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Section 32 and section 14 applications in the Local Court in NSW – Crime



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KEY TAKEAWAYS

Section 14 is the new section 32 which is an order a Magistrate
in the Local Court can impose on a defendant facing criminal
charges who is suffering a mental health or cognitive impairment in
order to divert the defendant away from the criminal justice
system. This results in the charges being dismissed, and the
defendant is thereby discharged with or without conditions. This
also results in no criminal record (non-conviction) for the
defendant.

This article on section 14 diversionary pathway laws is
written by our
mental health lawyers Sydney
team. For more on this, contact
our Sydney office

People suffering mental health issues are getting into contact
with the criminal justice system at an increasing rate.

The Mental Health Cognitive Impairment Forensic
Provisions Act
2020 in NSW provides a framework to divert
people suffering mental health issues who’re facing criminal
charges away from the criminal justice system. It also compliments
the Mental Health Act. The purpose of it is to
focus on rehabilitation and treatment, rather than punishment,
resulting in the charges being dismissed completely if the criteria
for such a diversion is satisfied.

WHAT IS A SECTION 32? | WHAT IS A SECTION 14?

The section 32 is what now is called section 14 order under the
Mental Health Cognitive Impairment Forensic Provisions Act. It is
one of the diversionary pathways for defendant’s facing
criminal charges whilst suffering mental health issues. This
results in the dismissal of criminal charges, discharging a
defendant with or without conditions, without a criminal
record/non-conviction. Here is more on
mental illness defences
.

Here is more on
what is the defence of mental impairment

Section 32 and Section 14 Application

The Local Court can dismiss criminal charges and discharge a
defendant into the care of a responsible person
with or without conditions, under section
14
of the Mental Health and Cognitive Impairment Forensic
Provisions Act 2020 (NSW).

Alternatively, the Local Court can take any one of the following
options:

(1) Dismiss the charges and discharge a defendant
unconditionally, or

(2) Dismiss the charges and discharge the defendant on the
condition that he or she attend a person or place specified
by the Magistrate for assessment, treatment
or the
provision of support for his or her mental health impairment or
cognitive impairment, or

(3) the Magistrate also has the power to instead order that the
proceedings be adjourned in order for the defendant to be assessed
or diagnosed; for the development of a treatment or support plan;
for a responsible person to be identified in order to be able to
make an order; or for any other reason considered appropriate by
the Magistrate in the circumstances, according to section 13.

This application is commonly called the mental health or section
14 (formerly s32) application and only applies to local court
proceedings involving
summary offences or indictable offences
dealt with in
the local court, according to
section 8
.

Will a s14 Order Show On My Criminal Record Check?

Receiving any one of the above s14 orders (dismissal of charges
and discharge) results in no penalty or punishment against a
defendant. This also means that the defendant, whether or not he or
she pleads guilty, will walk away with no criminal
record/conviction whatsoever.

After charges end up getting dismissed under section 14, the
charges or outcome will not appear on a criminal background check,
if conducted by an employer. In contrast, getting a section 10 or
CRO non-conviction order will appear on a background criminal
record check conducted by an employer, although it will show as
‘non-conviction’.

How To Get a Section 32 or Section 14

The Magistrate can make any of those orders if the following 3
criteria in section 12 is satisfied, namely:

(1) it appears that the defendant has, or had
at the time of the alleged offending, a ‘mental health
impairment’ or ‘cognitive impairment’
, and

(2) it appears on any evidence
available
(and if considered relevant)
that it would be more appropriate to deal with the
defendant in accordance with this Division
than otherwise
in accordance with law, and

(3) the defendant is not a ‘mentally ill person’
or a ‘mentally disordered person’
.

Additional Conditional Conditions That Must Be Satisfied

In addition to the above 3 criteria, here are a few more
requirements that must first be satisfied before a s14 order can be
made by a Magistrate, namely:

(1) Treatment Available in Mental Health
Facility
: A precondition to enlivening a s14 discretionary
order is that the condition be a ‘mental health impairment’
or ‘cognitive impairment’ for which ‘treatment
is available in a mental health facility
‘ (whether
inpatient or outpatient basis). This needs to be expressly stated
in a report for the Magistrate to be able to move to the next
considerations. This has been outlined in the case of
Edwards v DPP NSWSC 105.

