How can an accused avoid a criminal conviction on mental health grounds in NSW?

There are three ways in which a person charged with a criminal offence in the Local Court can avoid having a criminal conviction recorded against their name:

1. Being found “not guilty” after a defended criminal hearing.
2. The charge being proven, but dismissed under section 10 of the Crimes (Sentencing Procedure) Act.
3. An order being made dismissing a criminal charge and discharging the defendant under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the MH&CIFP Act”).

How is s 14 satisfied?

For a defendant to be dealt with under section 14, the following have to be satisfied:

1. The defendant has, or had at the time of the commission of the offence, a mental health impairment; or
2. The defendant has, or had at the time of the commission of the offence, a cognitive impairment; and
3. It would be more appropriate to deal with the defendant under the MH&CIFP Act than otherwise according to law; and
4. The defendant is not a mentally ill or mentally disordered person.

What does the court consider in deciding whether or not to make an order?

Previously, courts decided whether or not to make a mental health order based on principles expounded in cases such as Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154.

Section 15 of the MH&CIFP Act now codifies these principes. The criteria under section 15 are:

• What is the nature of the defendant’s apparent mental health impairment or cognitive impairment?
• What is the nature, seriousness and circumstances of the alleged offence?
• How suitable are the sentencing options available, if the defendant is found guilty of the offence?
• Have there been any relevant changes in the circumstances of the defendant since the alleged commission of the offence?
• Does the defendant have a criminal history?
• Was the defendant previously dealt with under the MH&CIFP Act or under s 32 of the Mental Health (Forensic Provisions) Act
• Has a treatment or support plan has been prepared? What is the content of the plan?
• Is the defendant likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public?
• Any other relevant factor.

How do I make a s 14 application?

Step 1: Get advice from an experienced criminal lawyer as to whether you satisfy the criteria for making a mental health application.

Step 2: If you do, your criminal solicitor will approach an appropriate psychologist or psychiatrist to assess you.

Step 3: The psychologist/psychiatrist will assess you and provide your criminal lawyer with a s 14 report.

Step 4: A Local Court magistrate will hear the Section 14 Application. At the hearing, your defence lawyer will present evidence and submissions on your behalf. The prosecutor will make submissions; usually opposing the application.

Step 5: The magistrate will make a decision on whether to grant the application.

What happens if the court refuses your mental health application?

All is not lost if the court refuses your section 14 application.

Depending on the stage your case is at, your criminal lawyer can:

1. Enter a plea of not guilty and defend the criminal charges laid against you;
2. Seek that you be dealt with under section 10 of the Crimes (Sentencing Procedure) Act; or
3. Enter a plea of guilty and seek leniency in your sentencing based on your mental health.

What is a mental health impairment?

Under section 4 of the MH&CIFP Act, a person has a mental health impairment if:

(a) they have a temporary or ongoing disturbance of thought, mood, volition, perception or memory;

(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

Examples of a mental health impairment are:

(a) an anxiety disorder

(b) clinical depression or a bipolar disorder

(c) a psychotic disorder

(d) a substance induced mental disorder that is not temporary.

What is a cognitive impairment?

A person has a cognitive impairment if (see s 5 of the MH&CIFP Act):

(a) they have an ongoing impairment in adaptive functioning;

(b) they have an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c) 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 reasons such as:

(a) intellectual disability

(b) borderline intellectual functioning

(c) dementia

(d) an acquired brain injury

(e) drug or alcohol related brain damage

(f) autism spectrum disorder.

What is the difference between the MH&CIFP Act and the Mental Health (Forensic Provisions) Act?

From 27 March 2021, the NSW Local Court has been dealing with mental health applications under the MH&CIFP Act. Prior to this, those applications were being dealt with under the Mental Health (Forensic Provisions) Act.

While the substance of the two acts remains the same, key changes include:

• The factors that the court is to take into account in arriving at its decision are now listed.
• A magistrate can now order that a defendant who they suspect has failed to comply with a condition of an order to appear before them within 12 months of an order being made. Previously, this period was six months.
• Mental health impairment and cognitive impairment are now defined.
• The common law defence of mental illness (see R v Presser [1958] VicRp 9; the M’Naghten test) has now been incorporated in s 36 of the MH&CIFP Act. Section 36 sets out non-exclusive criteria based on which a person is taken to be unfit to be tried for an offence. The section applies to a mental health impairment or cognitive impairment; or both.

If you have been charged with a criminal offence and believe that your mental health may have affected your actions, feel free to contact our specialist criminal lawyers on 0433 847 892 or info@opallegal.com.au for a free initial consultation.