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Case Study: Dismissal of Charges on Mental Health Grounds

In this case study, we summarise our recent work for a client where serious charges relating to social security were dismissed on mental health grounds. In what were exceptional circumstances, the judge accepted Birchgrove Legal’s reasons that penalising our client would serve no deterrence and that the matter could be dealt with by way of a mental health treatment plan.

Case Study: Dismissal of Charges on Mental Health Grounds

In this case study, we summarise our recent work for a client where serious charges relating to social security were dismissed on mental health grounds. In what were exceptional circumstances, the judge accepted Birchgrove Legal’s reasons that penalising our client would serve no deterrence and that the matter could be dealt with by way of a mental health treatment plan.

In this case study, we summarise our recent work for a client where serious charges relating to social security were dismissed on mental health grounds. In what were exceptional circumstances, the judge accepted Birchgrove Legal’s reasons that penalising our client would serve no deterrence and that the matter could be dealt with by way of a mental health treatment plan.


Birchgrove Legal recently acted for a Canberra-based client who was charged with a Commonwealth fraud offence pursuant to s 135.1(5) of the Criminal Code (Cth) 1995.

The maximum penalty for this offence is 10 years.

The nature of the allegations by the Commonwealth Director of Public Prosecutions centred on our client receiving parenting payments from Centrelink for 26 fortnights, while working as an educator at a family day care centre.

Prosecution alleged that our client failed to report her income to Centrelink for over a year and was thus charged with the offence.

Our client pleaded guilty early in the process and we ran a s20BQ Application in the ACT’s Magistrates Court to have her fraud charge dismissed on the grounds of mental illness.

Section 20BQ of the Crimes Act 1914 (Cth) is the Commonwealth equivalent of s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which allows the court to consider one’s mental health at the time of the offending and to thus deal with the matter in a way other than what is required by law.

After extensive preparation and instructions from our client, we were able to convince the Magistrate that the devastating circumstances in our client’s life at the time of the offence were severe enough to satisfy the court that she should not be dealt with by law, and that the more appropriate penalty was a mental health treatment plan.

The Magistrate made findings that this case was truly exceptional, such that general deterrence would have little to no role to play in the sentence.

Accordingly, His Honour ordered that our client comply with the psychiatrist’s mental health treatment plan for a duration of 12 months and imposed no penalty.

For an incident that occurred over a 12-month period and involved in excess of $20,000 in fraud, this was a significant result. It reflected the facts of the case and their strong articulation by the Birchgrove Legal team, with the assistance of Counsel briefed.

In what were exceptional circumstances, the judge accepted Birchgrove Legal’s reasons that penalising our client would serve no deterrence and that the matter could be dealt with by way of a mental health treatment plan.
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