(2) Treatment or Case Plan: When discharging a
defendant into the care of a ‘responsible person’, a
treatment or case plan will normally be included as one of the
conditions that a defendant must comply with. It is very helpful to
a Magistrate if a treatment or case plan is already prepared. A
treatment or case plane will not be required if a defendant is
unconditionally discharged.’

A treatment or support plan means a plan
outlining programs, services or treatments or other support that
may be required by the defendant to address his or her apparent
mental health impairment or cognitive impairment.

(3) Expert Reports: if the diagnoses asserted
is a psychiatric condition in contrast to a psychological one,
it’s important to ensure that the expert opinion comes from a
psychiatrist with relevant experience and specialty in the field of
expertise. The report must be in the appropriate legal form,
outlining the experts experience, expertise in the relevant field
of practice, and also expressly outline at the start of the report
whether the expert is aware of and complies with the expert code of
conduct and section 177 of the Evidence Act. In addition, the
report should, when diagnosing a defendant, refer to the
Diagnostically and Statistical Manual (DSM-5) with a basis for any
conclusive opinions.

(4) Responsible person: This applies if the
Magistrate is minded to impose discharge into the care of a
responsible person. The case of
Saunders v DPP [2017] NSWSC 760
requires a court
when discharging a person into the care of a ‘responsible
person’ to clearly identify either a person or agency. This
person is not required to be a doctor or mental health
professional, nor is such a person required to sign any document or
be compelled to provide any services. If the court imposes a
conditional discharge with a requirement that the defendant attend
a specified person or place specified for assessment, treatment or
the provision of support, this will mean that he or she must attend
a community mental health centre service for treatment and/or
support. A ‘responsible person’ is then not required to be
nominated.

Is the ‘responsible person’ required to report
breaches?
The responsible person is not compelled to
report any breaches to the court but may do so at their
discretion.

Is a treatment provider required to report
breaches?
A person who is to assess a defendant ‘s
mental condition or provide treatment to his or her is not
compelled to but may report a failure to comply with a condition of
the order.

Do I Have to Plead Guilty to Get a s14 Order?

The Magistrate can make any of these orders at any time of the
case, including at the start or any other time during the
proceedings, regardless of whether or not a plea of guilty has yet
been entered by the defendant, according to section
9
.

WHAT IS A ‘MENTALLY ILL PERSON’ OR ‘MENTALLY
DISORDERED PERSON’?

If a defendant is a ‘mentally ill person’ or a
‘mentally disordered person’ when he or she will be
precluded from a section 14 order.

A ‘mentally ill person’ is defined in
section 14 Mental Health Act 2007 (NSW) as someone who’s
suffering from mental illness and, owing to that
illness, there are reasonable grounds for believing that care,
treatment or control of the person is necessary:

(1) for his or her own protection from serious harm, or

(2) for the protection of others from serious harm.

The person’s continuing condition, likely deterioration of
his or her condition, and likely effects of any such deterioration
are all relevant considerations when considering if he or she is a
‘mentally ill person’.

A ‘mental illness’ means a condition
that seriously impairs (temporarily or permanently) the mental
functioning of a person and is characterised by the presence of any
one or more of the following symptomatic:

  • Hallucinations,

  • Severe disturbance of mood,

  • Delusions,

  • Serious disorder of thought form,

  • Sustained or repeated irrational behaviour indicating the
    presence of any one or more of the above mentioned symptoms.

Schizophrenia is an example of a mental illness.

In contrast, a ‘mentally disordered person’ is
defined
in section 15 Mental Health Act 2007 (NSW) as
someone (whether or not suffering from mental illness) who’s
behaviour for the time being is so irrational as to justify a
conclusion on reasonable grounds that temporary care, treatment or
control is necessary for his or her own protection from serious
physical harm
, or for the protection of others from serious
physical harm
.

WHAT IS A ‘MENTAL HEALTH IMPAIRMENT’ OR ‘COGNITIVE
IMPAIRMENT’?

It is a precondition to a s14 order that it appear to the
Magistrate that the defendant has or had at the time a ‘mental
health impairment’ or a ‘cognitive impairment’.

