Section 14 (was section 32) Mental Illness

Section 14 Mental Illness Defense (was section 32)

If you suffer from mental illness, Australian Criminal Law Group has Sydney’s best criminal lawyers for section 14 applications (was section 32) to have your criminal charges dismissed.

Mental health is no longer the taboo subject it once was with the community and governments of Australia. We now acknowledge the terrible impact it is having on people’s lives. The courts have recognised the need for people with mental illnesses to be treated with particular care when being sentenced. Often extending leniency to people diagnosed with certain conditions. These include anxiety, depression, post-traumatic stress disorder, autism, bi-polar, and schizophrenia.

Our criminal lawyers are experts at arguing that people who suffer mental illness should have their criminal charges dealt with by a mental health order or section 32. This means they receive no criminal record or other punishment.

Below is information about section 32s. If you need representation or criminal law advice, make a website enquiry or call our free 24/7 criminal law hotline on 8815 8167.

What is a Mental Health Order (old section 32 order)?

A mental health order diverts people out of the criminal system and into the care of their treating psychologist, psychiatrist, or general practitioner within the community. 

You will be eligible for a mental health order or section 32 order, if you are developmentally disabled, suffering from mental illness, or suffering from a mental condition for which treatment is available in a hospital, but not a mentally ill person. A mentally ill person is someone who presents a real risk of harm to themselves or others. 

Changes to Section 32 orders (now section 14);

New legislation around mental health in criminal law has come into place as a result of recommendations submitted to parliament following the NSW law reform commissions 2013 of key forensic mental health provision.  The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 24 March 2021 replacing the old Mental Health (Forensic Provisions) Act 1990.   

The main changes to the legislation include those made to the insanity plea and determining fitness to stand trial.   Tests to determine mental competence are now part of statutory law for both.  The new legislation also removes old and outdated language in place of plain English to make the legislation more accessible to everyone.  

The new legislation for diversion or Mental Health Orders has been largely modeled off section 32 with further guidance for the magistrate to take into consideration when making a diversion decision.   

The new legislation stresses the importance of the safety of victims and the community and puts emphasis on this in relation to decisions by the court.    As such, the additional considerations for the magistrate in making a mental health diversion order include; the seriousness of the offence; the criminal history of the defendant; and if and what alternative sentencing options are available to the court.  

More thorough details regarding the treatment plans and supervising doctors’ information are also now required by the court as part of the new legislation.  This includes things such as whether the person has a history of diversion orders, whether there is a proper treatment plan, and the details of those plans. 

The other major change is in relation to the time period a person can be called back to court should they re-offend.  Previously, the magistrate was empowered to call the defendant back to court only within a 6 month period from when the order was made, should the defendant reoffend and/or not comply with the treatment.   This has now been extended to 12 months.  

How do our criminal lawyers get Mental Health Orders (old section 32s)?

To get section 32s for our clients, we obtain reports from the best psychologists and psychiatrists. The choice of psychologists and psychiatrists we use has a varied price range. This ensures none of our clients are stopped from running a section 32 because they have limited financial means. 

Our reports have treatment plans that give the courts confidence in using section 32.

What else will the court consider in deciding whether to give me a section 32?

Our criminal lawyers argue that it is more appropriate to deal with you by way of section 32 order than by punishing you under the criminal law. 

In considering the appropriateness, the court will consider:

  • The seriousness of the offence and facts alleged against you. 
  • Your criminal record (if you have one).
  • What the mental illness is and what caused its onset.
  • The link between the mental illness and offending.
  • Past and present treatment you have received.
  • The treatment plan proposed for the future. 

What will happen to me if I get a Mental Health Order (old section 32)?

A section 32 lasts for six months. Conditions of the mental health order (old section 32) can include:

  • Continuing treatment with your psychiatrist or psychologist. 
  • Taking prescribed medication.
  • Abstaining from drugs and/or alcohol and submitting to testing.

Section 32 cases

Offences for which our criminal lawyers have obtained mental health orders (section 32) for include:

  • High Range drink driving;
  • Driving while Disqualified;
  • Supply and possession of drugs, including methylamphetamine, cocaine, and MDMA;
  • Domestic violence;
  • Common assault;
  • Assault occasioning actual bodily harm;
  • Recklessly inflicting grievous bodily harm;
  • Reckless wounding;
  • Affray;
  • Various sex offences including indecent assault.


Sources:  Crimes Act 1900 No 40, Section 14.  Current Version for 1 January 2022 to date (accessed 29 March 2022).

This information is intended as a general guide to law only.  It should not be relied on as legal advice, and it is recommended that you speak with a qualified lawyer about your situation.

Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, Australian Criminal Law Group makes no warranties or representations as to its accuracy. 

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