Mental Health and Cognitive Impairment Forensic Provisions Act 2020

[90-000] Introduction

Last reviewed: May 2023

The interaction between persons suffering mental health conditions and the criminal justice system is well documented as being difficult and often requiring what former Chief Justice Gleeson described in R v Engert (1996) 84 A Crim R 67 as a “sensitive discretionary decision”. This chapter discusses the penalty options available to the court when dealing with persons with a mental health or cognitive impairment, as set out in Pts 4 and 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). For a discussion regarding the application of the Act to summary proceedings (Pt 2 of the Act) see the Local Court Bench Book at [30-000].

The Act, which commenced on 27 March 2021, replaced the Mental Health (Forensic Provisions) Act 1990 (the 1990 Act) and relevantly applies to:

  • proceedings which had commenced but were not completed before 27 March 2021 if the defendant’s unfitness to be tried was raised before then

  • an inquiry or special hearing which commenced under the 1990 Act but was not completed before 27 March 2021: Sch 2, Pt 2, cl 7.

The 1990 Act continues to apply to “existing proceedings” which are criminal proceedings in which the court has, before 27 March 2021, nominated a limiting term but not made an order under s 27 of the 1990 Act: Sch 2, Pt 2, cl 7A; see discussion of limiting terms at [90-040]. A person who, immediately before 27 March 2021, was a forensic patient under the 1990 Act is taken to be a forensic patient within the meaning of the Act: Sch 2, Pt 2, cl 9.

Unless otherwise specified, references to sections below are references to sections of the Mental Health and Cognitive Impairment Forensic Provisions Act.

Cases decided before the Act commenced, addressing those aspects of the 1990 Act which were unchanged, remain useful. The references in those cases to the old provisions have been updated to reflect the current legislation.

For detailed commentary on unfitness and special hearings, see the Criminal Trial Courts Bench Book: Procedures for fitness to be tried (including special hearings) at [4-325]ff.

[90-010] Part 4 — Criminal proceedings in the Supreme and District Courts

Last reviewed: May 2023

Part 4 of the Act applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and criminal proceedings in the District Court: s 35.

[90-020] Section 42(4) dismissals

Last reviewed: May 2023

Section 42(4) of the Act provides that where a question of fitness to be tried arises the court may determine not to hold an inquiry, dismiss the charge and order that the defendant be released if it is inappropriate to inflict any punishment because of:


the trivial nature of the charge or offence, or


the nature of the defendant’s mental health impairment or cognitive impairment, or


any other matter the court thinks proper to consider.

Punishment includes the recording of a conviction and the orders of the court after a special hearing: Newman v R [2007] NSWCCA 103 at [41].

The section is expressly directed to the appropriateness of the infliction of punishment: Newman v R at [36]. The court is required to approach s 42(4) assuming there would be a finding of guilt by either of the two courses which can flow from a fitness hearing: a conviction at trial if a person is found to be fit to be tried; or a qualified finding of guilt at a special hearing if a person is found to be unfit. If the court would not impose any punishment, the proceedings should be dismissed without the need for a fitness hearing: Newman v R at [46]. The purpose of s 42(4) is to avoid the expense and delays associated with fitness hearings where the court would ultimately not inflict any punishment: Newman v R at [40].

Section 42(4) is in similar terms to s 10(3) of the Crimes (Sentencing Procedure) Act 1999. In each case, the ultimate power of the court is to dismiss a charge that has been, or may be, proven. An equivalent test of “inexpedient” to inflict any punishment applies under s 10(2) Crimes (Sentencing Procedure) Act. The list of matters to which the court may have regard is also similar, including the nature of the person’s condition and the trivial nature of the charge: s 42(4); s 10(3) Crimes (Sentencing Procedure) Act; Newman v R at [46].

Newman v R was applied in R v Chanthasaeng [2008] NSWDC 122, a drug supply case, where an application for a s 10(4) (now s 42(4)) order was refused.

[90-030] Special hearings and sentencing options

Last reviewed: May 2023

Special hearings aim to ensure that a defendant who is found unfit to stand trial is acquitted unless it can be proved that they committed the offence charged: s 54. For this reason, the defendant is taken to have pleaded not guilty to the offence charged (s 56(5)) and the special hearing is conducted as “nearly as possible” to a regular criminal trial (s 56(1)).

A verdict that the defendant committed the offence (or an alternative offence) charged (s 59(1)(c), (d)) is a “qualified finding of guilt” made in the absence of a conviction (s 62(a)). If such a qualified finding of guilt is made, and the court would have imposed a sentence of imprisonment if the special hearing had been an ordinary trial, the court must nominate a term it would have imposed on the defendant (a “limiting term”): s 63(2). See [90-040] Limiting terms.

