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S32 Step By Step Guide

Principles relevant to discretion

The court must be satisfied that it is more appropriate to deal with your client and their charges under the MHFPAMental Health (Forensic Provisions) Act 1990 NSW than in accordance with the law. This is often more difficult to establish than the jurisdictional issue and is entirely at the discretion of the magistrate. It will require supporting evidence, advocacy and persuasive submissions from you.

No exhaustive list of factors

There is no definitive, exhaustive list of relevant considerations for the magistrate. Section 36 allows the magistrate to inform him or herself as they see fit, on the proviso that they do not require the defendant to incriminate themselves.

The powers are of 'an inquisitorial or administrative nature' and must be exercised in accordance with the requirements of procedural fairness. (DPP v El Mawas [2006] NSWCA 154 [74]) What is relevant will depend on the particular circumstances of the case.

In the words of McColl J in El Mawas :

... it involves a discretionary decision in which the magistrate is permitted latitude as to the decision which might be made, a latitude confined only by the subject matter and object of the Act.

at [76], citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission

Balancing public interest

The question of appropriateness is a discretionary judgement which requires balancing:

'… the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from [the relevant disability] … with the object of ensuring that the community is protected from the conduct of such persons'

DPP v El Mawas [2006] NSWCA 154 [71]

Outline of facts

A consideration of an outline of the facts is part of the decision-making process in determining whether or not to apply the section. (See section 32(1)(b) and Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993).

The particular facts giving rise to the offence(s) for which the defendant is before the court is relevant, rather than the type of offence(s). (Confos v DPP [2004] NSWSC 1159 [21], DPP v El Mawas [2006] NSWCA 154 [71])

Magistrates may be falling into appellable error if they refuse to deal with a particular category of offence under section 32.


Due regard must be:

… paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act.

Confos v DPP [2004] NSWSC 1159[17], DPP v El Mawas [2006] NSWCA 154 [71]

… the section 32 diversionary regime is available to serious offenders as long as it is regarded, in the magistrate's opinion, as more appropriate than the alternative. No doubt a magistrate considering that question will consider whether proceedings in accordance with s 32 will produce a better outcome both for the individual and the community.

DPP v El Mawas [2006] NSWCA 154 [79],

Link between the offending conduct and disability

There is no requirement in the legislation that a link between the offending conduct and the person's disability be established. In DPP v El Mawas [2006] NSWCA 154 the magistrate declined to grant a section 32 order for reasons including that the condition of the accused did not play a part in the commission of the offence. However, other cases do not explore such a link. (See, for example, Police v Deng [2008] NSWLC 2.)

Further reading - link between disability and criminal charges

Sentencing outcomes available at law

The magistrate may also have regard to the realistically available sentencing outcomes in the event of conviction. For example, if the magistrate considers that it is very likely that a non-custodial option would be appropriate, this can be taken into account. (Mantell v Molyneux (2006) NSWSC 955)

In Police v Deng [2008] NSWLC 2, the magistrate, when taking into account available sentencing outcomes at law, also considered that the at law option would necessarily include supervision by Parole Service in a situation where the applicant was already adequately supervised by appropriate professionals:

In my view to require the applicant to be subject to the supervision of the Probation Service would add a somewhat superfluous layer into the existing mix of treatments - such treatments having been developed by highly skilled and experienced professionals.

Police v Deng [2008] NSWLC 2


It is a well-established principle in sentencing law that people with mental disorders are not appropriate vehicles for general deterrence.

In Muldrock v The Queen [2011] HCA 39, the High Court said,

A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community...

...The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending.

Muldrock v The Queen (2011) HCA 39 [54-55]

See also: Confos v DPP (2004) NSWSC 1159 [20]

Support plan

There is no requirement in the legislation for a support or treatment plan to be presented as part of a section 32 application. However, often a support plan will be required in order for the application to be successful.

The more serious the offence, the more likely the court is to require a more detailed support plan. In the case of Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993) one of Ms Perry's difficulties was that she imagined she was an authorised bus driver and she took and drove a bus.

It was said in the judgement:

The magistrate was confronted with an offence of some apparent gravity and he needed to know the circumstances surrounding the taking and driving of the bus and the mental condition of the defendant. Practically, he needed to have placed before him a clear and effective treatment plan and one which was likely to ensure that there would not be a repetition of the incident in question or the occurrence of some other unfavourable incident.

Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993)[16]

Weight given to a support plan

Judicial officers are not required to give substantial weight to the support plan when exercising their discretion (DPP v El Mawas [2006] NSWCA 154 [10].)

Support plan or responsible person

… before there can be an exercise of discretion under s32(3)(a) the court is obliged to arrange for there to be some evidence of some sort of plan, or to obtain evidence whereby some appropriate person, be it the Public Guardian, or evidence of some available institution, before an order can be made. This, of course, underlines the fact that in our society we do not make proper provisions for people such as the defendant, …

DPP v Albon [2000] NSWSC 896 [26]

There is limited guidance from the higher courts in section 32 matters. Those that are dealt with on appeal are almost invariably very serious. The matter of Albon cited above involved injury by use of a knife and threats to kill. What constitutes 'proper provisions' will depend on the needs of the person coming before the court. If less is required, then the reasons for putting forward a simple support plan should be clearly put to the magistrate. Not everyone applying for a section 32 will have the complex needs of Mr. Albon.

Duration of final orders

A final order to a section 32(3) order may last for six months, but the case of Mantell v Molyneux (2006) 165 A Crim R 83 notes that interlocutory orders pursuant to section 32(2) can considerably extend that period (at 42).

Final orders

Requirement to name a particular person or place

If a Magistrate decides to dismiss a charge and discharge the defendant in accordance with Section 32 (3) (b), the person or place nominated in the orders must be specified with some precision. Failing to name a particular person or particular place would render enforcement under ss32 (3A) (3D) virtually nugatory. DPP (NSW) v Saunders [2017] NSWSC 760 at [47]

Support plans or documentary evidence given to the Court should provide sufficient detail to identify who or what service is to assess and/or provide treatment or support to a Defendant. If a person or place cannot be identified an application to adjourn the proceedings might be appropriate to allow time for supports or services to be identified. The case of Mantell v Molyneux (2006) notes that interlocutory orders pursuant to section 32 (2) can considerably extend the final timeframe of 6 months.

Alternatively, Section 32 (3) (c) provides that it remains open to the Magistrate to dismiss the charge unconditionally.

General legal principlesInstructions and making the application

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