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Section 20BQ: Mental Health Applications for Commonwealth Offences

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Section 20BQ of the Crimes Act 1914 (Cth)  allows a person who is charged with a criminal or traffic offence and suffers from a mental illness or intellectual disability at the time of their court hearing to avoid a criminal record.

A section 20BQ order may be unconditional, but more commonly comes with conditions such as undertaking a mental health treatment or support plan.

These plans often involve seeing a general practitioner and taking prescribed medication, regularly seeing a treating psychologist and engaging in therapy, such as cognitive behavioural therapy.

The plans can last for up to 3 years.

The important thing is that a successful section 20BQ application means there is no conviction and no finding of guilt.

If you have been charged with a criminal or traffic offence and believe you may be suffering from a mental health issue, call Sydney Criminal Lawyers anytime on (02) 9261 8881 and let our experienced defence team support and guide you through the process, thoroughly prepare and persuasively present your case in court.

We offer a free first conference and fixed fees for mental health applications.

What is a section 20BQ application?

A ‘section 20BQ application’ is an application made under section 20BQ of the Crimes Act 1914 (Cth), for the court to dismiss the charge or charges brought against and discharge you either conditionally or unconditionally, or make other orders that are deemed appropriate by the court.

What types of charges can I make a section 20BQ application for?

A section 20BQ application can be made for all Commonwealth charges, such as those under the:

  • Criminal Code Act 1995,
  • Customs Act 1901, or
  • Corporations Act 2001.

What are the benefits?

A successful section 20BQ application means your charges will be dismissed and you will avoid a criminal record.

Significantly, there will also be no finding of guilt.

Essentially, it allows you to move on with your life, conviction-free and without any finding of guilt being made against you

What do I need to establish to get a section 20BQ order?

To succeed with a section 20BQ application, you will need to persuade the court that:

  1. You are suffering from a mental illness or intellectual disability within the meaning of the civil law of the state or territory of the court you are before, and
  2. It is more appropriate to deal with you under the section than otherwise in accordance with the law.

It is important to note that the relevant time for assessing a person’s mental health is the time of the hearing, not the time of the alleged offence.

What is a mental illness?

A ‘mental illness’ a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence of any one or more of the following symptoms:

• Delusions,
• Hallucinations,
• Serious disorder of thought form,
• Severe disturbance of mood,
• Sustained or repeated irrational behaviour indicating the presence of any one or more of the above symptoms.

What is an intellectual disability?

The legislation does not define ‘intellectual disability’.

However, the most commonly used definition is:

“a disability characterised by significant limitations in both intellectual functioning and in adaptive behaviour, which covers many everyday social and practical skills. This disability originates before the age of 18”.

What does the court look at when deciding a section 20BQ application?

When deciding a section 20BQ application, the magistrate may consider:

  • The nature and severity of your mental illness or intellectual disability,
  • The nature, seriousness and circumstances of the alleged offending,
  • Any relevant change to your circumstances since the alleged offending,
  • Your criminal history or lack thereof,
  • Whether you have previously received an order under the section or an equivalent section,
  • Whether a treatment or support plan has been prepared in relation to you, and
  • Whether it is in the community’s interests to divert you away from the criminal justice system and into treatment.

The relevant time for assessing these matters is the time of the hearing, not the time of the alleged offence.

What orders can the court make?

The court may dismiss the charge and discharge you:

  • Unconditionally,
  • Into the care of a responsible person unconditionally,
  • Into the care of a responsible person subject to conditions, for a specified period that does not exceed 3 years, or
  • On the condition that the person undergo assessment, or treatment, or both, for a total period that does not exceed 3 years.

Alternatively, the court may:

  • Adjourn your case,
  • Refuse bail and remand you in custody, or
  • Make any other order it considers appropriate.

Who may be a responsible person?

A responsible person may be a health professional such as a treating psychologist, psychiatrist, counsellor or, in some cases, a general practitioner, parent or family member.

How long does a treatment plan last?

The court can order that you are discharged into the care of a responsible person, or undergo treatment, for a total of up to 3 years.

Can my case be adjourned to undertake treatment or support?

Yes. The magistrate may allow you to adjourn your case to enable:

  • You to be assessed or diagnosed,
  • Your mental health treatment or support plan to be developed, or
  • A responsible person to be identified.

A magistrate may also make any other court that the court considers appropriate.

What happens if I breach my section 20BQ order?

If you fail to comply with the order, you may be brought back before the court and dealt with in the normal way; which can expose you to the prospects of a criminal record and other penalties.

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