If you have a mental health condition or a cognitive impairment and you have been charged in New South Wales, the law has a pathway to deal with your matter through treatment instead of punishment. It is a mental health application under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, still widely known by its old name, a section 32. If it succeeds, the charge is dismissed and no conviction is recorded.
This is general information about NSW law, not legal advice about your matter. For advice on your situation, speak to a criminal lawyer.
What is a section 14 application?
A section 14 application asks the Local Court to deal with you outside the usual criminal process because of a mental health impairment or a cognitive impairment. If the magistrate agrees, the charge is dismissed and you are discharged, usually on conditions that involve treatment and support.
Two points matter most. A dismissal under section 14 is not a finding of guilt, and no conviction is recorded, so it does not show up as a criminal conviction on your record. The court keeps a record of the order and can take it into account if you apply again later, but that record is not a conviction.
It applies in the Local Court, to summary offences and to indictable offences dealt with summarily. It is not available for matters that stay in the District Court.
Does your condition qualify?
You need a mental health impairment or a cognitive impairment, now or at the time of the alleged offence. A diagnosis on its own does not decide it. The court looks at whether the condition is connected to the offending and whether treatment is the more appropriate way to deal with the case.
A mental health impairment can arise from conditions such as:
- anxiety
- clinical depression
- bipolar disorder
- a psychotic disorder
It does not cover impairment caused only by intoxication or by a substance use disorder.
A cognitive impairment can arise from conditions such as:
- intellectual disability
- dementia
- an acquired brain injury
- foetal alcohol spectrum disorder
- autism spectrum disorder
What the court can do, and how it decides
If the application succeeds, the magistrate dismisses the charge and discharges you, usually with conditions tied to a treatment or support plan that can run for up to 12 months.
The decision is discretionary. The magistrate weighs whether treatment is more appropriate than the ordinary criminal process, looking at things like the seriousness of the offence, your criminal history, community safety, and the strength of your treatment plan. A strong, well-evidenced plan is often what tips a borderline matter toward diversion, which is why preparation counts.
What the process looks like
A section 14 application stands or falls on the evidence put before the court. The usual steps:
- A medico-legal report is commissioned. Peter can recommend an appropriate psychiatrist or psychologist.
- You attend an interview with the expert, often two to three hours.
- The expert prepares a detailed report explaining why the offending happened and why it is unlikely to happen again.
- A treatment or support plan is developed, usually alongside your current treating professionals.
- The report and plan are tendered to the court.
If you are discharged on conditions and do not comply, the court can call you back within 12 months and reinstate the original charge, so following the plan matters.
How a barrister helps
A section 14 application is one of the areas where preparation makes the most difference. An experienced criminal barrister works out whether your matter suits a section 14, arranges the right expert, shapes the plan with your treating professionals, and makes the case to the magistrate for why diversion fits your circumstances.
Peter Godkin is an experienced criminal barrister at 8 Windeyer Chambers in the Sydney CBD, called to the NSW Bar in 2014, and a member of the Legal Aid Mental Health panel. He takes work directly from the public and on referral from solicitors, and offers a free first one-hour conference to talk through your charge and whether a mental health application may be open to you.
If you are facing court and think a mental health condition or cognitive impairment is relevant to your case, call 02 9235 3033 to arrange a free first conference.
Frequently asked questions
Does a section 14 give me a criminal record? No. If the application succeeds, the charge is dismissed and no conviction is recorded. A dismissal is not a finding of guilt.
Will I go to prison if I get a section 14? If a section 14 succeeds, the charge is dismissed and no penalty is imposed for it, so there is no sentence or prison term for that matter. Whether it is granted depends on the seriousness of the offence and the court’s view of community safety, so it is not open in every case.
How long does a section 14 application take? It depends on the matter. Commissioning the report, attending the interview and preparing a treatment plan usually takes several weeks, and the application is heard once that material is ready.
Can I make a section 14 application myself? You can. These applications turn on expert evidence and on persuading the magistrate that diversion is appropriate, so most people are better served by a lawyer who can arrange the report, shape the plan and make the submissions to the court.
Is a section 14 the same as the old section 32? Yes, in effect. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021 and replaced the Mental Health (Forensic Provisions) Act 1990. Section 14 took over from the former section 32.
This article is general information about NSW law and is not legal advice. Every case turns on its own facts and clinical evidence. For advice about your matter, speak with a criminal lawyer.
Further reading: Judicial Commission of NSW, Local Court Bench Book (mental health provisions): https://www.judcom.nsw.gov.au/publications/benchbks/local/mental_health_and_cognitive_impairment_forensic_provisions.html