Section 14: (NSW) A Comprehensive Overview

What is a section 14 application?

A section 14 application allows the court to deal with a criminal charge outside the conventional criminal framework where a person has a mental health or cognitive impairment.

It grants the Court with a broad discretion to divert persons charged with a criminal offence away from the criminal justice system and the usual forms of punishment into the care of a responsible person for treatment of their mental health or cognitive impairment.

The primary purpose of such an application is to divert defendants with mental health or cognitive impairments into an appropriate care to manage their conditions and reduce the likelihood of reoffending.

If the application is successful:

• The charge is dismissed,
• No conviction is recorded, and
• The defendant is diverted into the care of a responsible person for appropriate treatment and management of their condition.

This process recognises that some offences are closely connected to a person’s mental health or cognitive functioning and are better addressed through care rather than punishment.

Who can apply for a section 14 order?

A section 14 application may be available if:

• The matter is being heard in the Local Court jurisdiction,
• The person is charged with a criminal offence in NSW, and
• The person had a mental health impairment or cognitive impairment at the time of the alleged offence.

Each case is evaluated on its own merits, with eligibility contingent on medical evidence and the circumstances surrounding the incident.

Eligibility assessment – A Two Limb test

Before a judicial officer makes an order under s 14 of the Act, the Court must be satisfied that:

1. The defendant has (or have had at the time of the alleged offence) a mental health impairment or a cognitive impairment; and
2. Whether, on an outline of the facts and any other evidence as the judicial officer may consider relevant, it would be more appropriate to deal with an defendant in accordance with s 14, than otherwise under criminal law.

What is a mental health impairment?

A person has a mental health impairment if:

• The person has a temporary or ongoing disturbance of thought, mood, volition, perception, or memory; and
• The disturbance would be regarded as significant for clinical diagnostic purposes; and
• The disturbance impairs the emotional wellbeing, judgment, or behaviour of the person.

A mental health impairment may arise from any of the following disorders, but it can also arise for other reasons:

• An anxiety disorder,
• An affective disorder, including clinical depression and bipolar disorder,
• A psychotic disorder, or
• A substance induced mental disorder that is not temporary.

You are not considered to have a mental health impairment for the purposes of the Act if your impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.

What is a cognitive impairment?

A person has a cognitive impairment if:

• The person has an ongoing impairment in adaptive functioning, and
• The person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
• The impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind.

A cognitive impairment may arise from:

• Intellectual disability,
• Borderline intellectual functioning,
• Dementia,
• An acquired brain injury,
• Drug or alcohol related damage, including foetal alcohol spectrum disorder, or
• Autism spectrum disorder.

How is the Court satisfied that you might suffer from a mental health impairment or cognitive impairment?

The Court will rely upon a report from a forensic psychological or a forensic psychiatrist, or your treating clinical psychological or psychiatrist, to confirm your diagnosis. This is otherwise known as a mental health treatment plan or support plan.

It is a comprehensive report detailing the nature and history of your condition, any treatment you have previously received in respect of your condition, and a treatment plan for the future.

Is it more appropriate to divert?

The second limb requires the judicial officer to make a discretionary judgment as to the appropriateness of diverting the defendant, rather than dealing with the matter under the criminal law.

Section 15 of the Act provides the judicial officer with a non-exhaustive list of matters to take into consideration, including:

• The nature of the defendant’s apparent mental health impairment or cognitive impairment,
• The nature, seriousness, and circumstances of the alleged offence,
• The suitability of the sentencing options available if the defendant is found guilty of the offence,
• Relevant changes in the circumstances of the defendant since the alleged commission of the offence,
• The defendant’s criminal history,
• Whether the defendant has previously been the subject of an order under this Act,
• Whether a treatment or support plan has been prepared,
• Whether the defendant is likely to endanger the safety of themselves, a victim, or any other member of the public.

What orders can the Magistrate make?

If the first two limbs are satisfied, a Magistrate may make any of the following orders:

• Discharge the defendant unconditionally,
• Discharge the defendant on a condition that they attend a place or on a person for assessment, treatment, or support, or
• Discharge the defendant into the care of a responsible person, unconditionally, or subject to conditions.

What happens if I breach a section 14 order?

If you fail to adhere to the conditions, a Magistrate may:

• Order that you appear before the Magistrate,
• Issue a warrant for your arrest, or
• Deal with the criminal charge under the criminal law (resentencing).

How Our Firm Can Help

At Tempus Law, we regularly assist clients with Section 14 applications. We work closely with medical professionals to present the strongest possible case.