Section 32: Diverting Mentally Ill Offenders away from the Criminal Justice System

Posted by janelle.tarabay on 12 October 2017

Yesterday, Zoe appeared at Fairfield Local Court for a client that had been charged with Driving in a Manner Dangerous. This offence carries a maximum penalty of $2,200, 9 months’ imprisonment and an automatic 3 year licence disqualification. Upon reading the facts, the sentencing magistrate described the offence as being “in the worst category” for this type of offence.

In our client’s initial consultation with Zoe, it became apparent that at the time of the offence he may have been suffering from a mental illness that disabled his ability to control his conduct. Accordingly, Zoe immediately referred our client to a psychiatrist to obtain what is known as a “section 32 report.”

In New South Wales, section 32 of the Mental Health (Forensic Provisions) Act 1990 (‘the Act’) provides a diversionary provision for defendant’s who are found to be suffering from a mental illness or condition.

Essentially, section 32 diverts defendants who suffer from mental conditions away from the sentencing options of the criminal justice system. Instead, they are dealt with in an appropriate treatment and rehabilitative context that is enforced by the court.

Yesterday, Zoe made submissions to the magistrate as to why it was appropriate, in the unique circumstances of this case, to divert our client under the Act. Her submissions were supported by comprehensive evidence that she had collated, including a psychiatric report, medical documents and an affidavit from a family member.

Despite initial concerns that the matter was too serious to be dealt with under the Act, the magistrate was ultimately persuaded by Zoe and found that in the circumstances of this case, it was appropriate to divert our client away from the sentencing options of the criminal justice system.

As a result, the charges against our client were dismissed, on the condition that he abide by a treatment program as ordered by the court.

This meant that our client did not receive a criminal record and importantly, in contrast with a section 10 dismissal, there was no finding of guilt. Instead, he was dealt with in way that recognises the impact mental illnesses can have, and he was discharged into the care of a psychiatrist to receive ongoing treatment. This was a fantastic result for our client.

If you believe a section 32 may be appropriate in your matter, please contact us on 9025 9888 for advice and a free initial consultation.

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