Section 32 Applications- Mental Health (Forensic Provisions) Act 1990


What are section 32 Applications?

Are you or someone you know charged with a criminal offence suffer from a mental condition? Have you previously been treated for a mental condition or psychological condition? Section 32 applications are very often made in the Local Court in these circumstances.

It may be that you have an un-diagnosed mental or psychological illness that contributed to the offending behavior for which it is alleged you have committed.

If so, you may be eligible to be dealt with under the Mental Health (Forensic Provisions) Act 1990, and be diverted from the normal sentencing procedures of the Crimes (Sentencing Procedure Act) 1999.

Section 32 applications are applications pursuant to Section 32 Mental Health (Forensic Provisions) Act 1990 to have charges dismissed without conviction. 
If an order is made by the court under section 32, the defendant is diverted from the criminal justice system and is diverted to a treatment program for their disability or illness.

A person may be eligible it appears to the Magistrate that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

  • developmentally disabled,
  • suffering from mental illness
  • suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person.

The effect of the order is to dismiss the charges either unconditionally or subject to conditions. Conditions usually relate to complying with a treatment plan, which is an outline of various steps to be taken to engage with services and support to address any issues associated with the offending conduct and the disability.

What is the Criteria Considered in Section 32 Applications?

Firstly, that the defendant is eligible.

Secondly, that it would be more appropriate to deal with the defendant through under a section 32 order and diversion into treatment and support, than otherwise through the normal criminal law process of pleas, hearings, sentencing and the like.

In deciding whether it is more appropriate, the Magistrate needs to balance two competing public interests namely, the public interest in a person convicted of a criminal offence facing the full weight of the law against the public interest in diverting, supporting and treating a person with intellectual disability not to re-offend and thereby protect the community.

The magistrate has the power to consider a wide range of competing considerations, when considering Section 32 applications, before determining whether to apply the section. Is there a connection between the defendant’s mental illness and the behavior the subject of the commission of the offence? How objectively serious are the offences, and on that view, should the defendant be allowed to avoid punishment according to the ordinary sentencing principles?

Section 32 orders normally last 6 months. If a person breaches any one of the conditions within those 6 months (and it is reported to the Court) then they can be brought back before the court to be tried for the original charges in accordance with the normal process of the law.

What happens when I breach a section 32 Order?

Breach proceedings can be taken in the event the Court is advised the person has failed to comply with their conditions. The person can be dealt with for the offence as if diversion had not occurred.

If you are considering making a Section 32 application, call LY Lawyers on 1300 595 299 for a free consultation with one of our experienced criminal lawyers.