A joint project of the National Judicial College of Australia, the Commonwealth
Director of Public Prosecutions, and the Judicial Commission of NSW
Last Updated: 03 May 2012
The Crimes Act 1914 (Cth) makes available to the court alternatives in lieu of passing sentence when dealing with a person suffering from a mental illness. These options include:
Under s 20BV(1), the court may make an order that a person convicted of a federal offence reside at, or attend, a specified hospital in order to receive psychiatric treatment. This is known as a Psychiatric Probation Order.
To make a Psychiatric Probation Order the court must be satisfied that the person is suffering from a mental illness within the meaning of the civil law of that State or Territory: s 20BV(1)(a).
The court may, without passing sentence, make a psychiatric probation order where:
and the court is satisfied that:
The court must not make an order unless the person, or their legal guardian, consents to the proposed treatment: s 20BV(2).
Note: A Psychiatric Probation Order is made without passing sentence on the person. No other sentence may be imposed on the offender in relation to the same offence.
The psychiatric probation order must specify that the person reside at, or attend:
The treatment to be undertaken by the person may be varied on application: s 20BV(4).
A psychiatric probation order is subject to the following conditions:
Where a psychiatric probation order has been made and information is laid before a magistrate, before or after the end of the period in s 20BV(3), alleging the person has without reasonable excuse failed to comply, the magistrate may:
Where a person fails to comply with a summons or bail conditions, the court may issue an arrest warrant: s 20BW(2).
An arrest warrant authorises the detention of the person in custody until the person is released by order of the court: s 20BW(3).
Where a person has been arrested under a warrant and the court is not sitting, a magistrate may:
Where the court, in which the psychiatric probation order was made, is satisfied that a person has, without reasonable excuse, failed to comply with a condition of the order, the court may:
In determining what action to take, the court must, in addition to any other matters, take into account:
 R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [10.218].