Crimes Act 1900

This section applies where, in proceedings to which this division applies before the Magistrates Court, that court is satisfied that—

the accused is mentally impaired; and

on an outline of the facts to be alleged in the proceedings, or any other evidence the Magistrates Court considers relevant, it would be appropriate to deal with the person under this division.

If this section applies, the Magistrates Court may by order—

dismiss the charge and require the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order or forensic mental health order; or

dismiss the charge unconditionally.

In determining whether to make an order under subsection (2) (a) or (b), the Magistrates Court shall have regard to—

the nature and seriousness of the mental impairment; and

the period for which the mental impairment is likely to continue; and

the extent to which by reason of the accused’s mental impairment the accused is likely to do serious harm to himself or herself or others; and

whether the ACAT could make an order under the Mental Health Act 2015, section 101 (Forensic psychiatric treatment order) or section 108 (Forensic community care order); and

the seriousness of the alleged offence; and

the antecedents of the accused; and

the effectiveness of any order previously made under subsection (2) (a) or (b), including to the extent to which—

the order assisted the accused to obtain appropriate treatment and care for his or her mental impairment; and

access to that treatment and care has enabled the accused to modify his or her behaviour, being behaviour of a kind that has previously resulted in the accused having been charged with an offence.

Despite subsection (2), the Magistrates Court may only make an order under that subsection in relation to proceedings with respect to an indictable offence that may be heard and determined summarily with the consent of the director of public prosecutions.

If the Magistrates Court makes an order under subsection (2) (a), the order operates as a stay of proceedings, or of further proceedings, against the accused in relation to the offence.

If the Magistrates Court makes an order under subsection (2), it must not make an order under any of the following provisions of the Crimes (Sentencing) Act 2005 for the offence:

section 13 (Good behaviour orders);

section 17 (Non-conviction orders—general);

section 19 (Reparation orders—losses and expenses generally);

section 20 (Reparation orders—stolen property).

An order under subsection (2) does not constitute a finding that an offence has or has not been committed.

In proceedings to which this section applies, to determine whether an accused has a mental impairment, the Magistrates Court may make any orders it considers appropriate, including the following:

that the accused submit to the jurisdiction of the ACAT;

that the proceedings be adjourned;

that the person be released on bail.

If the Magistrates Court makes an order under subsection (8) (a), the ACAT shall notify the Magistrates Court about each of the matters referred to in subsection (3) (a) to (d).