Section 32 – Avoiding Criminal Convictions

What is the Section 32 Mental Health Application?

Before 27 March 2021, persons suffering from mental health conditions who were accused of NSW criminal offences could apply for an order referring them to a diversionary regime, rather than subjecting them to a penalty under the general criminal law.

These applications were made under section 32 of the Mental Health (Forensic Provisions) Act 1990 (‘MHFPA’), commonly referred to as section 32’s.

Section 32 of the MHFPA gave the court the power to divert a defendant who is suffering from a mental health condition into the care and treatment of mental health professionals rather than dealing with them through the criminal justice system.

An application pursuant to section 32 of the MHFPA can be made at anytime during the proceeding, including before a plea is entered.

However, section 32 of the MHFPA only applies to defendants charged with a criminal offence before the 27 March 2021, prior to the act being replaced by The Mental Health and Cognitive; Impairment Forensic Provisions Act 2020 (NSW) (‘MHCIFPA’).

The Mental Health Act

If you are charged with a criminal offence after 27 March 2021, the new act applies – Please click here to read about Section 14, the equivalent of section 32 in the new MHCIFPA.

The Two Limbed Test

Are You Eligible and Is It More Appropriate?

In the leading case of DPP v El Mawas (2006) NSWCCA 154, Judge McColl made clear that two limbs needed to be satisfied before an application pursuant to section 32 of the MHFPA could be granted.

Judge McColl stated:

When one turns to s 32 it can be seen it requires the Magistrate to make at least three decisions. The first is to determine, in accordance with s 32(1)(a), whether the defendant is eligible to be dealt with under that section.

The Magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant (including presumably any information the Magistrate has garnered under s 36), “it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with the law”.

Once the Magistrate has determined that it is more appropriate to deal with the defendant in accordance with s 32, the Magistrate must determine which of the actions set out in subs (2) or (3) [of section 32] should be taken.

The two limbs of the application were contained in section 32 of the MHFP Act. The two limbs of the application are now contained in section 12 of the new Act, MHCIFPA.

Limb 1 – The Enquiry

The Court can deal with a matter pursuant to section 32(1) MHFPA, if the Court is satisfied that the Applicant is:

• Suffering from a mental illness;
• Treatment plan is available; and
• The applicant is not a mentally ill person.

Limb 2 – The Balancing Test

Limb 2 is about the court considering whether it is more appropriate to deal with a defendant in accordance with law or under the MHFPA.

In the case DPP v El Mawas (2006) 66 NSWLR 93 at [71] McColl JA, with Handlly JA and Spigelman CJ agreeing, stated:

… requires a Magistrate to 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 El Mawas at [29] McColl J agrees with Howie J in DPP v Confos (2004) NSWSC 1159 (Confos) where he stated at [17] that:

It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.

There has been case law which has provided some factors that the Courts can have regards to in determining whether a section 32 MHFPA discharge is more appropriate, namely:

1. Seriousness of the offence;
2. The purpose of sentencing as per section 3A Crimes (sentencing Procedure) Act 1999 (NSW);
3. The realistically available sentence options for the defendant;
4. The Proposed treatment plan;
5. That the order pursuant to MHFPA can only be imposed for 6 months;
6. Etc.

When considering the objective seriousness of an offence, the court can have regard to the causal connection between the mental health condition and the offence. In circumstances where a causal connection can be established, the objective seriousness of the offending can sometimes be reduced. In order for the court to give weight to the causal connection, the expert needs to provide this finding in the report.

In Muldrock v The Queen (2011) 244 CLR 120 it was held existence of a mental health condition can also reduce an offender’s moral culpability and the weight that needs to be placed on general deterrence and denunciation.

A similar position was held in R v Hemsley [2004] NSWCCA 228 Sperling J stated a mental illness may render the offender an inappropriate vehicle for general deterrence.

From experience, stronger section 32 applications are formed on the basis that the defendent is committed to rehabilitation and is unlikely to reoffend. The report will often indicate the applicant has attended a number of sessions and has been following all directions.

Being able to submit on compliance can give the court confidence that a defendant has shown insight into the offence.

Ultimately, the court after having regard to the above, will have to decide where it is more appropriate to discharge the applicant from the criminal justice system and deal with them pursuant to section 32 of the MHFPA.