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.

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.

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.

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].

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.

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.

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.

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:

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:

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.

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)].