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Where am I now? Lawlink > Homepage > Consultation Paper 7 (2010) - People with cognitive and mental health impairments in the criminal justice system: diversion > Consultation Paper 7 (2010) - People with cognitive and mental health impairments in the criminal justice system: diversion
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Consultation Paper 7 (2010) - People with cognitive and mental health impairments in the criminal justice system: diversion
Preface
Table of contents
0.1 This Paper is the third consultation paper in the Commission’s reference on people with a mental illness or cognitive impairment in the criminal justice system. The focus of the Paper is diversion. The terms of reference require the Commission to assess s 32 and 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the “MHFPA”). These sections empower the Local Court to divert defendants with a mental illness or a developmental disability away from criminal proceedings and, potentially, into treatment or support services.1 While there appears to be general support for these provisions, criticisms have arisen about their scope and practical application. This Paper considers these criticisms and invites feedback on a range of possible reforms. As an ancillary matter, the Paper also considers briefly the powers to divert offenders with a mental illness or cognitive impairment at the preliminary stages of the criminal process, where the role of the police is critical to an offender’s entry into that process. The potential to divert offenders away from the traditional forms of sentencing, in particular imprisonment, into other kinds of sentencing options is considered in our Consultation Paper on Criminal Responsibility and Sentencing (“CP 6”).
0.2 This Paper is one of five consultation papers on this reference. The first four papers are released concurrently, and relate to:
- an overview of the laws affecting people with a mental illness or a cognitive impairment when they become involved as defendants in the criminal justice system (“CP 5”);
- the laws governing fitness to be tried and the defences relating to mental impairment (that is, the defence of mental illness, the defence of substantial impairment, and infanticide), which apply primarily to criminal proceedings in the Supreme and the District Courts, and the sentencing of offenders with a mental illness or cognitive impairment (“CP 6”);
- the laws relating to the diversion of offenders with a mental illness or cognitive impairment, focusing on the diversionary mechanisms available to the Local Court (“CP 7”); and
- the use of forensic samples taken from a defendant who is unfit to be tried or not guilty by reason of mental illness (“CP 8”).
0.3 The remaining consultation paper (“CP 9”) will be released subsequently. It relates to issues particular to young offenders with a mental illness or cognitive impairment.
0.4 Although we have separated out the issues for consultation into discrete papers, we are conscious of the need to consider the interrelationship of the various laws affecting defendants with a mental illness or cognitive impairment as they travel through the criminal justice system. In the case of diversion, for example, an important question raised in this Paper is whether the diversionary mechanisms available to the Local Court should be extended to the Supreme and the District Courts and whether this would impact on other laws operating in criminal proceedings in those courts. Following the release of the consultation papers, we will carry out extensive community consultation in order to prepare a report with our recommendations for reform. This report will draw together the wide range of matters raised in the consultation papers and assess whether there are advantages in forming an overarching, coherent legislative framework to deal with defendants with a mental illness or cognitive impairment in the criminal justice system.
FOOTNOTES
1. Sections 32 and 33 are reproduced in the Appendix .
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