The Law Handbook 2024

806 Section 8: Disability, mental illness and the law Enforcement Review Program This program no longer operates. Mental Health Advice and Response Service (courts) (MHARS) Run by Forensicare, MHARS is a court-based assessment and advice service that identifies and assesses people involved in a matter before the court who may have a mental illness. The service connects these people to an appropriate mental health facility. MHARS operates at the Magistrates’ Courts in Melbourne, Broadmeadows, Dandenong, Frankston, Heidelberg, Moorabbin, Ringwood and Sunshine. In November 2020, a MHARS pilot program was launched in the Melbourne County Court. Mental Health Advice and Response Service (courts) (MHARS) Tel: 9947 2500 Email (MHARS at the Magistrates’ Courts): info@forensicare.vic.gov.au Email (MHARS at the County Court): mharscounty@forensicare.vic.gov.au Web: www.forensicare.vic.gov.au/our-services/community- forensic-mental-health-services/court-mental-health- response-service/ Criminal Justice Diversion Program The Criminal Justice Diversion Program assists first- time offenders to avoid a criminal record by imposing conditions on the offender. These conditions are beneficial to the offender, the victim and the community. The offender does not need to enter a plea or appear in open court. A matter is eligible for diversion if: • the offence is triable summarily and not subject to a minimum or fixed sentence or penalty (except demerit points); • the accused acknowledges responsibility for the offence; • the prosecution consents to the matter proceeding by way of diversion. Prior convictions are taken into account when deciding if diversion is appropriate. The Criminal Procedure Act 2009 (Vic) (s 59) sets out the requirements of the diversion program. Diversion is an appropriate option if a person with a mental illness has committed a crime. Diversion may be suggested by the informant (i.e. the police officer who charged the person), their lawyer or the court. If the prosecution in a proceeding raises the option of diversion for an offender with a mental illness, they may have formed the view that the person’s disability impacted their offending. Therefore, there may be sufficient evidence to enter a defence of mental impairment (see ‘Defence of mental impairment’, below). The diversion program is also available to offenders with an intellectual disability. Offenders with an intellectual disability may also be eligible for a community corrections order (see ‘Intellectual disability’, below). In discussing diversion with the prosecution, it is advisable for the defendant to discuss their personal situation and circumstances, including employment status, any prior criminal history, any voluntary work performed within the community, an explanation for the offence, and the likely impact that a criminal conviction would have on the person’s life and future. The magistrate or judicial registrar can make a range of orders as part of a diversion plan, including: • apologising to the victim; • performing voluntary community work; • receiving counselling or other treatment; • paying compensation; • living at home; • not associating with certain people. If the court orders that an offender must not associate with certain people, section 12 of the Human Rights Charter (the right to freedom of movement) may apply. An argument might be made that such an order be moderated or not imposed, considering the balancing of rights that is called for in the Human Rights Charter. When a diversion plan is implemented, the charges are adjourned. When the case returns to court, if the person has met all the conditions of the diversion plan, the charges are discharged and no finding of guilt or conviction is recorded. If the conditions of the diversion plan are not met, the matter is referred back to the mention court or the Magistrates’ Court, as if the matter was being listed for the first time. All information about the diversion program is removed from the person’s file. Criminal Justice Diversion Program Web: www.mcv.vic.gov.au/find-support/diversion