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Section 32 Applications

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In most cases, when you appear at court having been charged with a criminal offence, you will be required to take one of two courses:

  • Enter a plea of guilty and be sentenced; or
  • Enter a plea of not guilty and proceed to a defended hearing.

In a limited number of cases, a matter may be ‘diverted’ out of this framework. One such way is through an application under section 32 of the Mental Health (Forensic Provisions) Act 1990. This section relates to people who are suffering from a mental disorder.



WILL I GET A CRIMINAL RECORD?

If the Magistrate grants an application under this section, the effect is that the matter is diverted out of the criminal justice system. The matter will be considered to be dismissed and there will be no criminal conviction recorded.

However, that is not to say that is the end of the matter. The Magistrate may decide that it is only appropriate to dismiss the charge on certain conditions. For example, that may be that you enter into a treatment plan for continued rehabilitation of the mental conditions, or that you be discharged under the care of a medical professional or mental health facility.

HOW DOES THE APPLICATION WORK?

There is a three step process in place before a Magistrate can determine whether or not to deal with the matter under section 32:

  • Question of Fact;
  • Balancing Exercise;
  • Treatment Plan.

If you, or someone you know, has been charged with a criminal offence and you believe that there are existing mental health and psychiatric issues it is imperative that you seek expert legal advice promptly.

Our solicitors work very closely with a number of expert psychologists and psychiatrists and will be able to refer you to an expert to obtain a psychiatric assessment, and provide a report to the Court in support of your section 32 application.

FIRST STEP - FINDING OF FACT - JURISDICTION QUESTION:

This step requires a factual determination. Section 32(1)(a) of the Act provides that you can only be dealt with under this section if at the time of either the offence or the Court date, you are not a mentally ill person, but you are:

  • Developmentally disabled;
  • Suffering from a mental illness; or
  • Suffering from a mental condition for which treatment is available in a facility.

For this step to be fulfilled, an assessment and court report from a qualified psychiatrist will be required. That report should detail the diagnosis, reasons for the diagnosis provided and a detailed treatment plan, at minimum.

SECOND STEP - THE BALANCING EXERCISE:

Once the first step is established, the Magistrate will then have to determine whether or not it would be more ‘appropriate’ to divert your matter or to deal with it ‘according to law’, this, requiring you to enter a plea of guilty or not guilty.

This is a matter for the Magistrate’s discretion. To make their decision, the Magistrate is allowed to take into account all factors that they consider ‘relevant.’ Given the wide scope provided by the legislation, the Magistrate has very wide powers in determining what is, or is not, appropriate.

Ultimately, the Magistrate must make a decision balancing two public interests: 1) the public interest in punishing an offender; and 2) the public interest in treating someone with mental health issues to ensure protection of the community.

Matters that the Magistrate often take into account in that determination include:

  1. The Offence. The Court will consider the type of offence, the circumstances in which the offence was committed, your actions and level of involvement.
  2. Moral Culpability: If a psychiatrist has established that there is the presence of a mental condition, it is relevant how that mental condition affected your actions on that night. This will go towards an assessment of your moral culpability, that is, how much ‘blame’ should be assigned to you for your actions.
  3. Sentence at Law: The Magistrate may take into account your prior good record, personal circumstances, and level of moral culpability and make a judgement as to what penalty they would have imposed at law if the matter were not diverted.
  4. Deterrence: It is well established in criminal law that offenders suffering from mental health issues are not appropriate vehicles for general deterrence, that is, punishing them may be ineffective in sending a message to the general community not to offend.
  5. Prospects of Rehabilitation: The Magistrate will always be concerned about further reoffending behaviour. If a detailed treatment plan is set out by a psychiatrist, there is more reason for the Magistrate to consider that you have higher prospects of rehabilitation.

THIRD STEP - TREATMENT PLAN:

After weighing up all the factors, if a Magistrate decides that it would be more appropriate to divert the matter under section 32, then the Magistrate must decide what conditions to impose, if any, before dismissing the matter.

The Magistrate can dismiss the charge and discharge the defendant:

  • Into the care of a responsible person, unconditionally or subject to conditions;
  • On the condition that you attend on a person or place (usually a treating psychiatrist or mental health facility) for assessment of your medical condition or treatment, or both; or
  • Unconditionally.

It is critical that that any psychiatric assessment and report provided contains a detailed treatment plan for the Magistrate’s consideration.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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