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Mental Impairment and Section 32 Applications

In most cases, when a person appears at court in New South Wales having been charged with a criminal offence, he or she will generally be required to 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, which applies to people who are suffering from a mental illness, cognitive impairment or a mental condition for which treatment is available in a mental health facility.

How does the application work?

There is a three-step process that takes place before a magistrate can allow an application under section 32.

Step 1. Finding of fact

This step requires a factual determination that either the defendant is or was at the time of the alleged commission of the offence:

  • cognitively impaired; or
  • suffering from mental illness; or
  • suffering from a mental condition for which treatment is available in a mental health facility.

However, this does not necessarily mean that the offender is a “mentally ill” person in the sense that care, treatment or control of the person was necessary for the person’s own protection or for the protection of others.

For this step to be fulfilled, an assessment and court report from a psychologist or psychiatrist (as appropriate in the circumstances) will be required. That report should detail the diagnosis, reasons for the diagnosis provided and a detailed treatment plan.

Step 2. 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 the matter or to deal with it “according to law”, requiring the person to enter a plea of guilty or not guilty, if they have not already entered a plea.

This is a decision at 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 when diversion is, or is not, “more 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 having a person with mental health issues be diverted away from the criminal justice system and/or receive treatment.

Matters that magistrates often take into account in that determination include:

  1. The offence: The court will consider the type of offence and the circumstances in which the offence was committed, including the defendant’s conduct and the seriousness of the alleged offending.
  2. Moral culpability: If an appropriate professional has established the presence of a mental condition, how that mental condition affected the person’s actions is relevant. This will go towards an assessment of the person’s moral culpability, that is, how much ‘blame’ should be assigned to them for their actions. A persons moral culpability might be lowered where the Magistrate is satisfied that their mental condition caused, or contributed to, the alleged offence.
  3. The likely sentence at law: The magistrate may take into account the person’s prior good record, personal circumstances, and level of moral culpability and make a judgment as to what penalty they would impose at law.
  4. Deterrence: It is well established in criminal law that offenders suffering from mental health issues are not necessarily 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: A magistrate will always be concerned about further reoffending behaviour. If a detailed treatment plan is set out by a psychiatrist or psychologist, there is more reason for the magistrate to consider that a person has higher prospects of rehabilitation.

Step 3. 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 he or she attend on a person or place (usually a treating psychiatrist or mental health facility) for assessment of their medical condition or treatment, or both; or

It is typically very important that that any psychiatric assessment and report provided contains a detailed treatment plan for the magistrate’s consideration.

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. It will therefore 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 the person enter into a treatment plan for continued rehabilitation of the mental conditions, or that he or she be discharged under the care of a medical professional or mental health facility.

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 psychiatrists and psychologists and will be able to refer you to an expert to obtain an appropriate court report in support of your application.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Aurhett Barrie - Solicitor – Sydney

This article was written by Aurhett Barrie - Solicitor – Sydney

As a former Judge’s Associate Aurhett has rare insight into how cases are heard and decided. This knowledge allows him to persuasively advocate for his clients’ interests, both inside and outside of a courtroom. He has spent his career practising exclusively in criminal and traffic law and has advised hundreds of clients on an extensive range of matters. He takes...

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