Plenty of legal terms turn into everyday shorthand once you have spent any time in the Local Court. A “section 10” is a common one. A “section 14” is another, and it is one we are asked about often, usually by families trying to work out whether a mental health condition or disability can be taken into account before a matter goes any further.

The short answer is that it can, in the right circumstances, but it is not automatic. Here is how a section 14 application actually works.

What Is a Section 14 Application?

A “section 14 application” is an application made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Previously known as a “section 32 application”, it allows a magistrate to deal with a person through appropriate treatment, support or supervision instead of the ordinary criminal process.

Because these applications are dealt with in the Local Court, the decision maker is a magistrate rather than a judge.

The application may be available where the defendant has a mental health impairment or cognitive impairment. This may include certain psychiatric conditions, intellectual disability, autism or dementia, for example. However, the existence of an impairment does not automatically mean that an application will succeed. The magistrate must decide whether making an order is more appropriate than dealing with the charge in the usual way.

How Is a Section 14 Different From a Section 10?

This is worth separating out, because the two are often confused.

A section 10 comes from the Crimes (Sentencing Procedure) Act 1999 (NSW). It applies after the court has found the offence proven, and it allows the court to deal with the matter without recording a conviction.

A section 14 order works differently. The charge is dismissed and the person is discharged, and that dismissal is not a finding that the charge has been proven. The focus is on treatment and support rather than punishment.

What Orders Can the Magistrate Make?

If the application is granted, the magistrate may dismiss the charge and discharge the defendant:

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

The order is not a finding of guilt.

What Happens If a Condition Is Breached?

If a condition is breached within 12 months, the defendant may be brought back before the court and the criminal proceedings may resume. The magistrate can deal with the charge as though the person had never been discharged, and can order the person to appear or issue a warrant if they do not.

In practical terms, this is why a realistic plan matters more than an ambitious one. A treatment plan the person cannot reasonably follow puts them at risk of being back before the court within the year.

What Evidence Does the Court Need?

The court will usually require a report from a suitably qualified professional, such as a psychiatrist or psychologist. The report should explain:

• the person’s diagnosis and symptoms;
• whether the condition satisfies the legal definition of a mental health impairment or cognitive impairment;
• how it may relate to the alleged offending; and
• what treatment or support is recommended.

A practical treatment plan is particularly important. Medical records, disability support plans, information from carers or family members and confirmation from proposed treatment providers may also assist.

That last point is easy to overlook. A plan that names a service the person is not yet enrolled with carries far less weight than one backed by written confirmation that a place is available.

What Does the Process Usually Involve?

The usual process involves obtaining the person’s medical history, arranging an assessment and preparing a workable treatment or support plan. The clinical report and supporting documents are then provided to the prosecution and the court before the application is heard. At the hearing, submissions are made about why diversion under section 14 is appropriate.

Because assessments and reports take time to arrange, these steps are usually started well before the hearing date rather than in the week leading up to it.

What Will the Magistrate Take Into Account?

The magistrate may consider the seriousness of the alleged offence, the person’s criminal history, public safety, prospects of treatment and any connection between the impairment and the alleged conduct.

The legislation also allows the magistrate to look at the nature of the apparent impairment, the sentencing options that would be available if the matter proceeded and the person was found guilty, any changes in the person’s circumstances since the alleged offence, whether the person has previously been dealt with under a diversion order, and the content of any treatment or support plan.

No single factor decides the outcome. A section 14 application succeeds or fails on the strength of the whole picture put before the court.

Talk to Us About a Section 14 Application

Section 14 applications turn on preparation. The right report, a treatment plan that can actually be followed, and clear submissions about why diversion is appropriate all make a difference to how the court approaches the application.

If you or someone in your family is facing charges in the Local Court and a mental health condition or cognitive impairment may be relevant, get in touch to discuss your situation. Our experienced team will explain your options in plain English and help you work out the best way forward.