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Magistrates Court Diversion Program

The Magistrates Court Diversion Program aims to address recidivism by providing assistance to defendants who suffer from a mental impairment to address their mental health and related offending behaviour. The program has been operating in South Australian Magistrates Courts since 1999.

As of May 2019, the Magistrates Court Diversion Program (‘MCDP’) is only operating in the regional courts located in Murray Bridge, Mount Gambier, Port Augusta and Whyalla.

In many other metropolitan Magistrates Courts, the program has been replaced with the Treatment Intervention Court - see Treatment Intervention Court.

Section 269 matters

The Magistrates Court Diversion Program should not be confused with the “section 269 court” which deals with defendants who have a limited defence based on mental health grounds under the Criminal Law Consolidation Act 1935 (SA), Part 8A. The hearing of section 269 matters are not intervention programs as such and are governed by the provisions of the Criminal Law Consolidation Act 1935 (SA), Part 8A [see ss 269C and 269H and Mental Health Issues chapter]. There is a specialist section 269 court which sits regularly - approximately fortnightly - in the Adelaide Magistrates Court. In suburban and regional courts section 269 matters are normally dealt with as they arise by a part-heard Magistrate.

By contrast, the Magistrates Court Diversion Program aims to assist those defendants who would not have available to them a mental incompetence or mental unfitness defence in accordance with section 269 of the Criminal Law Consolidation Act 1935 (SA), but who nevertheless suffer from some sort of mental impairment and their mental impairment has contributed to their offending behaviour.

It is worth noting, however, that it is not uncommon for defendants who do have a section 269 defence but are charged with only very minor offences to choose to seek acceptance into the Mental Health Diversion Program rather than proceed with a section 269 defence because the program offers practical support and monitoring of their disability over a period of time without the requirement to enter a plea of guilty.

Referral Process

Referrals for assessment for participation in this program are made from any originating court, and may be requested by the court, the defendant, prosecution, or defence counsel. A completed referral form must be handed to the clerk of the referring court, who will then forward the form to the diversion program. The matter is then transferred to the diversion court for the next available sitting day.

ASSISTANCE WITH OBTAINING LEGAL REPRESENTATION

Where a defendant is granted bail, it is important that the duty solicitor advise him or her to lodge an application for legal aid as soon as possible, and to include in it a note that they wish to apply for the Magistrates Court Diversion Program. Where a defendant is refused bail, it is important that the duty solicitor clearly mark the “urgent in custody” application at the top with “possible Magistrates Court Diversion Program applicant”. The file will then be assigned to the appropriate in-house solicitor.

UNREPRESENTED DEFENDANTS

Should a duty solicitor become aware of an unrepresented defendant who wants to apply for assessment for the Magistrates Court Diversion Program, or who has recently been diverted for assessment for the program, the defendant should be encouraged to apply for legal aid and to indicate in the application an interest in applying for the diversion program. The Legal Services Commission employs a number of solicitors who work regularly in that jurisdiction.

Where a duty solicitor has an unrepresented defendant who may be eligible for the diversion program and would be eligible for legal aid under the Means/Assets Test, but who has previously been refused legal aid on the grounds that the offence is minor and would not normally carry a risk of imprisonment, it is important that advice is given that the guidelines can, in appropriate cases, be waived. Legal aid may be granted as an exceptional case where the person suffers a mental health disability such that he or she would be disadvantaged if unrepresented. In such a case it is helpful for the duty solicitor to submit a request to Assignments asking that the guidelines be waived on the grounds of mental disability and disadvantage. This also applies to defendants with minor charges who may have an actual defence under section 269 but would not normally come within matter guidelines.

If the application for legal aid is granted following reconsideration, the matter would normally be assigned to one of the in-house solicitors who have experience with clients with mental health disabilities and who appear regularly in the Magistrates Court Diversion Program and the section 269 court. However, if an unrepresented defendant has previously been refused legal aid on Means (as distinct from the matter guidelines) you can best assist through the provision of the names and contact addresses of three private solicitors.

Eligibility criteria

The Magistrates Court Diversion Program targets people (over the age of 18) who have been charged with summary and/or minor indictable offence(s) and who have impaired intellectual or mental functioning.

Section 30 of the Sentencing Act 2017 (SA) defines mental impairment as ‘an impaired intellectual or mental function resulting from a mental illness, an intellectual disability, a personality disorder, or a brain injury or neurological disorder (including dementia) ’ [see s 30(5)].

Eligibility and acceptance into the program is a matter for the Magistrate’s discretion, but it is normally a requirement that there be at least a contributing connection between the defendant’s mental impairment and his or her commission of the acts charged. It is not necessary to show that the offence occurred ‘ in consequence of the mental impairment ’ as is required under the stricter provisions for a defence of mental incompetence under section 269C of the Criminal Law Consolidation Act 1935 (SA). The participant must also be prepared to plead guilty to the most serious offence(s) that they have been charged with.

Assessment report

Applicants are contacted by letter by the Diversion Program staff and are required to attend an appointment for assessment before their first appearance in the Diversion Court. Following their assessment interview, they appear in court with the recommendations of the assessment report made available to the sitting Magistrate, defence and prosecution. Applicants are assessed by the court’s Clinical Advisors who are qualified psychologists. The assessment report includes an assessment of the defendant’s personal and medical background and mental health functioning, a summary as to whether the applicant is suitable for the program and an outline of any specific needs to be addressed during the course of the program.

A Magistrate who is considering whether to accept a defendant into the Diversion Court Program, is not bound by the guidelines for the program [see H v Police (2005) 91 SASR 329; [2005] SASC 143]. The decision as to whether a defendant is to be accepted into the program is a matter for the court’s discretion. Even where the Preliminary Assessment Report indicates that the defendant is “not recommended” for the program, the court may still be persuaded by defence submissions that there are good grounds for allowing the defendant to participate.

