensic Provisions) Act 1990 (NSW)] and its Commonwealth equivalent. Whereas the State provision permits the Court to consider an accused person’s mental state at the time of the offence, the Commonwealth provision focusses exclusively on the accused person’s state of mind at the time of the hearing (emphasis added).

3.2.2 Establishing mental illness at time of hearing

Where the offender can demonstrate a continuous episode of active symptoms leading up to their sentencing hearing, this may be sufficient to establish on the balance of probabilities that the offender suffers from a mental illness at the time of the hearing. 12 In DPP (Cth) v Mahamat-Abdelqader [2017] NSWSC 1102, the offender was convicted of escaping from immigration detention contrary to s 197A of the Migration Act 1958 (Cth). The offender arrived in Australia but was refused immigration clearance and later refused a protection visa claiming refugee status and was thus awaiting deportation. The sentencing judge dismissed the charge and discharged the offender into the care of the Department of Immigration and Border Protection under s 20BQ(1)(c)(i). McCallum J outlined the nature of the mental distress of the offender at [26] as recorded by officers at the immigration detention centre:

The note proceeds to record that Mr Abdelgader had since received the bad news about being unable to stay in Australia. It records very dark thoughts expressed by Mr Abdelgader as to what would happen to him if he were returned to Chad and as to the safety of his family. The note also records that Mr Abdelgader was very suspicious about the proposal to transfer him to the Queensland hospital, which he was concerned may be a plot to take him to Chad. Ultimately the psychiatrist concluded under the heading “Impression”:

Major depression with incongruent psychotic symptoms. Paranoid schizophrenia and paranoid personality should be ruled out. Poor compliance with medication. Moderate to high risk of suicide.

His mental state won’t improve if he stays in his current environment. There is a high risk of suicide. He refuses medication in detention centre because he is suspicious that food and meds are poisoned (emphasis in original).

There was also evidence the offender was refusing food and fluids. 13
The sentencing judge was satisfied of the chronic and ongoing nature of the offender’s mental illness. 14 McCallum J stated at [41]:

In my view, particularly having regard to the terms of s 20BR, the Magistrate in the present case was entitled to act on the probability that the chronic condition from which Mr Abdelgader undoubtedly suffered in early 2014 was one that continued as at the date of the hearing in the Magistrate’s Court … (emphasis added). 15

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4. Options Available to the Court

Where the court considers that ss 20BQ(1)(a)–(b) are satisfied, the court may dismiss the charge and discharge the offender or make alternative orders.

4.1 Section 20BQ(1)(c): Dismissal of charge and discharge

The court may, by order, dismiss the charge and discharge the offender:

  • unconditionally; 16 or
  • into the care of a responsible person unconditionally; 17or
  • into the care of a responsible person subject to conditions, for a specified period that does not exceed 3 years; 18or
  • on the condition that the person undergo assessment, or treatment, or both, for a total period that does not exceed 3 years. 19

4.2 Section 20BQ(1)(d): Alternative orders

The court may alternatively, by order, do one or more of the following:

  • adjourn the proceedings; 20 and/or
  • remand the person on bail; 21 and/or
  • make any other order that the court considers appropriate. 22

4.3 The effect of an order under s 20BQ

An order made under s 20BQ(1)(c) to dismiss the charge acts as a stay against any proceedings, or any further proceedings, against the person in respect of that offence. 23

Under s 20BQ(3), if the court makes an order pursuant to s 20BQ(1), it must not make an order, in respect of the offence, under the following provisions:

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5. The Relationship Between s 20BQ and s 19B

Section 19B empowers the court to discharge the offender without recording a conviction, 24 or conditionally discharge the offender without recording a conviction. 25

In Morrison v Behrooz [2005] SASC 142, Grey J observed at [44] that:

There appears to be little authority on the application of section 20BQ and its relationship with section 19B. However, the language of s 20BQ suggests that its scope is limited to circumstances where no plea has been entered. The section does not appear to contemplate a conviction being recorded. Section 20BQ appears to authorise a diversionary process in the case of mental illness. This analysis of the section would support the magistrate’s view that the section did not have application where a defendant is fit to plead (emphasis added). 26

In Commonwealth Director of Public Prosecutions v Seymour [2009] NSWSC 555, Simpson J declined to reconsider the correctness of Morrison v Behrooz [2005] SASC 142, as it did not arise for determination in that case. Senior Counsel for the defendant had invited the Court to depart from the decision in Morrison, and find that s 20BQ was available in circumstances where a plea had been entered. However, her Honour stated at [15]–[16]:

As I made plain during the course of Mr Hamill’s entreaties, I am firmly of the view that it would be quite wrong to take the course he proposes. Given the view I have reached on the principal issue, the applicability of s 20BQ does not arise for determination in this case. It would be a quite inappropriate exercise of the judicial function to embark upon an analysis, that could only be theoretical, of legislation that does not call for decision or application. That is the more so when what underlies the request is an invitation to one Judge to express the view that a considered judgment of a court of commensurate jurisdiction is wrong. I declined to accept the invitation, and declined to embark upon the analysis suggested.

I do, however, note that responsible senior counsel has raised for consideration a question of the construction of s 20BQ and the correctness of the decision in Morrison, that may arise for determination in another case.

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6. Enforcement

The Australian Law Reform Commission has noted that there are no enforcement mechanisms in the Crimes Act 1914 (Cth) for orders made under s 20BQ. 27

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Notes:

  1. See Boonstoppel v Hamidi [2005] SASC 248, [29].
  2. Crimes Act 1914 (Cth) s 20BQ(1)(c).
  3. Crimes Act 1914 (Cth) s 20BQ(1)(d).
  4. Crimes Act 1914 (Cth) s 20BR. See also DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, [20].
  5. Applied in DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, [41].
  6. DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, [26].
  7. See also DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, where McCallum J at [18] notes the differential operation of s 20BQ and s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  8. Boonstoppel v Hamidi [2005] SASC 248, [29]. This approach was followed in Potts v Bonnici [2009] SASC 199, [6].
  9. Crimes Act 1914 (Cth) s 20BQ(1)(a).
  10. Crimes Act 1914 (Cth) s 20BQ(1)(a).
  11. Crimes Act 1914 (Cth) s 20BQ(1)(a).
  12. DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, [41].
  13. DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, [22]–[23].
  14. DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, [29].
  15. See also DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102, [34]. See further [36]–[38] where McCallum J refers to the material which may aid the court in informing its opinion about the state of the mental health of the offender at the time of the hearing.
  16. Crimes Act 1914 (Cth) s 20BQ(1)(c)(iii).
  17. Crimes Act 1914 (Cth) s 20BQ(1)(c)(i).
  18. Crimes Act 1914 (Cth) s 20BQ(1)(c)(i).
  19. Crimes Act 1914 (Cth) s 20BQ(1)(c)(ii).
  20. Crimes Act 1914 (Cth) s 20BQ(1)(d)(i)
  21. Crimes Act 1914 (Cth) s 20BQ(1)(d)(ii)
  22. Crimes Act 1914 (Cth) s 20BQ(1)(d)(iii).
  23. Crimes Act 1914 (Cth) s 20BQ(2).
  24. Crimes Act 1914 (Cth) s 19B(1)(c)
  25. Crimes Act 1914 (Cth) s 19B(1)(d).
  26. See also Potts v Bonnici [2009] SASC 199.
  27. Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [28.10].