Wollongong Criminal Law has had a successful week with s14 Mental Health Applications, allowing for their clients to be diverted under the Mental Health Act rather than having their matters dealt with by way of law.

S14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 allows a person who has been charged with a criminal or traffic offence and suffers from a mental health or cognitive impairment to avoid a criminal record.

Ted Neaves represented a client who had been charged with several very serious offences, including stalk/intimidate with intent to cause fear of physical or mental harm and possess/threaten to use an offensive weapon with intent to commit an indictable offence (being an axe). The most serious of these offences carries a maximum of 12 years imprisonment. This matter required careful consideration and preparation as an s14 application is a careful balancing exercise for the magistrate. To our team, it was clear that our client was suffering from a mental health impairment, and it was our firm belief that he needed assistance psychologically, which the law couldn’t provide.

With the assistance of a report commissioned by a forensic psychiatrist, consultation with the client’s family and the preparation of careful submissions, Ted Neaves was able to persuade the court that it was more appropriate for the matter to be dealt with by way of diversion than it was by law. This was despite resistance from the prosecution, who believed that the offence was too serious and should be dealt with by law.

The client avoided a conviction for his matters and must comply with a treatment plan that addresses the significant impact their mental health has on their life.

Kody Worldon Geraghty also appeared on behalf of another client who had three matters listed for hearing with serious charges, including assault occasioning actual bodily harm against a police officer, contravene AVO and stalk/intimidate charges. Due to the client’s lower income, a report was commissioned by Justice Health that gave a background to our client and advised that they were suitable for diversion under the Mental Health Act. The application was opposed because the client had a history of previous diversions and community corrections. It was again a careful balancing act for the magistrate who had to consider submissions from both parties; however, they found that it was more appropriate that the client be placed into the care of their support worker and be diverted under the Mental Health Act, where a treatment plan could address the underlying causes of their offending.

Both these clients avoided convictions in matters that may have, in the alternative, attracted custodial sentences.

What is a ‘mental health impairment’?

A mental health impairment is a temporary or ongoing disturbance of thought, mood, volition, perception or memory. It is significant for clinical diagnostic purposes, and the disturbance impairs an individual’s emotional well-being, judgment or behaviour. It can include anxiety disorders, psychotic disorders, depression and some substance-induced mental disorders.

What is a ‘cognitive impairment’?

A cognitive impairment is an ongoing impairment in adaptive functioning, and can relate to comprehension, reason, judgement, learning or memory. It results from damage to the brain, dysfunction, or developmental delay. It may arise from intellectual disabilities, dementia, acquired brain injuries or brain damage.

What does the court look at?

The Magistrate will consider s15 under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. This includes, but is not limited to, the nature of the mental health or cognitive impairment, the seriousness of the offence, the sentencing options available, the individual’s criminal history, previous diversions, and any other relevant factors.

If the application is successful, the Magistrate may order that the charges be dismissed and the individual be discharged:

• Into the care of a responsible person, either conditionally or unconditionally;
• Conditionally upon attending to a person or at a place for treatment or support, or
• Unconditionally

An s14 order will also come with the condition that you comply with a mental health treatment or support plan, and can last for up to 12 months.

A person must comply with the treatment plan; otherwise, the matter may be referred back before the court to be dealt with by law, resulting in a conviction and further criminal penalties.

Wollongong Criminal Law are highly experienced with s14 mental health applications and is connected with forensic psychiatrists who can assist with reports that support these applications. If you’ve been charged with an offence that you believe has resulted from a mental health or cognitive impairment, it is important that you receive the best legal advice as to whether your matter can be dealt with under the Mental Health Act.

Contact Wollongong Criminal Law today and speak with one of our experienced solicitors, dedicated to helping our clients and ensuring their matters are handled with sensitivity and compassion.