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Mental Health Defence: BSM success

This brief article deals with a successful mental health defence employed by the Brander Smith McKnight criminal team.  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:

  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 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.

How this Requirement Applied to our Client

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 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.

Why BSM Law?

The criminal lawyers at Brander Smith McKnight 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.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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