BSM successfully defends ADVO and property damage charges with Section 14 of Mental Health Act

30 June 2022 in Criminal Law

The criminal lawyers at BSM successfully advocated for a client who was charged with damaging property s195(1)(a) Crimes Act 1900 and contravening ADVO condition s14 Crimes (Domestic and Personal Violence) Act 2007 by using an application under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 s14(1)(a).

Simply put, the defendant was not sentenced under criminal law and was discharged into the care of a responsible person, who in this case was his psychologist.

There are 2 requirements (or limbs) to successfully plead section 14, the magistrate must be satisfied that:

1. At the time of the offending, the person had a mental health impairment, a cognitive impairment or both
2. And that they determine that the most appropriate way to deal with the offender is under these provisions.

In relation to the second requirement, section 15 of the Act sets out relevant factors the magistrate may consider:

1. the nature of the defendant’s apparent mental health 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 offence
5. the defendant’s criminal history
6. whether the defendant has previously been the subject of an order under this Act or s32 of the Mental Health (Forensic Provisions) Act 1990
7. whether a treatment or support plan has been prepared 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

In the recent BSM Law matter, the first requirement was satisfied as our psychiatric report established that the offender was suffering with a depressive illness and possible ADHD. The magistrate then turned to the second limb to consider the relevant factors.

The prosecution opposed the application and one of the issues was that the defendant was significantly intoxicated at the time of the offence. Often a significant degree of intoxication can lead to the conclusion that section 14 may not be appropriate as it can be inferred that the defendant’s intoxication is the significant cause of their offending.

Brander Smith McKnight argued that it was appropriate for section 14 to be granted for our client. Upon our submissions, the magistrate ultimately agreed that it was appropriate for the section 14 to be granted.  Accordingly, he was dismissed into the care of his psychologist and required to comply with the treatment plan proposed by the psychiatrist for a period of 1 year.

The criminal lawyers at Brander Smith McKnight are experienced in successfully arguing for some criminal offences to be granted a section 14 (previously considered under section 32) rather than being sentenced under criminal law.