Section 32 of the Mental Health (Forensic Provisions) Act 1990

What is a section 32 order?

A section 32 order is made pursuant to the Mental Health (Forensic Provisions) Act 1990 and has the effect of diverting a person charged with a criminal offence out of the criminal system and typically into the care of their treating psychologist, psychiatrist or general practitioner. Treatment occurs in the community without court intervention. The making of a section 32 order does not require an admission of guilt but there is no finding of innocence either. A person subject to a section 32 order will have no criminal record.

A section 32 order can only be made for offences finalised in the Local Court of NSW.

When can a section 32 application be made?

For a person to be eligible to be dealt with according to section 32, that person must at the time of the court hearing or at the time of the alleged commission of the offence be:

  1. Developmentally disabled, or
  2. Suffering from mental illness, or
  3. Suffering from a mental condition for which treatment is available in a hospital, but not a mentally ill person;

This is usually established by tendering an expert report prepared by a psychologist or psychiatrist as well as any other relevant medical documentation.

What is in a report tendered on a section 32 application?

A report should state:

  • Background information about the applicant;
  • Whether, at the time of his or her offending, the applicant suffered from a mental condition;
  • Whether, the applicant suffers from the mental condition (or any other psychiatric/ psychological condition) at the time of the proceedings;
  • The basis on which the psychologist or psychiatrist reached the conclusion the Applicant suffered from the mental condition;
  • What the likely causes of the mental condition are;
  • Whether the mental condition contributed to the Applicant’s involvement in the commission of the offences, and if so, how and why;
  • Whether treatment is available and what would be the recommended Treatment Plan would be;
  • What the consequences are if the Applicant remains untreated and what is the likely outcome if the Applicant receives treatment.

What happens if it is established a person does suffer from a mental condition?

If it is established that a person is developmentally disabled and/or suffering from as mental condition, the Magistrate will be required to determine whether it would be more appropriate to deal with the Applicant by way of section 32 order than by the criminal law.

This decision involves a Magistrate considering what will produce the better outcome both for the person making the application and the community. In doing so, the Magistrate performs a balancing exercise weighing up, on one hand the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system.

When is it more appropriate to deal with a matter pursuant to section 32?

In considering the appropriateness of dealing with a matter pursuant to Section 32 a Magistrate may consider:

  • The facts alleged in the proceedings rather than the type of offence charged. The more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely it will be appropriate to deal with the Applicant by way of section 32.
  • The relationship, if any, between the alleged offence and the nature of the accused’s mental disorder. If there is a direct causal link between the offending and the mental disorder, the Magistrate is more likely to make the section 32 order.
  • The realistically available sentencing outcomes in the event of conviction for the offence. If the magistrate thought it was very likely that a non-custodial option would be appropriate, then the balancing exercise would necessarily take that into account.
  • The accused’s previous criminal history and whether that person has previously been dealt with under Section 32. Where a person has been previously dealt with pursuant to section 32, it may assist the case for a section 32 in that it shows a history of mental health issues or detract from the case if it shows the person has been flippant towards rehabilitation.
  • The proposed treatment plan. The psychologist or psychiatrist who provides the expert report should outline a treatment plan that can be incorporated into the section 32 order. This is a critical aspect of a section 32 application as the treatment plan will usually need to give the Magistrate confidence that if the Applicant abides by it then they will not reoffend.
  • Progress towards rehabilitation. A section 32 order is much more likely to be made if at the time of the court hearing, the Applicant has made demonstrable steps towards rehabilitation in accordance to the treatment plan e.g. taking prescribed medication and attending a psychologist.

What happens when a section 32 order is made?

If a Magistrate finds it more appropriate to deal with the Applicant by way of section 32 order than by the criminal law, the Magistrate will dismiss the charge and the Applicant will be required to abide by conditions which are set out by the magistrate.

These conditions can last for no longer than six months, and they will be tailored to the Applicant’s specific circumstances. Under a section 32, a person may be required to:

  • Abstain from drugs and/or alcohol and submit to testing;
  • Undergo mandatory counseling sessions;
  • Take prescribed medication;
  • Agree to have your medication and condition reviewed regularly (usually on a monthly basis).

In some cases, a person may also be required to remain in the care of a responsible person and reside at a specific address for the duration of the treatment program.

If a person does not abide by the conditions set by the magistrate, the section 32 can be revoked, and the person will be required to face the original charges in court.

Why choose AC Law Group’s criminal lawyers?

Our lawyers are experts at obtaining Section 32 dismissals for our clients.

Recent cases in which our solicitors have managed to obtain section 32 dismissals for our clients include in cases where our clients were charged with:

  • High Range PCA;
  • Drive while Disqualified;
  • Recklessly inflicting grievous bodily harm;
  • Assault occasioning actual bodily harm;
  • Affray;
  • Supply and Possession of methyl-amphetamine (ice);
  • Supply and Possession of methyl-amphetamine (cocaine and MDMA).

Contact of our criminal law offices at Sydney, Parramatta, Blacktown or Redfern to receive advice on the prospect of your case being dealt with by way of section 32.

Contact us to book a FREE first consultation

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