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S32 Step By Step Guide


If a magistrate makes an order dismissing the charge under section 32(3), the matter may be brought back before a magistrate for breaches of a discharge during the six-month period after making the order. (See section 32(3A)-(3D) of the MHFPA and Mantell v Molyneux (2006) 165 A Crim R 83.)

Some magistrates, under section 32A of the MHFPA , may ask service providers to agree to notify Community Offender Services (formerly Probation and Parole) if your client breaches any of the conditions of the section 32. The form for reporting breaches allows the 'treatment provider' to report the suspected breach and also to make a recommendation as to what action the court should take. The options listed include that your client be brought before the court, that treatment conditions be deleted or that no action be taken. The ability of the treatment provider to recommend actions means that not all reported breaches necessarily result in your client being called to appear before the court. Breach proceedings in section 32 matters are very rare.

The magistrate may decide to compel a person to appear before the court, if it is advised that a person may have failed to comply with a condition of the order. Under section 32(3D) of the MHFPA, the magistrate can then deal with your client as if they had not been previously discharged. In effect, your client is then in the position they were in before the section 32 order was made. Alternatively, the magistrate may direct that no action be taken on the breach, delete certain conditions or simply continue the order after your client has appeared.

It should be noted that committing a further offence does not necessarily mean an order has been breached, unless it was a condition of a previous section 32 order that your client be of good behaviour. In any breach proceedings, you should ask the court for access to the papers so that the orders that are the subject of the breach proceedings can be viewed to check the conditions of the order.

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