mental health orders and the best criminal lawyers for mental illness defence

If you suffer from mental illness, Australian Criminal Law Group has Sydney’s best criminal lawyers to have your criminal charges dismissed under section 14 or 32.  

We’re mental Illness Defence experts who know how to get section 14 mental health orders and have charges dissmissed.  

Mental health is no longer the taboo subject it once was with the community and governments of Australia. We now acknowledge the terrible impact it is having on people’s lives. The courts have recognised the need for people with mental illnesses to be treated with particular care when being sentenced. Often extending leniency to people diagnosed with certain conditions. These include anxiety, depression, post-traumatic stress disorder, autism, bipolar, and schizophrenia.

Our criminal lawyers are experts at arguing that people who suffer mental health or illness should have their criminal charges dealt with by a mental health order under section 14 or section 32. This means they receive no criminal record or other punishment.

Below is information about section 14/32 applications.

If you need representation or criminal law advice, make a website enquiry or call our free 24/7 criminal law hotline on 8815 8167.

What is a Mental Health Order under section 14/32?

A mental health order, under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, diverts people out of the criminal system and into the care of their treating psychologist, psychiatrist, or general practitioner within the community. This order was previously known as section 32.

Who is eligible for a Mental Health Order under section 14?      

A Magistrate will make an order under section 14 if it appears to the Magistrate that the person has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both.

A “person has a mental health impairment” if:

  1. the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
  2. the disturbance would be regarded as significant for clinical diagnostic purposes, and
  3. the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

A mental health impairment may arise from any of the following disorders but may also arise for other reasons:

  1. an anxiety disorder,
  2. an affective disorder, including clinical depression and bipolar disorder,
  3. a psychotic disorder,
  4. a substance induced mental disorder that is not temporary.

A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by:

  1. the temporary effect of ingesting a substance, or
  2. a substance use disorder.

A “person has a cognitive impairment” if:

  1. the person has an ongoing impairment in adaptive functioning, and
  2. the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
  3. the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

A cognitive impairment may arise from any of the following conditions but may also arise for other reasons–

  1. intellectual disability,
  2. borderline intellectual functioning,
  3. dementia,
  4. an acquired brain injury,
  5. drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
  6. autism spectrum disorder.

A person who is mentally ill is not eligible for a section 14/32 order but is eligible for other orders. A mentally ill person is someone who presents a real risk of harm to themselves or others. 

What will the court consider in deciding whether to give me a section 14/32?

The Magistrate can make a Mental Health Order under section 14 order if it is more appropriate to deal with the charges under section 14 than otherwise sentencing the person at law.

The case of Confos v DPP (NSW) [2004] NSWSC 1159 is a widely accepted authority as to the way a Magistrate should approach an application made pursuant to section 32. His Honour Howie J in that case held at [17]:

In order to determine whether it is more appropriate to deal with the applicant under Part 3 the Magistrate has to perform 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. It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case. But it is one that cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly 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 will it be appropriate to deal with the defendant in accordance with the provisions of the Act. 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.

In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following:

  1. the nature of the defendant‘s apparent mental health impairment or cognitive impairment,
  2. the nature, seriousness and circumstances of the alleged offence,
  3. the suitability of the sentencing options available if the defendant is found guilty of the offence,
  4. relevant changes in the circumstances of the defendant since the alleged commission of the offence,
  5. the defendant‘s criminal history,
  6. whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990 ,
  7. whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
  8. whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,
  9. other relevant factors.

 

Can serious offences be dealt with by way of a Mental Health Order under section 14/32?’

In DPP v El Mawas [2006] NSWCA 154, his Honour McColl JA held orders like section 14 are available to serious offenders as long as it is regarded, in the Magistrate’s opinion, as more appropriate than the alternative. When considering the seriousness of the offending conduct and whether the charges should be dismissed, His Honour held the degree to which a defendant is disabled from being able to control that conduct, due to mental health, is a relevant consideration.

 

Is the sentence I would otherwise receive relevant to the decision to make a mental health order under section 14/32?

In Mantell v Molyneux (2006) 68 NSWLR 46, Adams J observed than in weighing up the appropriateness of diversion under a mental health order, it is perfectly proper for a Magistrate to have regard to the potential likely sentencing outcome for the Defendant if he is dealt with in accordance to law.

