A section 33 mental health diversion order is a mechanism available to magistrates in the Local Court of New South Wales. It allows the court to step away from the usual criminal process and redirect a defendant toward mental health treatment when an underlying condition contributed to the alleged offending. No conviction is recorded. The proceedings are adjourned, often indefinitely, giving the person a genuine pathway out of the criminal justice system.
Ann Valos Criminal Law Specialist advises clients on mental health diversion pathways regularly. Section 33 sits alongside section 32 and section 38 mental health diversion, but it operates differently in both its trigger and its effect. Understanding which pathway applies to your matter is not a minor detail; it can determine whether you leave court that day without a record.
What section 33 actually does
Section 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) gives a magistrate the power to adjourn criminal proceedings and order that a defendant be assessed or admitted to a mental health facility. The court can also direct that the defendant be dealt with under the Mental Health Act 2007 (NSW) as though they were an involuntary patient.
The order does not dismiss the charge. It suspends proceedings. The magistrate retains jurisdiction and can recall the matter if the defendant is discharged from the mental health facility or fails to comply with the care plan. In practice, many section 33 matters never return to court because treatment addresses the underlying issue, and the prosecution does not press to re-list the charge.
The key distinction from a section 32 mental health order is this: section 32 diverts the defendant into community-based treatment and discharges them at the point of diversion, whereas section 33 involves direct hospital admission and the defendant remains under the care regime prescribed by the Mental Health Act 2007.
When a magistrate can make the order
A section 33 order is available at any stage of summary proceedings in the Local Court, including before a plea is entered. The magistrate must be satisfied that the defendant appears to be a mentally ill person or a mentally disordered person within the meaning of the Mental Health Act 2007.
Three practical conditions usually need to be in place before an application is worth pressing:
- A mental health professional (typically a psychiatrist or psychologist) has prepared a report linking the defendant's condition to the offending conduct.
- There is a treatment pathway ready to receive the defendant, whether that is a public mental health facility, a private hospital, or a community mental health team.
- The charge is one that a magistrate is prepared to divert rather than record, given the seriousness of the alleged conduct and the circumstances.
Magistrates retain a discretion. Even where the threshold is met, they are not obliged to make a section 33 order. The strength of the psychiatric evidence and the credibility of the treatment plan both carry significant weight.
How it compares to other diversion pathways
New South Wales has a layered framework for defendants with mental health conditions. Section 32 diverts at the Local Court level into community care. Section 33 diverts into hospital-level care. Section 38 applies in the District Court and Supreme Court, where a judge finds a defendant unfit to stand trial and a special hearing is then conducted. These are not interchangeable options; each has its own statutory threshold and procedural pathway.
For defendants facing Local Court matters, section 32 is more commonly sought because it doesn't involve compulsory hospitalisation. Section 33 suits cases where the defendant's condition is acute and a higher level of care is plainly warranted. It can also benefit defendants in a practical sense: a clear hospitalisation order can demonstrate to a magistrate that appropriate treatment is both necessary and already organised.
What happens after the order is made
Once a magistrate makes a section 33 order, the defendant is taken to a declared mental health facility for assessment. From there, the treating clinicians determine the appropriate level of care. The criminal proceedings remain on foot but are adjourned. The court does not continue until the defendant is released from inpatient care or another trigger event occurs.
When the defendant is discharged, the facility notifies the court. The magistrate can then decide whether to proceed with the criminal matter, make a further order, or, in many cases, take no further action. A great deal depends on the progress the defendant has made in treatment and on the prosecutorial decision about whether pressing the matter still serves the public interest.
No criminal conviction is recorded at any stage of a section 33 diversion. If the proceedings are ultimately discontinued or the magistrate discharges the defendant without returning the matter to a criminal hearing, the person avoids the collateral consequences that flow from a conviction, including impacts on employment, professional licensing, and travel.
Preparing a section 33 application
The quality of the psychiatric evidence drives the outcome. A report that simply states the defendant has a mental illness is rarely sufficient. The report needs to identify the specific diagnosis, explain how it contributed to the alleged conduct, describe the proposed treatment, and address why diversion is appropriate given the facts of the charge.
Timing matters too. Raising the application before a plea is entered gives the most flexibility. It avoids locking the defendant into a position that may not serve them, and it signals to the magistrate from the outset that mental health is the central issue in the matter.
Ann Valos Criminal Law Specialist works with psychiatrists and psychologists who understand what Local Court magistrates need to see in a section 33 report. Ann Valos has over 15 years of experience appearing in criminal proceedings across New South Wales, and the firm's team holds accreditation as criminal law specialists through the Law Society of NSW. Getting the application right the first time is far more effective than trying to correct a poorly prepared one at a later mention.
If you are facing criminal charges and have a mental health history that contributed to the circumstances, speaking with an accredited specialist early gives you the best chance of identifying the right pathway before the matter progresses further.