If you have been charged with a criminal offence that is before the Local Court and suffer with a mental health condition for which treatment is available in a mental health facility, you may be able to make what is known as a “Section 32 Application” under the (Mental Health Forensic Provisions) Act 1990.
The purpose of a s 32 application is to divert a person from the criminal justice system into mental health care and treatment and allows the court to dismiss the charges against you provided that you comply with the treatment plan.
1. When can a Section 32 Application be made?
In order for a s 32 application to be made to the court, a plea does not have to have been previously entered. If you have already entered a plea of guilt, a s 32 application could still be made. A s 32 application can also be made after a finding of guilt on appeal to the District Court.
2. Can I make a Section 32 Application in relation to my offence?
If you have been charged with a summary offence, or an indictable offence that is being dealt with summarily and are before the Local or Children’s Court, you may be eligible to make a s 32 application. If you have been charged with a strictly indictable offence, or the DPP has elected in your matter, s 32 does not apply.
To make a s 32 application, at the time of the alleged offence you must have:
- A cognitive impairment
- A mental illness, or
- A mental condition for which treatment is available in a mental health facility
Examples of mental conditions include anxiety, depression, bipolar disorder, obsessive compulsive disorder or a personality disorder. Treatment for the mental condition may be available through counselling or a psychologist.
3. When will a Section 32 Application succeed?
To make a successful s 32 application, you must convince the court of two things.
- That you are eligible to be dealt with under the section
- That it is more appropriate to deal with the matter under s 32 than to deal with the matter according to law
The Court will consider the seriousness of the offence, and balance the two competing public interests, being the public interest in having the defendant dealt with according to law, against the interest in providing appropriate care and treatment to those suffering from mental health conditions.
Whilst the seriousness of the matter is relevant, it is not determinative DPP v El Mawas (2006) 66 NSWLR 93,  NSWCA 154. This means that it is at the court’s discretion to consider a s 32 application.
4. What evidence is required to make a Section 32 Application?
If you seek to make a s 32 application, you will need to obtain a psychiatrist assessment or psychological report. The report writer must opine that you were suffering from a mental condition for which there is treatment available at a mental health facility. The mental condition must also be a contributing factor to the offence. A treatment plan must be included, which will include the name of the nominated treating practitioner, the frequency of treatment and so forth.
5. Will my charges be dismissed if the Section 32 Application is successful?
A magistrate can dismiss the charged under s 32 and make a final order for you to participate in a treatment plan for up to 6 months. Alternatively, the matter may instead be adjourned for you to undergo mental health treatment for a period and come before the Magistrate later to see how you have responded to treatment.
If the charges are dismissed under s 32, the offences will not appear on your conviction record, but will appear on your criminal history. You will be required to comply with the conditions of your s 32 order. Failure to comply with the conditions of your treatment plan will mean that the matter is called back before the court.
6. I think I’m eligible to make a Section 32 application – who do I call?
Section 32 applications are often complex. It is important to get professional legal advice to assess the merits of your application.