If a court indicates that it would not have imposed a sentence of imprisonment, it may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in ordinary criminal proceedings: s 63(3). The phrase “any other penalty” includes sentencing options found in the Crimes (Sentencing Procedure) Act 1999: Smith v R [2007] NSWCCA 39 at [61]; but not imprisonment and its alternative forms: Warren v R [2009] NSWCCA 176 at [19]–[20]. Where the court indicates it would not have imposed a sentence of imprisonment, it must notify the Mental Health Review Tribunal (the Tribunal) that a limiting term is not to be nominated in respect of the person: s 63(6).

In determining a limiting term or other penalty, the court:

  • must take into account that, because of the defendant’s mental health impairment and/or cognitive impairment, they may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount: s 63(5)(a), and

  • may apply a discount of a kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea: s 63(5)(b), and

  • must take into account periods of the defendant’s custody or detention before, during and after the special hearing that related to the offence: s 63(5)(c).

Reports about defendant

Following a verdict being reached at a special hearing, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public: s 66(1). The court may consider the report before making orders about the defendant: s 66(2).

[90-040] Limiting terms

Last reviewed: May 2023

Limiting terms are sentences imposed by Supreme and District Courts at the conclusion of special hearings. Section 63(2) defines a limiting term as the best estimate of the sentence the court would have imposed if the special hearing had been an ordinary trial and the person had been fit to be tried for the offence. A person serving a limiting term is a forensic patient: ss 3, 72(1)(b).

Purpose of limiting terms

A limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing: R v Mitchell [1999] NSWCCA 120 at [30]. As the court in R v Mailes (2004) 62 NSWLR 181 at [32] said, the purpose of a limiting term:

… is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial …

A limiting term is a sentence for the purposes of s 5(1)(c) Criminal Appeal Act 1912 by reason of the definition of “sentence” in s 2 of that Act: R v AN [2005] NSWCCA 239 at [2]. In determining the limiting term for a particular offence, courts should adopt and apply all the statutory and common law principles that apply to the sentencing of a person convicted of that offence: R v AN at [13]. This includes the purposes of sentencing under s 3A Crimes (Sentencing Procedure) Act 1999, ensuring the offender is adequately punished (s 3A(a)): R v Mailes at [32]; R v AB [2015] NSWCCA 57 at [41]. It should also be borne in mind that the purposes of general deterrence and denunciation under s 3A may be irrelevant to an offender with a mental illness or disability: R v AB at [42], [45]. Where the accused is a child, the principles relating to the exercise of criminal jurisdiction in respect of a child contained in s 6 Children (Criminal Proceedings) Act 1987 will be relevant: R v AN at [21].

Non-parole periods not applicable

Section 63(2) of the Act only requires the nomination of a total term and does not permit the imposition of a non-parole period. Section 64(2)(a) further provides that a “… sentence of imprisonment imposed in an ordinary trial of criminal proceedings may be subject to a non-parole period but a limiting term is not.” R v Mitchell at [21]; R v Mailes at [22] and [29]; R v AN at [13] dealing with the similar provisions of the 1990 Act supported this proposition.

Standard non-parole periods

The standard non-parole period statutory scheme does not apply to the sentencing of an offender to detention under the Mental Health and Cognitive Impairment Forensic Provisions Act: s 54D(1)(b) Crimes (Sentencing Procedure) Act.

Limiting terms not to be reduced because of absence of non-parole period

The absence of a non-parole period does not affect the term of the head sentence that would otherwise have been imposed and in relation to which the limiting term is to be set: R v Mailes at [43]. There is no logical reason for reducing it simply because there is no provision for a non-parole period: R v Mailes at [43]. To do so ignores and undermines the different features and objectives of regular sentences and limiting terms: R v Mailes at [44]; R v Mitchell at [32].

Limiting terms not to be reduced because of poor prospects of early release

Evidence of practical issues concerning the difficulties faced by persons serving limiting terms in obtaining early release does not affect the requirement in s 63(2) to set limiting terms by reference to the head sentence that would have been imposed following a guilty verdict in a proper trial: R v Mailes at [43]; R v Mitchell at [31], [64]. The court should not attempt to make any estimate of the degree of likelihood of an offender being released: R v AN (No 2) (2006) 66 NSWLR 523 at [74]; R v AN at [65].

Relevance of mental health or cognitive impairment to length of limiting terms

An offender’s mental health impairment or cognitive impairment is relevant to the length of the limiting terms in at least three ways:

  • the applicant’s culpability

  • the likelihood of re-offending

  • the protection of the community.

Precisely how each affects the length of a limiting term depends on the circumstances of each case: R v AN at [3], affirming R v Engert (1995) 84 A Crim R 67. In R v AN the uncontradicted evidence about the offender’s mental condition and its impact on his offending meant that, when determining the length of the limiting term to be imposed, the offender’s mental condition was a “highly significant” consideration: at [38]. The protection of the community is often an important consideration. The level of danger which a mentally ill offender presents to the community is a countervailing consideration to all other relevant sentencing principles: Courtney v R [2007] NSWCCA 195 at [26], [59], [83]; Agha v R [2008] NSWCCA 153 at [24].