Meaning of ‘mental health impairment’
is defined in section 4 Mental Health and Cognitive Impairment
Forensic Provisions Act 2020 (NSW) as someone who:

  • Has a temporary or ongoing disturbance of thought, mood,
    volition, perception or memory, and

  • The disturbance would be regarded as significant for clinical
    diagnostic purposes, and

  • The disturbance impairs the emotional well-being, judgment or
    behaviour of the person.

A ‘mental health impairment’ may arise from any of the
following disorders (but may also arise for other reasons):

  • Anxiety disorder

  • Effective disorder, including clinical depression and bipolar
    disorder,

  • Psychotic disorder,

  • Substance induced mental disorder that’s not
    temporary.

A person does not have a ‘mental health impairment’ if
his or her impairment is caused solely by the temporary effect of
ingesting a substance, or a substance use disorder. This means that
a person who commits a crime while intoxicated, with no other
clinically significant mental health impairment or cognitive
impairment will not come within the definition of ‘mental
health impairment’ or ‘cognitive impairment’.

Meaning of ‘cognitive impairment’ is
also defined in section 4 as a person who:

  • Has an ongoing impairment in adaptive functioning, and

  • The person has an ongoing impairment in comprehension, reason,
    judgement, learning or memory, and

  • The impairments result from damage to or dysfunction,
    developmental delay or deterioration of the person’s brain or
    mind that may arise from a condition set out above or for other
    reasons.

A ‘cognitive impairment’ may arise from any of the
following non-exhaustive conditions:

  • Intellectual disability,

  • Borderline intellectual functioning,

  • Dementia,

  • Acquired brain injury,

  • Drug or alcohol related brain damage, including foetal alcohol
    spectrum disorder,

  • Autism spectrum disorder

MORE APPROPRIATE TO DEAL WITH DEFENDANT UNDER S14

This part of the Magistrate’s consideration of a section 14
order is often called the second limb test.

Ultimately, the Magistrate must balance on the one hand, the
purposes of punishment, and on the other hand, the public interest
in diverting the mentally disordered from the criminal justice
system. This is a discretionary judgement requiring consideration
as to the seriousness of the offending.

The more serious the offending conduct is, the more importance
public interest in punishment plays for the protection of the
community.

If a defendant is disabled from being able to control his or her
conduct, then it helps to find out the extent of this so that the
court can limit considerations to the seriousness of the offending
conduct. This, for example, is what the court did in the case of
DPP v El Mawas [2006] NSWCA.

If an order under s14 will produce a better outcome for both the
defendant and community then a s14 order will likely be imposed in
favour of the defendant.

In deciding whether it would be more appropriate to deal with a
defendant in accordance with s14, the Magistrate can consider the
following factors as outlined in section 15:

  • Nature of the defendant’s apparent mental health impairment
    or cognitive impairment,

  • Nature, seriousness and circumstances of the alleged
    offence,

  • Suitability of the sentencing options available if the
    defendant is found guilty,

  • Relevant changes in the defendant’s circumstances since the
    alleged offence,

  • Criminal history of the defendant,

  • Whether there has been a previous s14 or the former s32
    order,

  • Whether a treatment or support plan has been prepared in
    relation to the defendant and the content of that plan,

  • Whether the defendant is likely to endanger the safety of
    him/herself, a victim, or any other member of the public,

  • Other relevant factors.

WHAT HAPPENS IF THE DEFENDANT BREACHES S14 CONDITIONS

If the Magistrate suspects that a defendant has failed to adhere
to his or her s14 conditions, the Court can order the defendant to
appear before the Magistrate.

Failure to comply with a s14 condition within 12 months of the
defendant being discharged under this order gives the Magistrate
the power to deal with the charge as if the defendant had not been
discharged under a s14 order. This means that he or she will then
be dealt with in the normal course according to law, according to
section 16.

If a defendant fails to appear in court after the Magistrate has
ordered for his or her attendance, the Court can issue an arrest
warrant.

HOW LONG DOES A SECTION 14 OR SECTION 32 ORDER LAST?

A section 14 order lasts for up to 12 months from the date the
order is made by the Magistrate in court. During the 12 month
period, the Magistrate has the power to order the defendant to
return to court if there’s been a breach of any of the s14
conditions.

The former section 32 order which is now not applicable would
last for up to 6 months. In contrast, the section 14 lasts for up
to 1 year.



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