Home   >  Section 32 & 33 - Avoiding a conviction

Avoid a criminal conviction on the grounds of Mental Condition (s.32 Application)

If you have committed a criminal offence and you were suffering from a mental condition (such as Depression) at the time you committed the offence you can avoid a criminal conviction if you make a successful s.32 application.

The Court will dismiss a criminal charge against you and will not convict you of the offence if you can show that at the time you committed the offence you were suffering from a mental condition (such as depression) and that it is more appropriate that you receive treatment for that condition than be punished for the offence.

If you are suffering from mental conditions such as Bi-Polar disorder, depression, ADHD, ADD, borderline personality disorder, anxiety, and substance abuse you are eligible to apply for the charge to be dismissed under s.32.s.32 also applies if you were suffering from or a developmental disability or an acquired brain injury.

For your s.32 application to succeed, the Court needs to be persuaded of two things: First, that you were suffering from the relevant mental condition at the time you committed the offence and second that it is more appropriate that the Court deal with you under the Mental Health (Forensic Provisions) Act 1990.

If your s.32 application is successful you will not receive a criminal conviction,the charge(s) will be dismissed, and nothing will be recorded on your criminal record (though section 32 orders may be taken into account by the magistrate if you re-offend). All you will be required to do is to observe a mental health treatment plan for 6 months. Typically the treatment plan will require you to take medication as prescribed and follow the advice of your treating psychologist or psychiatrist.

Section 32 applications are always supported by a psychiatric assessment or psychological report containing a treatment plan. North Shore Criminal Law has relationships with specialist Psychologists and Psychiatrists who are experienced in preparing reports and assessments in support of Section 32 applications. If you already have a treating psychologist or psychiatrist we can contact them to request that they provide a report in support of your s.32 Application.

Avoid a criminal conviction on the grounds of Mental Illness (s.33. Application)

If you can be classified as ‘mentally ill’ as defined by the Mental Health Act 1990 then you will not be eligible to make a Section 32 application. In cases where your mental health problem is considered to be serious enough for there to be a high probability that you may harm yourself or others then you would need to make a Section 33 application. If the Section 33 application is successful then the Magistrate will order for you to attend a psychiatric unit or hospital for further assessment. After that assessment you either become an involuntary patient or if two doctors decide that you are not mentally ill according to the Mental Health Act 2007 (NSW) you will be sent back to the Local Court and to re-appear before a magistrate.

If you have been charged with an offence and you have (or had at the time of the offence) a mental health problem or serious mental illness then it is essential to get advice from a lawyer who can prepare either a Section 32 or Section 33 application on your behalf.

North Shore Criminal Law has years of experience helping people whose mental health has been a contributing factor in an alleged criminal matter and have made very many successful applications to the Court. The Courts recognise that it is often appropriate for the mentally disadvantaged of our community to receive treatment instead of punishment.

North Shore Criminal Law is available on our Emergency Service 24/7 on 0400 44 6424 or (02) 9955 2298 during office hours. The first telephone consultation you have with us is free. During this call we will advise you of your next steps if it is appropriate for you to make a section 32 or section 33 application.