McClellan CJ at CL said of the sentencing exercise in Bhuiyan v R [2009] NSWCCA 221 at [30]:

… although in most cases the serious mental illness will have deprived an offender of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the offender. The particular difficulties faced by an offender which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the offender before the limiting term has expired.

Date of commencement, concurrency and consecutiveness

In determining a limiting term, the court must take into account periods of the defendant’s custody before, during and after the special hearing relating to the offence: s 63(5)(c).

A limiting term takes effect from when it is nominated unless the court:


determines it is taken to have effect from an earlier time, after taking into account periods of the defendant’s custody or detention before, during and after the special hearing that related to the offence, or


directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated for the person or sentence of imprisonment imposed on the person: s 64(1).

When making a direction that the term commence at a later time, the court is to take into account that:

  • a sentence of imprisonment imposed in an ordinary trial of criminal proceedings may be subject to a non-parole period, a limiting term is not (s 64(2)(a)); and,

  • in an ordinary trial of criminal proceedings, consecutive sentences of imprisonment are imposed with regard to non-parole periods (s 64(2)(b)).

Limiting terms and alternative forms of imprisonment

Section 63(2) of the Act requires the nomination of a limiting term and does not contemplate the imposition of alternative forms of imprisonment: Warren v R [2009] NSWCCA 176 at [20].

Limiting terms and referral to Tribunal

The court must refer the defendant to the Tribunal if it nominates a limiting term and must notify the Tribunal of the orders it makes: s 65(1). The court may order the defendant be detained in a mental health facility, correctional centre, detention centre or other place pending the review of the defendant by the Tribunal: s 65(2).

Extension and expiration of limiting terms

When a person’s limiting term expires (where that term is less than life), they will cease to be a forensic patient: s 101(e). However, the Minister administering the Act may apply to the Supreme Court for an extension order against a forensic patient where they are subject to a limiting term or an existing extension order: ss 123, 124(1). Such an application may not be made more than six months before the end of the forensic patient’s limiting term or expiry of the existing extension order: s 124(2). The Supreme Court may order an extension if satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others, and that risk cannot adequately be managed by less restrictive means: ss 121, 122.

The requirements for an application for an extension order are set out in s 125, and pre-hearing procedures are set out in s 126. If, following a preliminary hearing, the Supreme Court is satisfied the matters alleged in the supporting documentation would, if proved, justify making an extension order, the court must make orders appointing certain qualified persons to conduct examinations: s 126(5). In determining whether an extension order should be made or the application should be dismissed under s 127(1), the court is to consider a number of factors including the safety of the community, the reports received, and the forensic patient’s level of compliance with any obligations they were subject to: s 127(2).

In Attorney General for NSW v Bragg (Preliminary) [2021] NSWSC 439, the Attorney General made an application for an extension order under s 123. In ordering a three-month extension, Wright J considered aspects of the relevant provisions and stated the following propositions (citations omitted):

  • The “high degree of probability” referred to in s 122 indicates the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of “more probable than not”, but does not have to be proved to the criminal standard of “beyond reasonable doubt”: [25].

  • The “serious harm” which must be considered is not limited to physical harm and it may include psychological harm. Whether such harm is “serious” within the meaning of s 122(1) will depend on whether it is such harm as should attract consideration given the objects, scope and terms of Pts 5 and 6 of the Act: [26].

  • Whether the risk of causing serious harm to others is “unacceptable” is to be judged according to its ordinary or everyday meaning and the right of a person to their personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an “unacceptable risk”: [27].

  • The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition, based on an absence of protective measures: [28].

  • In order to determine that the person poses an unacceptable risk of causing serious harm to others, the court need not be satisfied that the risk is more likely than not: [30]; s 122(2) of the Act.

Wright J also observes in Attorney General of NSW v Bragg (Preliminary) at [18] that the provisions concerning preliminary hearings in the Act do not differ in material respects from the corresponding provisions in the Crimes (High Risk Offenders) Act 2006 and, accordingly, authorities concerning that other legislation can be of considerable assistance in applying the Act’s provisions, having regard to the different circumstances and context in which the latter Act operates.

An extension order commences when it is made, or when the limiting term expires, whichever is the later: s 128(1)(a). It cannot exceed 5 years, but a second or subsequent application for extension can be made: s 128(1)(b), 128(2).

When a person’s limiting term expires and no extension application is made, they must be discharged unless classified as an involuntary patient under Ch 3 of the Mental Health Act 2007: ss 107(1), 108, (also see Note in s 122). Under the review process established in Pt 5, Div 3, a person may be released by the Tribunal prior to the expiration of their limiting term: ss 81–85.

[90-050] Part 2 — Summary proceedings

Last reviewed: May 2023

See [30-000] Inquiries under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 in the Local Court Bench Book for detailed commentary of such proceedings.