Mental Health Outcomes in Criminal Matters (Section 32 Application)
Mental Health and the Criminal Law
If you suffer from a mental illness, condition or disorder, or a developmental disability, and you have been charged with a criminal offence, you may possibly be eligible for a section 32 application under the Mental Health (Forensic Provisions) Act.
Arguments Pursuant to Mental Health Legislation:
Unfit for Trial
This may be because a person is so mentally unwell that they are unfit to be tried (an argument available in the District and Supreme Courts). or
Local Court Mental Health Outcome
In some circumstances, if a person is suffering from a mental illness, condition or disorder (or is developmentally disabled) on the facts alleged it may be more appropriate to deal with the person in accordance with the provisions of the Mental Health legislation rather than according to law (an argument available only in the Local Court).
Special Verdicts – Not Guilty by Reason of Mental Illness
Special verdicts of not guilty by reason of mental illness are also available if a person is fit to plead and is then tried (in the District and Supreme Courts).
Detention in a Forensic Mental Health Facility
Being found to be unfit to plead, or being found not guilty by reason of mental illness, will both result in the person being detained in a mental health facility.
Mental Health Discretion in Criminal Matters in the Local Court
The Local Court, however, has a wide discretion available to it to discharge a person into the community, usually on condition of compliance with a specific treatment plan, where a Magistrate is of the view that it is more appropriate to have a person treated for their illness, condition or disorder as opposed to imposing criminal sanctions, penalties and sentences.
Criminal Charges in the Local Court – Mental Health Considerations
If you are facing a criminal offence in the Local Court, and you suffer from a mental illness of any description, or suspect that you may suffer from a mental illness but have never been to a doctor who has made a diagnosis, make sure you advise your criminal Solicitor of this.
Section 32 Application or Other Relevant Mental Health Considerations
Experienced criminal advocates will advise you as to whether or not an application should properly be made to the Court to deal with you pursuant to the Mental Health legislation. This is known as a Section 32 Application, under s.32 Mental Health (Forensic Provisions) Act.
Even if you do not fit the criteria for a section 32 Application, your mental health issues may still have some relevance to the Court when determining how to construct your sentence.
Making a Successful Section 32 Application
Making a section 32 Application to the Court can be tricky. There are 2 discrete aspects to it. The first is whether the person charged fits the criteria to enable the Magistrate to deal with the matter pursuant to this diversionary measure, and the second is whether the person charged should be dealt with in that way (and this depends on a number of factors, including the nature of the offence, the relationship of the illness to the offending behaviour, subjective matters and so on). This is not an area of law where the person charged should attempt to represent him or herself. It requires a detailed understanding of this area of the law.
Our mental health criminal solicitors have made numerous successful section 32 applications, as well as other types of applications relating to mental health conditions as they may relate to criminal offences, and are very experienced with dealing with these types of matters
so call us on (02) 9533 2269 and ask about your options.
Brigitte Simeonides & Associates – Criminal Lawyers Sydney
Call - (02) 9533 2269
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