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Section 32 Mental Health Application – Avoiding Criminal Convictions

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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 Mental Health (Forensic Provisions) Act 1900 (NSW) (‘MHFPA’) gives the court the power to divert a defendant from the criminal justice system who is or at the commission of the offence was suffering from a mental health condition. 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’). If you have been charged with a criminal offence from the 27 March 2021, the new act applies. Please click the following link to read about the equivalent of section 32 in the new MHCIFPA, namely, section 14.

 

THE EXPERT REPORT

It is essential for a section 32 application that a psychologist or psychiatrist report is available. The report needs to include a treatment plan. This is nonnegotiable. The section 32 application is based on the report, without the report there is no expert opinion to advise on the defendant’s eligibility or the appropriateness of the diversion.

The report will usually take a 4 – 6 weeks to prepare.

In terms of costs, private psychologists and psychiatrists charge varying fees depending on a range of factors. The reports averagely cost between $1,500.00 – $2,2200.00.

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 stated that two limbs needed to be satisfied before an application pursuant to section 32 of the MHFPA could be granted.

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 stated that two limbs needed to be satisfied before an application pursuant to section 32 of the MHFPA could be granted.

Judge McColl said:

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.

LIMB 1  – THE ENQUIRY

  1. The Court can deal with a matter pursuant to section 32(1) MHFPA, if the Court is satisfied that the Applicant is:
    1. Suffering from a mental illness;
    2. Treatment plan is available; and
  • The applicant is not a mentally ill person.

LIMB 2 –  THE BALANCING TEST

  1. 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.
  2. 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.”

 

  1. Further at [77], the Court stated:

“…that the second stage inquiry under s 32 required balancing the purposes of punishment and the public interest in diverting a mentally disordered offender from the criminal justice system”.

  1. 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.”

  1. 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:

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

7. 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.

8. 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.

9. 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.

10. 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.

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

12. 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.

CONCLUSION

If you or someone you know has been charged with a criminal offence and would like to discuss a potential section 32 application, contact us today. Our Criminal Lawyers are experienced with making section 32 applications in court.

If you are charged with the offence of obtain a benefit by deception what are your options?

National Criminal Lawyers have been successful in defending a number of obtain a benefit by deception charges where the prosecution could not establish each of the elements of obtain a benefit by deception. We have also achieved a number of non-convictions for obtain a benefit by deception charges.

NCL offer the following options for those who have been charged with obtain a benefit by deception:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”);
  2. NCL will Plead Not Guilty and go to hearing/trial;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing); and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf seeking a non-conviction by the Court.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you or someone you know has been charged with a criminal offence and would like to discuss a potential section 32 application, contact us today. Our Criminal Lawyers are experienced with making section 32 applications in court.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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