Following on from our recent post on section 10, we thought it would be interesting to shed some light on another legislative provision that has long formed part of the foundation of every criminal lawyer’s vocabulary. “Section 32” refers to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA), which provides a magistrate in the criminal justice system with a method of dealing with defendants suffering from a mental illness or condition.

A lawyer will make a section 32 application on behalf of their client when they believe that it is necessary to divert the defendant away from the criminal jurisdiction so that they may be more properly dealt with under the MHFPA. When considering a section 32 application, the magistrate’s powers are inquisitorial rather than adversarial in nature and the magistrate can inform him or herself in any way they see fit but without requiring the defendant to incriminate him or herself. There is no prescribed form for an application and generally applications are made orally. Magistrates will most often rely on written reports from experts and service providers and generally there is no need for the applicant to give evidence. Essentially, a section 32 application is a 3 step process when being considered by the Magistrate.


Step 1

The first step is the jurisdictional question and is a finding of fact about whether or not the person is eligible to be dealt with under the section. The magistrate must be satisfied that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person. (section 32(1)(a))

It is not within the scope of this blog to discuss in detail the classification of different illnesses and disorders, however, it is important to highlight that while a section 32 order is available to a person suffering from a mental illness it is not available to a mentally ill person, which is defined at section 14 of the Mental Health Act 2007 (NSW).


Step 2

If the application is successful under Step 1, the next question for the magistrate to consider is whether or not, on an outline of the facts alleged in the proceedings or such other evidence as the magistrate may consider relevant, it is more appropriate to deal with the person under section 32 than in accordance with law. (section 32(1)(b))

If the application is brought at the commencement of proceedings, it is at this step that the alleged police facts in the matter are tendered to the magistrate for consideration. The particular facts giving rise to the offence(s) for which the defendant is before the court is relevant, rather than the type of offence(s) (Confos v DPP [2004] NSWSC 1159 [21]). Therefore, the magistrate may be falling into appellable error if they refuse to deal with a particular category of offence under section 32.

Due regard must be “paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act” (Confos at [17]). However, the “the section 32 diversionary regime is available to serious offenders as long as it is regarded, in the magistrate’s opinion, as more appropriate than the alternative. No doubt a magistrate considering that question will consider whether proceedings in accordance with s 32 will produce a better outcome both for the individual and the community.” (DPP v El Mawas [2006] NSWCA 154 [79])

It is also important to note that there is no requirement in the legislation that a link between the offending conduct and the person’s disability be established.


Step 3

If the jurisdictional question is satisfied and the magistrate decides that it is more appropriate to deal with the matter by way of section 32 than at law, the magistrate must then decide what orders should be made.

Subsections (2) and (3) set out the actions that the magistrate may take:

(2) The Magistrate may do any one or more of the following:

(a) adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013 ,

(c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or

(c) unconditionally.

It is a well-established sentencing principle that people with mental disorders are not appropriate vehicles for general deterrence. In Muldrock v The Queen [2011] HCA 39, the High Court said, “the retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community…” There is no requirement in the legislation for a support or treatment plan to be presented as part of a section 32 application. However, very often a support plan will be required in order for the application to be successful.

A final order to a section 32(3) order may only last for six months. However, in practice a magistrate may make interlocutory orders pursuant to section 32(2) to considerably extend that period to ensure that the defendant complies with any treatment or support plans for the recommended period (if the period recommended by the medical expert is greater than six months).


If the section 32 application is successful, the defendant is neither found guilty nor not guilty. The magistrate has ruled that the defendant must stick to the agreement in the order. This is an undertaking to the magistrate. It is essential that the defendant complies with any conditions of the orders made, otherwise they might have to come back to court to have the matters dealt with again in accordance with law. If you, or somebody you know, has been charged with an offence and are currently suffering from a mental illness or condition, it is crucial that expert legal advice is obtained immediately. Please contact our office to arrange for a free initial consultation.

Author Johnsons Law Group

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