Not everyone who comes before the Local Court for punishment is guilty. From time to time a mental illness gets in the way of life in a way that brings you into conflict with police and the criminal justice system. Sadly, the mentally ill are over-represented in the system. When Mental Illness is raised, the Court has the discretion to deal with your matter under Mental Health Legislation rather than the Criminal Law.

Section 32 of the Mental Health (Forensic Provisions) Act 1990 is potentially available as an alternative to criminal penalties where the accused suffers from a mental illness. It works by diverting the individual into treatment and programs that address the underlying condition that resulted the offending behaviour.


For an application like this, a mental health condition is one that is treatable through counselling and other interventions. Conditions that can be dealt with in this way include things like: PTSD, depression, schizophrenia, schizoaffective disorders, bipolar, anxiety, acquired brain injuries and substance dependency. An early pilot program for the Local Court included autism and Asperger’s syndrome in the list. Each case is different, and it will be for your criminal defence lawyer and mental health professionals to determine if the application is right for you.


If you have been charged with an offence and believe that it is linked to how you might have been struggling with your mental health, your best bet is to speak to a criminal defence lawyer with experience dealing with mental health discharges in the Local Court.

Your lawyer will tell the Court that on your instructions there appears to be a mental health condition associated with the offence and that a mental health discharge may be appropriate. The application for a Section 32 can be made at anytime before a plea or even after a defended hearing. It is always better to do it sooner rather than later.

The Court will then adjourn your matter for approximately 6-8 weeks for you to get a report from a forensic psychiatrist or forensic psychologist.

You really do need a lawyer for this part. Your lawyer will have an idea of which professional will suit your needs best. You need to let your lawyer know whether you have had a previous diagnosis, who your doctors and any treating mental health practitioners are, any medication and drug or alcohol issues you might face. It sounds a little worrying, but it helps paint a picture for the Court of what you are going through.

To get an idea of what is going on the psychiatrist/psychologist will see you at least once but maybe several times before writing the report. The sessions include talking and in some cases, testing. The report will detail your background and what, if any, mental health problems you face, how that might be linked to the offence you committed and what treatment is available to you. The treatment plan part of the report is important.


Once the report is in, your lawyer will make sure the police have a copy and also the Court. Your lawyer will walk the Court through the report establishing that you have a mental health condition and that discharging you with a treatment plan will be best for you and also the community.

The Magistrate then has decide if they accept that there is a mental illness within the meaning of the definition that is linked to the offending and then whether the treatment plan is appropriate or if the offending is so bad, the only way to deal with it is through the criminal law.

If the Court proceeds by way of the mental health discharge, for the next six months, you will have to comply with a number of strict conditions which will include sticking to the treatment plan and any conditions that are part of it. Some examples of conditions include abstaining from alcohol or drugs, attending counselling as required and taking any prescribed medication.

The idea of the Section 32 is to reduce the chance of reoffending by treating the problem. If you breach the conditions, you will find yourself back before the Court and may be sentenced under the Criminal Law.


It might be that the Court accepts that you have a mental condition but that it can only deal with the offences under the criminal law. All is not lost, the report from the forensic psychiatrist/psychologist is still extremely useful.

A good lawyer will use that report to provide context for the offending to the Court. It will still show that you have a condition that contributed to the offending and that the Court does not need to use your punishment for the purpose of general deterrence. The report could still assist in a reduction in any penalty for you.

It is always better to have a lawyer. Don’t do it alone, contact us at National Criminal Lawyers for us to advise you about mental health applications on sentence in the Local Court.

To read our previous blog on this topic, please click this link.




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