On 26 May 2022, our office appeared at the Blacktown Local Court on behalf of a client charged with using carriage to harass Blacktown Police by making more than 400 calls to the Police station.
After taking our client’s instructions, our office came to the view that the client was suffering from mental illness and his matter would be appropriate to be diverted under a section 20 BQ Crimes Act 1914 (Cth) (20BQ) discharge.
As our client was charged with a federal offence, his matter could not be dealt with via what is referred to as a section 14 discharge which is applicable to NSW state offences.
In support of the application, our office was provided with a psychiatrist report which was 3 years old and did not contain a treatment plan and a letter from our client’s treating psychologist which was 8 months old and also did not contain a treatment plan.
For a successful discharge under 20BQ or any mental health diversion, the following are necessary:
- Diagnosis of mental illness, intellectual disability, mental condition,
- A treatment plan, and
- Strong submissions as to why the Court should discharge the person to the care of a responsible person rather than dealing with the matter under Criminal Law.
Our office made strong submission on our client’s mental illness notwithstanding the dated report with the ultimate submission that Schizophrenia is not a transient condition which the Court accepted.
The Court was hesitant in the 20BQ discharge due to the lack of a treatment plan and our office submitted that while a treatment plan is ideal, it is not necessary, or a must under the legislation and the Court can exercise its discretion. In support of this submission our office tendered the judgement of Justice R A Hulme in Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 where at paragraph 37 of the judgement, his Honour discusses treatments plans for such applications and states:
“While not stated explicitly in the legislation, I infer that, like in the cases just referred to, it was contemplated that a magistrate would be provided with a plan containing some detail as to what was proposed for assessment of the defendant’s mental condition or treatment or both.” (Underlined added)
Our office submitted that the language of his Honour’s finding was not definitive on the issue of treatment plans and the Court has discretion to make a 20QB order without a treatment plan.
The Court accepted our submissions and dismissed the charge against our client and released him in the care of his psychologist for 15 months. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales and Victoria. Our team is ready to assist you with your Criminal, ADVO or AVO matters. If your matter is at Blacktown Local Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner
