Mental Health Defence: BSM success
30 June 2022 in Criminal Law | 3 min read | skip to FAQsThis brief article deals with a successful mental health defence employed by the Brander Smith McKnight criminal lawyers. We successfully advocated for a client by arguing that criminal offences be granted a section 14 rather than being considered under criminal law. The client was not sentenced under criminal law and was discharged into the care of a responsible person, who in this case was his psychologist.
The Initial Charges and the Application
The client was charged with damaging property s195(1)(a) Crimes Act 1900 and contravening ADVO condition s14 Crimes (Domestic and Personal Violence) Act 2007 . BSM Lawyers applied under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 s14(1)(a).
The Requirements to Plead Section 14
There are 2 requirements, or limbs, to successfully plead section 14, the magistrate must be satisfied that:
- At the time of the offending, the person had a mental health impairment, a cognitive impairment or both
- 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 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 sets out relevant factors the magistrate may consider the nature of the mental health or impairment, the seriousness of the offence, the sentencing options, any criminal record, possible changes in circumstances, risks to others, previous section 14 or the presence of a treatment plan.
For further detailed information on section 14, please see our dedicated article on Section 14 applications.
How this Requirement Applied to our Client
In the recent Brander Smith McKnight legal 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.
The criminal lawyers at Brander Smith McKnight Sydney Lawyer argued that it was appropriate for section 14 to be granted for our client. Upon hearing our submissions, the magistrate ultimately agreed that it was appropriate for the section 14 to be granted. Accordingly, the client 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.
How can BSM Sydney Lawyers assist you?
The criminal lawyers at BSM Sydney Lawyers are experienced in successfully arguing for some criminal offences to be granted a section 14 rather than being sentenced under criminal law. Section 14 was previously considered under Section 32 and allows a person with mental health issues to be treated in a more compassionate and appropriate manner by the legal system using a mental health defence. Our senior criminal lawyers offer a free 20-minute consultation and will outline a strategy for your defence.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
FAQs
What is a Section 14 Application in a Criminal Case?
A section 14 application is an avenue for criminal matters to be diverted and dealt with under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
Section 14 applications came into effect in NSW in 2021 and are used when an individual who has been charged with a criminal offence, and at the time of the offence, was suffering with a mental health or cognitive impairment. A successful section 14 application will mean that there is no criminal conviction recorded, as the matter is dealt with under a mental health act and there is no finding of guilt.
Section 14 offers a therapeutic alternative for ongoing mental health treatment and support rather than punishment. It is based on the belief that it is more appropriate to deal with the defendant in accordance with the mental health act. This means that the accused may be discharged into the care of a responsible person, placed under treatment conditions, or subject to other community-based supports. The individual may also be required to comply with a treatment plan for up to 12 months. Section 14 offers a therapeutic, non-punitive alternative that prioritises rehabilitation and ongoing mental health support.
The experienced criminal lawyers at BSM Sydney Lawyers have extensive experience with successful section 14 applications. Call for a free 20 minute consult to discuss your case.
What makes a Section 14 Application Successful in Court?
There are 2 requirements, to successfully plead a section 14, the magistrate must be satisfied that:
- At the time of the offending, the person had a mental health impairment, a cognitive impairment or both
- And that they determine that the most appropriate way to deal with the offender is under these provisions.
In relation to the second requirement, the magistrate may consider the nature of the mental health or impairment, the seriousness of the offence, the sentencing options, any criminal record, possible changes in circumstances, risks to others, previous section 14 or the presence of a treatment plan. For further detailed information, please see our article on Section 14 applications.
BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.
About the Author
Aaron FanousBachelor of Laws I Bachelor of Science I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileAaron Fanous is a passionate senior lawyer that has worked with BSM Lawyers for five years. He holds a Bachelor of Laws and a Bachelor of Science from the University of Wollongong and a Graduate Diploma of Legal Practice. Aaron delivers consistent successful outcomes for his clients. He continues the Brander Smith McKnight tradition of meticulous preparation to ensure the best possible outcomes for his criminal clients. Aaron is a highly valued member of the criminal defence team and frequently delivers successful outcomes for clients in need of section 14 protections.
