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Section 14 Applications

This article discusses section 14 applications which were previously known as  ‘section 32 applications’.  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 (the Act).  Section 14 applications came into effect in New South Wales 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 from a mental health or cognitive impairment. A successful section 14 application will mean that there will be no conviction recorded on someone’s record, as the matter is dealt with under a separate Act and there is no finding of guilt. 

What Is A Section 14 Application?

A section 14 application is one made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. It involves an application made to the court for the matters to be diverted to a different Act, upon the condition that you complete a mental health treatment plan overseen by a responsible person, which can last up to 12 months. 

A magistrate may make an order to divert charges under section 14 if:

  • The defendant has (or had at the time of the alleged offence) a mental health impairment or cognitive impairment, or both; and
  • That on the facts alleged and any other evidence, the magistrate believes it appropriate to deal with the defendant in this way rather than in accordance with law.There are 2 requirements 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

     

What are the Requirements for a Successful 14 Application?

Section 15 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 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

What Is A Mental Health Impairment?

A mental health impairment is defined in defined in section 4 of the Act, which states that a person has a mental health impairment if:

  • The person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and 
  • The disturbance would be regarded as significant for clinical diagnostic purposes, and 
  • The disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

The Act goes on further to provide examples of relevant disorders, such as:

  • An anxiety disorder,
  • An affective disorder, including clinical depression and bipolar disorder,
  • A psychotic disorder,
  • A substance induced mental disorder that is not temporary

The Act clarifies under section 4(3) that a person who was suffering from the temporary effect of ingesting a substance, or a substance use disorder, cannot be classed as having a mental health impairment. 

What Is A Cognitive Impairment?

A cognitive impairment is defined in section 5 of the Act, and states that a person has a cognitive impairment if:

  • The person has an ongoing impairment in adaptive functioning, and
  • The person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
  • The impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind

The Act goes on further to provide examples of relevant impairments, such as:

  • Intellectual disability,
  • Borderline intellectual functioning,
  • Dementia,
  • An acquired brain injury,
  • Drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
  • Autism spectrum disorder.

Making A Section 14 Order

Section 14 of the Act, allows for the court to dismiss the charge and discharge the defendant in one or more of the following ways:

  • Into the care of a responsible person, unconditionally or subject to conditions, or
  • 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
  • Unconditionally

After an application has been successful, the defendant, as ordered by the court, must abide by the mental health plan prescribed by the psychologist or other medical professional. Mental health plans often include weekly or monthly sessions with a psychologist, prescribed medication, or any other assistance that would be required by the individual. 

In most cases, an individual must be nominated as the ‘responsible person’ who is accountable for overseeing the mental health plan. This responsible person does not need to be a medical professional, however it is usually the defendant’s treating psychologist, counsellor, general practitioner, or in some cases, a parent or family member.  The responsible person is expected to notify the Court if the individual is not abiding by the mental health plan. 

Breaching A Section 14 Order

If the court finds or is notified that you are not abiding by the mental health plan outlined in the application, you can be brought back before the court with your matter being dealt with according to law. It is always advisable to continue complying with the mental health plan.

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.  Our lawyers have experience across all levels of courts in NSW and will confidently represent you.  We also have a panel of criminal barristers that we can call on if required.

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

We are conveniently located at Sutherland, Parramatta, Sydney CBD and Wollongong.

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