In considering the likely sentencing outcome, it is necessary to consider the applicable sentencing principles. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, his Honour McClellan CJ listed the following propositions that may apply when sentencing persons with mental health:

  1. Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced.
  2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. General deterrence is a sentencing principle that relates to sending a message to the community that offending of a kind is unacceptable and condemned.
  3. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.
  4. It may reduce or eliminate the significance of specific deterrence. Specific deterrence is a sentencing principle that relates to sending a message to a person that their offending of a kind is unacceptable and condemned.
  5. It may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

 

How long is a mental health order under section 14/32?

An order under section 14 can be up to 12 months.

An order under section 32 can be up to 6 months.

The length of the order pursuant is a matter that the court is ‘entitled and, indeed obliged’ to consider in deciding whether to divert a matter or deal with it in accordance to law: Quinn v DPP [2015] NSWCCA 331.

 

Will my criminal lawyer need to obtain a psychological or psychiatric report get Mental Health Orders (section 14/32 orders)?

To get our clients’ charges dismissed under section 14/32, we obtain reports from the best psychologists and psychiatrists. The choice of psychologists and psychiatrists we use has a varied price range. This ensures none of our clients is stopped from running a section 14/32 because they have limited financial means. 

Our reports have treatment plans that give the courts confidence in using section 14/32.

The proposed treatment plan is a matter the court can take into account in deciding whether to divert an offender under section 14/32 or deal with an offence in accordance to the law.

 

What will happen to me if I get a Mental Health Order under section 14 or 32?

Conditions of the mental health order under section 14/32 can include:

  1. Continuing treatment with your psychiatrist or psychologist. 
  2. Taking prescribed medication.
  3. Abstaining from drugs and/or alcohol and submitting to testing.

 

Why are section 32 order now called section 14 orders?

New legislation around mental health in criminal law has come into place as a result of recommendations submitted to parliament following the NSW law reform commissions 2013 of key forensic mental health provision.  The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 24 March 2021 replacing the old Mental Health (Forensic Provisions) Act 1990.   

The main changes to the legislation include those made to the insanity plea and determining fitness to stand trial.   Tests to determine mental competence are now part of statutory law for both.  The new legislation also removes old and outdated language in place of plain English to make the legislation more accessible to everyone.  

The new legislation for diversion or Mental Health Orders has been largely modeled off section 32 with further guidance for the magistrate to take into consideration when making a diversion decision.   

The new legislation stresses the importance of the safety of victims and the community and puts emphasis on this in relation to decisions by the court.    As such, the additional considerations for the magistrate in making a mental health diversion order include; the seriousness of the offence; the criminal history of the defendant; and if and what alternative sentencing options are available to the court.  

More thorough details regarding the treatment plans and supervising doctors’ information are also now required by the court as part of the new legislation.  This includes things such as whether the person has a history of diversion orders, whether there is a proper treatment plan, and the details of those plans. 

The other major change is in relation to the time period a person can be called back to court should they re-offend.  Previously, the magistrate was empowered to call the defendant back to court only within a 6 month period from when the order was made, should the defendant reoffend and/or not comply with the treatment.   This has now been extended to 12 months.  

Section 14/32 cases

Offences for which our criminal lawyers have obtained mental health orders (section 32) for include:

 

Why work with Australian Criminal Law Group for mental illness orders?

Australian Criminal Law Group is home to Sydney’s best criminal lawyers.   All of our legal defence team are experts in section 14 applications where a mental illness defence applies. We know how to get criminal charges dismissed where mental illness is concerned.

We have offices in SydneyParramatta, and Blacktown.  Call us today on 02 8815 8167 or send us a website enquiry to arrange your first free consultation. 

 

 

Sources:

Crimes Act 1900 No 40, Current version for 1 January 2022 to date (accessed 7 March 2022 at 21:52) https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040

AUSTlii New South Wales Consolidated Acts, classic.austlii.edu.au, accessed 22 March 2022 at 11:38am http://classic.austlii.edu.au/au/legis/

 

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This information is intended as a general guide to law only.  It should not be relied on as legal advice, and it is recommended that you speak with a qualified lawyer about your situation.

Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, Australian Criminal Law Group makes no warranties or representations as to its accuracy. 

 

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