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The Mental Health Cognitive Impairment Forensic Provisions Act 2020 in NSW offers a framework diverting individuals with mental health issues from the criminal justice system. It prioritises rehabilitation over punishment. Successfully meeting diversion criteria leads to complete dismissal of criminal charges (meaning no finding of guilt or innocence).
A Section 14 (previously known as a s32) refers to legal provisions in New South Wales (NSW), Australia, related to mental health and criminal charges.
Section 32:
Section 14:
Both Section 32 and Section 14 aim to provide a compassionate and rehabilitative approach, focusing on mental health treatment rather than punitive measures for individuals facing criminal charges whilst taking into consideration community expectations.
A 'section 14 application' is a mental health application for criminal charges to be dismissed without a conviction or 'finding of guilt'.
The benefit of obtaining a s14 application is that it allows a person to avoid a criminal conviction as there is no finding of guilt or innocence. Further, a s14 Application can be made at any time in the local court and more than once if certain criteria is met.
How to successfully obtain a s14 ?
In order to successfully obtain a section 14, you must satisfy the court of the following two main criteria:
1. You have a mental health impairment or cognitive impairment, and
2. It is more appropriate to deal with the matter under the act as opposed in accordance with law.
It is important to note that the mental health impairment could have been at the time of the offending and no longer present at the time of sentence.
What is a s14 order?
(1) A Magistrate may make an order to dismiss a charge and discharge the defendant--(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or
(c) unconditionally.
(2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.
What is a mental health Impairment?
The definition is under s4 of the Mental Health and Cognitive Impairment Forensic Provision Act 2020, a 'mental health impairment' is defined as:
(1) For the purposes of this Act, a
"person has a mental health impairment" if--(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
(2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons--(a) an anxiety disorder,
(b) an affective disorder, including clinical depression and bipolar disorder,
(c) a psychotic disorder,
(d) a substance induced mental disorder that is not temporary.
(3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by--(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
What is a cognitive Impairment?
The definition is under s5 of the Mental Health and Cognitive Impairment Forensic Provision Act 2020, a 'cognitive impairment' is defined as:
(1) For the purposes of this Act, a
"person has a cognitive impairment" if--(a) the person has an ongoing impairment in adaptive functioning, and
(b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
(c) 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.
(2) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons--(a) intellectual disability,
(b) borderline intellectual functioning,
(c) dementia,
(d) an acquired brain injury,
(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
(f) autism spectrum disorder.
What are the Considerations of Magistrate when making a s14 order?
In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following--
(a) the nature of the defendant's apparent mental health impairment or cognitive impairment,
(b) the nature, seriousness and circumstances of the alleged offence,
(c) the suitability of the sentencing options available if the defendant is found guilty of the offence,
(d) relevant changes in the circumstances of the defendant since the alleged commission of the offence,
(e) the defendant's criminal history,
(f) 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 ,
(g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
(h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,
(i) other relevant factors.
Our Criminal Lawyers specialise in s14 Applications. Contact us today.
If you have any questions or would like to schedule a consultation, please don't hesitate to contact us today.
Criminal lawyer Steven Mercael was successful in having a section 14 order made for a client charged with three counts of assault and intimidation. The client had assaulted and threatened 2 strangers on the street. She had a criminal record. Mr Mercael argued that despite the seriousness of the offending, and prior criminal record, his client could be dealt with under section 14 because of the nexus between her mental health impairments and offending. Mr Mercael argued that the combination of Attention Deficit/Hyperactivity Disorder, Post-traumatic Stress Disorder and borderline personality disorder, meant that it was not appropriate for the court to use her to set an example to the community that offending of a like kind would be punished. He argued the community would be best served by having her receive treatment in the community for 12 months. The Magistrate agreed and dismissed the charges without a conviction, making the section 14 order in the terms that Mr Mercael proposed.
Criminal lawyer Steven Mercael was successful in having a section 14 order made for a client charged with driving in a manner dangerous and assault occasioning actual bodily harm. Mr Mercael argued that his client was in a “drug-induced psychosis”, after smoking cannabis, when he fled his house in a car, to avoid 5G towers, and pushed his wife out of the vehicle in the process. The Magistrate, despite finding the offences serious, agreed with Mr Mercael that there was a nexus between the offending and mental health impairment and that his client had engaged well in treatment since committing the offences. The magistrate dismissed both matters under a Section 14 mental health order, meaning no conviction was recorded but ordered Mr Mercael’s client to continue treatment with a psychologist and remain on antipsychotic medication.
Please reach us at info@criminallawyersgroup.com.au if you cannot find an answer to your question.
A 'section 14 application' is a mental health application for criminal charges to be dismissed without a conviction or 'finding of guilt'.
A mental health treatment plan is 12 months.
If you breach a Section 14 order, then you can be brought back before the court for sentence in accordance to law if the breach is established.
A responsible person may be a health professional such as a treating psychologist or psychiatrist.
Yes, the magistrate can adjourn your case to enable you to be assessed and for any reason they see fit.
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