Mental Illness and Criminal Law (Section 32)

What is a Section 32 application?

Are you, or were you at the time you committed an offence, suffering from a mental illness or disorder?

If so, the Court may deal with you more leniently than would otherwise be the case.

For matters which will be dealt with in the Local or Children’s Court (that is, the less serious ‘summary offences’), section 32 of the Mental Health (Forensic Provisions) Act 1990 provides a diversionary scheme under which the Magistrate may deal with defendants who suffer/suffered from such illnesses in a more practical manner. As such, the difficulty of a full hearing of the relevant charges may be bypassed and the matter dismissed.

How do you get a section 32?

For section 32 to apply, the Magistrate must find that the defendant is, or at the time the relevant offence was committed, suffered from either a developmental disability, mental illness or other mental condition which can be treated.

If this requirement is satisfied the Magistrate may (but is not always obliged to) grant a section 32 and deal with the defendant by making either procedural or final orders if he or she believes that would be more appropriate than dealing with the case in the usual manner.

What happens if a section 32 is successful?

If the application is successful and final orders are made, the defendant will be dismissed and discharged into either the care of a responsible person, and/or with a requirement that the defendant undergoes an assessment and treatment, or alternatively, the defendant may be released unconditionally.

The charges will be dismissed and no conviction will be entered on the defendant’s criminal record.

It is important to note that if the defendant is released subject to a condition (for example, seeking treatment for the illness) and the defendant fails to comply with that condition within 6 months, the Magistrate may call on the defendant to appear before them again and may deal with the charge as if it had not been dismissed.

Can I ask for a section 32?

Although a Magistrate has the power to make a section 32 application on their own, this rarely happens.

A person seeking to be dealt with under section 32 must make an application to the Court (generally by way of their solicitor), accompanied by a psychiatric or psychological report and a case plan.

The application may be made at any point in the proceedings, including after the defendant has pleaded guilty; however, there is no requirement that the defendant enters a plea when the application is made.

Disclaimer

This article is intended on being a guide only.

If you have been charged with an offence which will be dealt with in the Local Court and you believe that you suffer from a mental impairment (or did so at the time the offence is alleged to have occurred) and you need specific advice regarding a Section 32 application, contact us here.