Overview
If you have been charged with an offence and suffer from a mental illness, you may be able to make an application in the Local Court for a section 14 order. Section 14 applications are governed by the Mental Health and Cognitive Impairment Provisions Act 2020 (“the Act”). Section 14 replaced section 32 of the previous legislation, the Mental Health (Forensic Provisions) Act 1990.
A section 14 application, if successful, will mean that there is no conviction recorded against you in respect of your charges, provided you comply with a mental health treatment plan.
In order to successfully make a section 14 application, you are required to establish:
1. That you have a mental health impairment or cognitive impairment (or had such an impairment at the time of the offending conduct);
2. That you are not “mentally ill” as defined in the Mental Health Act 2007 (NSW); and
3. That it is more appropriate for the Court to deal with you under section 14 than otherwise in accordance with the law.
Mental Health Impairments and Cognitive Impairments
A mental health impairment is an impairment that causes a significant temporary or ongoing disturbance of your thought, mood, volition, perception or memory, such that your emotional wellbeing, judgment or behaviour was impaired at the time of the alleged conduct.
Examples of conditions that may qualify as a mental health impairment include anxiety, depression and bipolar disorder.
Similarly, a cognitive impairment is an impairment which causes a reduction in your adaptive functioning, comprehension, reason, judgment, learning or memory. Conditions which may constitute a cognitive impairment include intellectual disability, dementia, brain injury, autism and drug or alcohol related brain damage.
When is a Section 14 Order Appropriate?
In considering whether it is more appropriate to deal with you under section 14 than otherwise, the Court will consider several factors, which include:
1. The nature of your mental health impairment or cognitive impairment;
2. The nature, seriousness and circumstances of your alleged offending;
3. The suitability of the sentencing options available if you are found guilty of the offence;
4. The relevant changes in your circumstances since the alleged offending;
5. Your criminal history;
6. Whether you have previously been the subject of a section 14 order;
7. Whether a treatment or support plan has been prepared for you and, if so, the content of that plan; and
8. Whether you are likely to endanger the safety of yourself, the victim or any other member of the public.
Requirements of a Section 14 Application
In order for a section 14 application to be successful, you will require a report prepared by a psychologist or psychiatrist, going to your relevant personal history and mental health, the connection between your mental health and offending and confirming that you have a mental health or cognitive impairment.
The report should also include a treatment plan, which may require you to see a GP or specialist (such as a psychologist or psychiatrist) on a regular basis, take certain medications, or abstain from drug and alcohol use.
A section 14 application should also include a letter from a responsible person who can supervise the treatment plan set out in the expert report and report any breaches, such as your treating GP, psychologist or psychiatrist.
Other documents which may support a section 14 application include medical records establishing your history of mental health or cognitive impairment, character references from friends and family members and/or a letter of apology.
Outcome of a Section 14 Application
If you are successful in your section 14 application, the Court will discharge you into the care of a responsible person, either unconditionally or conditionally. If the order is made conditionally, then you will be required to follow the treatment plan set out in the expert report, for a period of 12 months.
Alternatively, under section 13 of the Act, it is open to the Court to adjourn proceedings against you to enable your mental health impairment or cognitive impairment to be assessed or diagnosed, to allow a treatment plan to be developed or a responsible person identified or to give you an opportunity to implement your treatment plan, subject to which the Court may then dismiss the charges against you.
Importantly, if you fail to comply with your treatment plan or the terms of any order made by the Court, you may be brought back before the Court and face criminal penalty.
Case Studies
The criminal law team at Uther Webster & Evans is experienced in preparing section 14 applications for a range of criminal conduct.
In one recent matter, our firm acted for a client who was charged with stalking and intimidation with intent to cause fear of physical harm. The client was alleged to have intimidated a retail worker in front of several witnesses and had a criminal record. Despite the client’s prior record, UWE successfully ran a section 14 application, on the basis that the client’s bipolar disorder, ADHD and PTSD had materially contributed to the offending conduct. Accordingly, the magistrate dismissed the charges and released the client into the care of his treating psychologist.
In another matter, our firm acted for a client who was charged with three offences: common assault, using a weapon with intent to commit an indictable offence and contravention of an AVO. The client had used a hammer to strike the victim on the head and rib (whilst the victim wore protective gear). Notwithstanding the objectively serious nature of the conduct and the number of charges, the magistrate agreed to make a section 14 application, ruling that the client had been under an impairment at the time of the conduct arising from his bipolar disorder.
The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for a section 14 application, please contact our experienced criminal law team.
