Section 32 Application under the Mental Health (Forensic Provisions) Act 1990

A Section 32 application is an application pursuant to s.32 Mental Health (Forensic Provisions) Act 1990 to have charges dismissed without conviction. 
If an order is made by the court under section 32, the defendant is diverted from the criminal justice system and is diverted to a treatment program for their disability or illness.


Who is eligible?

A person may be eligible it appears to the Magistrate that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

  • developmentally disabled,
  • suffering from mental illness
  • suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person.

What is the effect of an order made by magistrate under this section?

The effect of the order is to dismiss the charges either unconditionally or subject to conditions.

What are the conditions a magistrate may impose?

Conditions usually relate to complying with a treatment plan, which is an outline of various steps to be taken to engage with services and support to address any issues associated with the offending conduct and the disability.


What is the criterion for a magistrate to consider before making an order under Section 32?

Firstly, that the defendant is eligible.

Secondly, that it would be more appropriate to deal with the defendant through under a section 32 order and diversion into treatment and support, than otherwise through the normal criminal law process of pleas, hearings, sentencing and the like.

In deciding whether it is more appropriate, the Magistrate needs to balance two competing public interests namely, the public interest in a person convicted of a criminal offence facing the full weight of the law against the public interest in diverting, supporting and treating a person with intellectual disability not to re-offend and thereby protect the community.

How long does an order under Section 32 last for?

Section 32 orders normally last 6 months. If a person breaches any one of the conditions within those 6 months (and it is reported to the Court) then they can be brought back before the court to be tried for the original charges in accordance with the normal process of the law.

What if I breach my conditions of a Section 32 order?

Breach proceedings can be taken in the event the Court is advised the person has failed to comply with their conditions. The person can be dealt with for the offence as if diversion had not occurred.

Case Study - Intimidation Casuing Fear of Physical or Mental Harm
Our client was charged with intimidation causing fear of physical or mental harm.

The prosecution alleged that our client had intimidated his ex-girlfriend by holding a petrol canister towards the victim, threatening to pour petrol all over her and then “light her up”.

After seeking instructions from the client it became clear that our client was suffering from a mental condition at the time of the incident. This was confirmed by his treating psychologist.

At Parramatta Local Court, our dedicated solicitor asked the court to deal with this offence under Section 32 of the Mental Health (Forensic Provisions) Act 1900 NSW.

A psychologist report and a treatment plan were tendered in support of the application. The Magistrate agreed with our solicitor and dismissed the charged conditionally on the basis that our client complies with his treatment plan.

He continues treatment, and is doing well with his treatment.

Case Study - Common Assault – Section 32 – Severe Depression Following Family Death
Our client was charged with common assault, she reported the victim borrowed approximately four thousand dollars from her with an agreement the money will be repaid in 12 instalments.

The victim made a number of repayments, however failed to repay the complete amount.

On the date of the offence our client attended the panthers club and saw the victim gambling, our clients spoke to the victim to discuss the outstanding loan, during which the victim refused to repay.

Our client became frustrated watching the victim gambling and she lashed out at the victim a number of times.

In preparing this case, Adam sought to apply for an order under section 32 of the Health (Forensic Provisions) Act NSW 1990, as our client suffered from significant degree of emotional upset due to her husband committing suicide and almost killing herself and her daughter.

A psychologist report was prepared to outline the symptoms she is suffering and it stipulated during the time of the offence she had suffered from a mental condition.

The matter went before Magistrate Bailey at Liverpool Local Court who found that our client was suffering from a mental condition at the time of the offence and the matter was dismissed. This was a positive outcome for our client.

Case Study -Section 32/ Use carriage service to threaten- Client suffering from Severe Depression
Our client was charged with Using Carriage service to threaten her boyfriend. She had been suffering from serious depression prior, during and after the commission of the offences. She was a person of good character that was obviously not of a violent disposition.

Our solicitor sought a section 32 under the Mental Health (Forensic Provisions) Act 1990, citing that our client had received counselling from her Psychologist for months prior to the offence, and continued with that counselling during the court proceedings.

We obtained a comprehensive Psychological report detailing her condition, a suitable treatment program and prognosis for her court hearing at Sutherland Local Court in June 2015.

The case appeared before Magistrate Bugden, who agreed with our application and proceeded to discharge our client into the care of her parents.

An excellent result for our client.

Case Study - Larceny -Section 32 - Mental Health Episode
Our client was charged with six counts of larceny amounting to about $1,000. She had entered six different shops and took multiple items of clothing.

After being stopped and questioned by police, she had returned all the items.

Our client has had a history of mental health issues including major depression. As a report was written by a psychologist. Within this report it stipulated that our client has previously had a miscarriage and had no support system after moving to Australia. She was experiencing a mental episode during the offence.

The client was pushed to continue therapy by our solicitor and go to a sleep clinic before her court date. We asked the court to deal with our client pursuant to section 32 of the Mental Health (Forensic Procedure) Act to divert her away from the criminal justice system and into a treatment plan for 6 months.

Magistrate O’Brien found great merit in our client’s application and discharged her into the treatment of her psychologist and dismissed the charges against her