Last month, our office achieved yet another outstanding result before the Local Court. Our office successfully made submissions in support of a Section 32 application on behalf of our client which the Court confidently accepted.

Our client had unfortunately gone through both emotional and physical abuse throughout their childhood which had gotten so bad that they were evicted from their home. As a result, our client had a difficult upbringing which had caused them to go through some dysfunctional relationships which included their most recent relationship. This inevitably had caused them to suffer a post traumatic experience which lead to the diagnosis of Post-Traumatic Stress Disorder (‘PTSD’).

In turn, the Court was satisfied that the traumatic childhood experiences were directly linked to the charges.


The Defendant is charged with the following offence:

  1. Contravene prohibition/restriction in AVO pursuant to section 14(1) of the Crimes (domestic and personal violence) Act 2007;


  1. Stalk/intimidate fear physical harm pursuant to section 13(1) of the Crimes (domestic and personal violence) Act 2007; and


  1. Common Assault pursuant to section 61 of the Crimes Act 1900.

Click on any of the above-mentioned charges to learn more. Alternatively, contact our office for a free consultation.


A section 32 application pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) (‘MHFPA’) is heard in the Local Court. This Court has discretion to divert the defendant, who is suffering from a mental health condition and has been charged with a criminal offence, out of the criminal sentencing process. Part 3 of the MHFPA, states all the relevant provisions to summary proceedings before a magistrate in relation to persons with intellectual disability, other developmental disabilities and mental disorders. These discretionary powers given to magistrate are inquisitorial rather than adversarial in nature as they can be used without having the defendant to incriminate himself or herself.


Section 32 of the MHFPA states:

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law.

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate:

(i) for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or

(ii) to enable the provision of support in relation to the defendant’s cognitive impairment or

(c) unconditionally.


There is no formal requirement to enter a plea for this application and can be made at any time during the proceedings, including at the end of a hearing. This application is generally made by the defendant’s lawyer, but it can be raised by any party of the proceedings, including the magistrate themselves. To assist the Court, it is best to get a report by a psychologist or psychiatrist which helps the Court determine if the defendant satisfies the first limb . For this order to be made, the magistrate must be satisfied upon three elements.


In Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154, this case sets out the criteria to be met for any consideration of this order.

  1. Is the defendant eligible to be dealt with under this section?
  2. With regard to the subjective material, is it more appropriate for the defendant to have their matter dealt with under this order than according to law?
  3. If consideration has been met with the two limbs, what action should the presiding Magistrate take pursuant under their discretionary power at s32 (2) & (3) of the Act

First Limb

The first limb is a question of jurisdiction and this is completed by way of finding of fact on whether or not the person is eligible to be dealt with under this order. To be considered eligible, the defendant must be or during the alleged commission of the offence have any of the following:

(a) Developmentally disabled; or

(b) Suffering from mental illness; or

(c) Suffering from a mental condition for which such treatment is available in a mental health facility.

Second Limb

The second limb examines the subjective material, which are items like the fact sheet and reports, to assess if the Magistrate deems it more appropriate to deal with the defendant under section 32 otherwise in accordance with law. The idea:

“calls for the exercise of subjectivity or value judgments in which no single consideration and no combination of considerations is necessarily determinative of the result”.


The balance of public interest

As previously touched on in the matter of DPP v El Mawas, the notion of “balancing public interest” was examined further in [71] where:

“balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s.32(1) or mental illness (s.33) with the object of ensuring that the community is protected from the conduct of such persons.”

In other words, the Court determined that interest of the defendant being dealt with under section 32 must be balanced against the benefit to the public. This is to help ensure that the same or similar criminal conduct will not repeat in the future and pose any risk to the public.

It should be noted that this application does not expose the defendant to traditional notion of punishment, rather it urges the defendant to obtain treatment and rehabilitation.

If your application under section 32 is successful, then no conviction will be recorded as there is no finding that the charges have been proven.


There are many more types of principles that the Court may apply, and the entire process can be complex. The team at National Criminal Lawyers® are Criminal Law Specialists and have dealt with these applications many times. Call our office for a free appointment to help you understand the process.


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