Those defendants who are not accepted into the program, will have their matters sent back to the general court list for finalisation at a later date and retain their rights to conduct a defence in accordance with the Criminal Law Consolidation Act 1935 (SA) s 269 [see Mental Health Issues chapter].

Acceptance into program

It is a requirement that the defendant’s participation in the program, if accepted, be voluntary, and the defendant can only be accepted into the program if he or she is admitting the objective (factual) elements of the offence(s). The Magistrate will generally expect that the person plead guilty to the most serious offence(s) prior to accepting them into the program. Legal proceedings are adjourned for approximately two months to allow the defendant to access relevant support services, with the defendant attending court bi-monthly for progress reviews (there are usually two) conducted by the sitting Magistrate. A participating defendant is assigned a Clinical Liaison Officer who is there for support and to monitor the progress of the defendant.

Progress reports

Reports are provided to the Magistrate at approximately two month periods outlining progress, success and any difficulties or set-backs faced by the defendant for each review period. The court has discretion to extend the defendant’s participation in the program beyond the usual six months where the defendant may benefit from a longer period of participation.

Progress summary report and sentencing considerations

At the end of the defendant’s participation in the program, the court is provided with a report summarising the defendant’s progress and achievements during the course of the program. This report is considered during the subsequent sentencing of the defendant. Upon successful completion of the diversion program, where the defendant pleads guilty as charged, the Magistrate may consider finalising the charge without conviction or penalty, or may consider any other sentencing option. Where a penalty is likely to be imposed, the defendant retains the right to pursue a defence in accordance with the Crimnal Law Consolidation Act 1935 (SA) s 269 [see Mental Health Issues chapter]. The court also has an important discretion to simply dismiss any charge without a plea being taken or any finding of guilt recorded.

Without conviction or penalty

The Sentencing Act 2017 (SA) s 30(1) empowers a court to release a defendant who has been found guilty of a summary or minor indictable offence without conviction and without penalty where the court is satisfied that:

  • The defendant suffers from a mental impairment which explains and extenuates, at least to some extent , the conduct which constitutes the elements of the offence [see s 30(1)(a)(i); Dokowicz v Police [2008] SASC 154]; and
  • The defendant has completed or is participating in a satisfactory manner in an intervention program [see s 30(1)(a)(ii)]; and
  • The defendant recognises that he or she suffers from the mental impairment and is making a conscientious attempt to overcome the associated behavioural problems [see s 30(1)(a)(iii)]; and
  • Release of the defendant does not pose an unacceptable risk to the safety of a particular person or the community [see s 30(1)(b)].

Dismissal of the charge

In addition, section 30(2) of the Sentencing Act 2017 (SA) empowers a court to dismiss a charge of a summary or minor indictable offence without any plea being entered (such as where the matter has not been “finally determined”), where:

  • The defendant suffers from a mental impairment which explains and extenuates, at least to some extent, the conduct which constitutes the elements of the offence [see s 30(2)(a)(i); Dokowicz v Police [2008] SASC 154]; and
  • The defendant has completed or participated in a satisfactory manner in an intervention program [see s 30(2)(a)(ii)]; and
  • The defendant recognises that he or she suffers from the mental impairment and is making a conscientious attempt to overcome the associated behavioural problems [see s 30(2)(a)(iii)]; and
  • Release of the defendant does not pose an unacceptable risk to the safety of a particular person or the community [see s 30(2)(b)]; and
  • The court would not (if a finding of guilt were made) make an order for compensation for injury, loss or damage arising from the offence [see s 30(2)(c); s 120 whereby the court must not make an order for compensation if the defendant lacks the means to pay, or if payment of the amount would unduly prejudice the welfare of the defendant’s dependants].
MENTAL INCOMPETENCE OR UNFITNESS TO STAND TRIAL

In cases where the defendant would have a defence of mental incompetence or is unfit to stand trial under the Criminal Law Consolidation Act 1935 (SA) ss 269C or 269H, but has chosen to participate in the diversion program, it should always be submitted to the court that dismissal of the charge under s 30(2) is the only appropriate course, as the defendant should not enter a plea of guilty where a viable defence is available. If the court declines to proceed under s 30(2) counsel should respectfully submit that the matter must be referred to the pre-trial conference list to pursue an investigation under the Criminal Law Consolidation Act 1935 Part 8A [see ss 269C, 269H and Part 8A].

Release on undertaking to complete the program

In accordance with section 30(3) of the Sentencing Act 2017 (SA), where a defendant is participating in an intervention program but has not yet completed the program, a court may, instead of releasing the defendant under s 30(2), release the defendant on an undertaking that they will complete the program and then appear before the court for determination, or appear before the court for determination if they fail to complete the program [see Sentencing Act 2017 (SA) s 30(3)].

In the previous Criminal Law (Sentencing) Act 1988 (SA), this provision was not used, possibly because it would undermine the requirement that participation in a diversion program must be voluntary. Nevertheless, the provision still exists in the current Sentencing Act 2017 (SA), which came into operation on 30 April 2018.

Other sentencing options

Where ss 30(1) and 30(2) of the Sentencing Act 2017 (SA) are not raised, the court will proceed to sentence according to normal sentencing principles, but where a defendant has successfully completed the program the court may treat the defendant’s participation and achievements favourably as relevant to leniency in sentence [ see Sentencing Act 2017 (SA) s 11(6)]. However, the fact that a defendant has not participated in, or has performed badly in, or has failed to make satisfactory progress in an intervention program cannot be treated as an aggravating factor relevant to sentence [see s 11(7)].

Magistrates Court Diversion Program  :  Last Revised: Wed May 1st 2019