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S32 Step By Step Guide

Possible submissions

Step 7 Making submissions

What you want to show

You will need to put before the court evidentiary material on the jurisdictional issue, that is that your client has a developmental disability, a mental condition or a mental illness, and on the question of why it is more appropriate that they be dealt with under the section rather than according to law. Your submissions should address both of these issues.

Persuading a magistrate that it is more appropriate to deal with your client under section 32 is often the more difficult step to establish in cases for people with intellectual disability. It will require skillful advocacy on your part.

You should walk into court knowing all your client's material, that is, be familiar with reports, facts, criminal history and circumstances, and be prepared to explain them to the magistrate to convince her or him that the diversionary avenue is preferable, in particular that it is in the public interest, rather than dealing with your client according to law.

Common issues

Jurisdictional issue

Refer to the evidence that proves that your client has intellectual disability (or mental condition or mental illness). Direct the magistrate to any sections or quotes in the report(s) that refer to your client's intellectual disability. Ensure that the magistrate is aware that intellectual disability is a developmental disability.

Further reading - Eligibility

Further reading - General Legal Principals

What if the magistrate says your report is too old?

Point out to the magistrate that intellectual disability is a lifelong disability and does not substantially change. While adaptive functioning skills may vary over time, a person will always be affected by their intellectual disability. An old report should be accepted as evidence of intellectual disability. A current report is preferable if your client's matter is complex.

Further reading - Clients with intellectual disability

What if the only report about the client's intellectual disability is a short, hand-written note from a GP rather than a psychological assessment?

In section 32 matters, the magistrate can inform themselves in any manner they think fit.
Reference - section 36 of the MHFPA (external link)

If your client is an ADHC client, provide the magistrate information about ADHC eligibility criteria.
Reference - More about ADHC

Also consider calling short evidence from a family member or a disability worker about your client and their disability.

If, in the end, the magistrate remains unsatisfied as to the existence of a developmental disability, then consider seeking an adjournment of the matter to organise a new report. If you require a Legal Aid grant to do so, the circumstances should be fully explained to Legal Aid NSW in your application.
Reference - Getting evidence, services, support plan

Disability and the alleged incident

It is unclear whether it is necessary that there be a link between the person's disability and the alleged offence for a section 32 application to be successful. However, if there is a possible link it is helpful to raise it.

Think about the nature of your client's intellectual disability and how it may be linked to the type of behaviour alleged by the prosecution. A comprehensive psychological assessment will outline deficits in adaptive functioning and help both you and the magistrate understand the links. Disability workers and family members are also useful sources of information on how your client's disability affects their interactions with the world. Draw the magistrate's attention to any relevant sections of relevant reports.

It can be difficult for a lawyer to identify possible links.

Further reading - Link between effects of disability and charges


Consider the circumstances of the offence in relation to specific aspects of your client's disability. Consider the following questions.

  • Was there a degree of naivety in your client's behaviour because of their intellectual disability?
  • Was your client led by others?
  • Was your client's behaviour a spontaneous reaction rather than a planned activity?


Consider aspects of your client's background that you can highlight to the magistrate that may assist them to exercise their discretion in favour of a section 32 application. Ask yourself the following questions.

  • What is your client's family history?
    For example, if they are a ward of the state who grew up in an institutional setting they may not have had the benefit of developing appropriate interpersonal relationships
  • Was your client bullied at school and as a consequence craves acceptance by a peer group and is easily led?
  • Is your client socially isolated and interacts with members of the public in a manner that may be misunderstood?

Criminal history

  • Significant criminal history but no previous section 32 orders

    Some clients may not have previously been identified as having a disability and may not have been linked in with appropriate support services in the past. A consequence of this may be that they have not had relevant supports to help them stay out of trouble. If your client has now been linked in and will consequently receive appropriate assistance, then you have an opportunity to make a powerful submission. It may also be that your client's previous legal representatives did not consider a section 32 application or that your client did not have the application adequately explained to them.

  • Numerous section 32 orders

    Consider making submissions about how intellectual disability may impact upon a client's ability to learn. Learning and behavioural change is a slower process for people with intellectual disability requiring persistence over a lengthy period.

    People with intellectual disability who have developed challenging behaviour may need a great deal of assistance, often specialist assistance, to analyse the cause of the behaviour and assist them to change that behaviour. The behaviour patterns may be fundamental to their way of coping and are unlikely to be resolved quickly. However, over time and with planning, adequate support, persistence and patience, the problem behaviour will usually reduce in frequency and intensity and eventually may become a rare occurrence or cease altogether. Progress may seem slow but this is the norm and it is important not to give up when further incidents occur.
    Further incidents do not mean that the section 32 order has been a failure or that section 32 should be ruled out in the future.

    If there has been a longer gap between charges than previously, point this out to the magistrate and emphasise that is an indicator of progress. The service providers or psychologist consulted may be willing to give evidence to this effect.

    If the previous support plan was never fully implemented then tell the magistrate. It may be that previously planned services, support or behaviour management strategies have not been fully implemented before further alleged offending behaviour occurs. This is usually the result of slowness or poor follow-up by service providers rather than the fault of your client. It is important that the court is advised if this is the case.

    Point out any new aspects of the support plan compared with past plans that may lead to a reduction in offending behaviour. It may be that the previous support plan was inadequate. For example, an increase in support hours, a new activity or changes in medication may all be of relevance to the court.

    Has there been some trigger for the new problems, for example a change in routine, a change in medication, some traumatic event? Has this now resolved? Is the problem being addressed?

    Look at the criminal history to examine the type of offences on your client's record and try to distinguish from previous offences.

  • No previous involvement with criminal justice system

    If your client has no previous involvement with the criminal justice system you should consider if something significant has changed or taken place for your client in the lead up to the alleged offence? For example, your client's parents could have died or moved.

Sentencing according to law would be inappropriate or ineffective

Where gaol is an option, draw to the magistrate's attention that gaol is unlikely to reduce your client's risk of re-offending and note that the interests and protection of the community may be better served by providing appropriate supports in the community.

People with intellectual disability are often highly vulnerable in custody and incarceration will most likely have a detrimental effect on the individual. Stress the deleterious effect gaol would have on your client - their vulnerability to exploitation, the lack of resources for people with intellectual disability in jail and the likely negative outcomes of the experience for your client. Furthermore, people with intellectual disability are inappropriate vehicles for general deterrence. As such, a custodial sentence is less likely to serve the community's interests.

In cases where a non-custodial option is the likely alternative to section 32, let the court know if your client is unable to pay a fine by outlining their income and expenses, the difficulties your client would face trying to complete a community service order because of particular features of their disability and how the support of service providers is likely to be more effective than supervision by Probation and Parole in the case of a bond.

Instructions and making the applicationThe support plan and proposed order

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