What is a section 14 application?

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘the Act’) grants the Court with a broad discretion to divert a person charged with a criminal offence away from the criminal justice system and the usual forms of punishment into the care of a responsible person for treatment of their mental health or cognitive impairment.

The purpose of such an order is to ensure that offenders are directed towards treatment facilities to manage their conditions and reduce their likelihood of reoffending.

An application pursuant to s 14 of the Act only apply to summary offences, or to indictable offences tried summarily in the Local Court. You cannot make a s 14 application for matters tried in the District Court.

A Two limb test – Are you eligible and is it more appropriate?

Before a Magistrate makes an order under s 14 of the Act, the Magistrate must be satisfied that:

  1. The defendant has (or had at the time of the alleged offence) a mental health impairment or a cognitive impairment, and
  2. Whether, on an outline of the facts and any other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with s 14, than otherwise under criminal law.

1. What is a mental health impairment?

A person has a mental health impairment if:

A mental health impairment may arise from any of the following disorders, but it can also arise for other reasons:

You are not considered to have a mental health impairment for the purposes of the Act if your impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.

2. What is a cognitive impairment?

A person has a cognitive impairment if:

A cognitive impairment may arise from:

3. How do I establish that I suffer from a mental health impairment or a cognitive impairment?

The Magistrate will rely upon a report from a forensic psychologist or a forensic psychiatrist, or your treating clinical psychologist or psychiatrist, to confirm your diagnosis.

This is frequently called a mental health treatment plan or support plan.

It is a comprehensive report detailing the nature and history of your condition, any treatment you have previously received in respect of your condition, and a treatment plan for the future.

4. Is it more appropriate to divert?

The second limb requires the Magistrate to make a discretionary judgment as to the appropriateness of diverting the defendant, rather than dealing with the matter under the criminal law.

When assessing the appropriateness of diverting the defendant into the care of a mental health practitioner, rather than dealing with the manner under the criminal law, the Magistrate is required to undertake a balancing exercise to ensure that the interests of the defendant to be provided with adequate treatment and support for their mental health condition do not outweigh the general need to administer justice for the defendant’s criminal conduct.

Section 15 of the Act provides the Magistrate with a non-exhaustive list of matters to take into consideration when assessing the appropriateness of diversion. These include:

  1. The nature of the defendant’s apparent mental health impairment or cognitive impairment,
  2. The nature, seriousness, and circumstances of the alleged offence,
  3. The suitability of the sentencing options available if the defendant is found guilty of the offence,
  4. Relevant changes in the circumstances of the defendant since the alleged commission of the offence,
  5. The defendant’s criminal history,
  6. Whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW),
  7. Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
  8. Whether the defendant is likely to endanger the safety of defendant, a victim of the defendant, or any other member of the public, and
  9. Other relevant factors.

The Magistrate is not restricted by these factors and may consider other relevant factors pursuant to s 15(i). This may include, for example, an assessment of the degree to which a defendant was disabled from being able to control their conduct due to their mental health or cognitive condition.

What orders can the Magistrate make?

If the first two limbs are satisfied, a Magistrate may make any of the following orders:

The effect of a successful application under s 14 of Act is that a person charged with a criminal offence will be discharged, the charge dismissed, and no conviction recorded against them.

Who can make a section 14 application?

Any person who has been charged with a criminal offence which is being dealt with in the Local Court, and who has a mental health impairment or a cognitive impairment, may make an application under section 14 of the Act.

This application may be made at any stage in the proceedings, regardless of whether the person is pleading guilty or not guilty.

How long will the order be in place?

If you are successful with a s 14 order, an order will be imposed for a period of 12 months.

What is a Mental Health Treatment Plan or Support Plan?

A mental health treatment plan or support plan is a treatment proposal that accompanies a section 14 application. The plan must be from a mental health professional such as a psychologist or psychiatrist.

It can include requirements such as:

Who can be a responsible person?

A responsible person must be a medical professional such as a psychologist, psychiatrist, counsellor or, in some cases, a general practitioner.

Can I adjourn my case to undertake treatment?

Yes. A Magistrate can adjourn your case to enable:

What are the benefits of a section 14 application?

Of course, the most advantageous benefit is that a person avoids a criminal conviction in favour of a court mandated treatment plan.

An application can be made at any time in the proceedings. It can be made early in the proceedings and, if successful, result in the case being dismissed without needing to wait a length period of time for a hearing.

Even if the application is unsuccessful, it will not affect the case as a whole. Whether a person maintains a plea of not guilty or enters a plea of guilty, the court still has the power to make the order.

What happens if I breach a section 14 order?

If you fail to adhere to the conditions ordered against you, or if a Magistrate suspects that you have failed to comply with an order under s 14 within the twelve-month period, a Magistrate may:

In practice, this means that you may be resentenced for the offence under the criminal legislation. You may later be convicted of the offence or be the subject of more serious penalties, such as full-time imprisonment.

What is the offence?

It is an offence under s 91H of the Crimes Act 1900 (NSW) to be found in possession of child abuse material.

This offence is a Table 1 offence which means that it is an offence which may be elected upon to be dealt with in the District Court of New South Wales. If there is no election made, it will be dealt with in the Local Court of New South Wales.

What must be proven?

To establish the offence, the prosecution must provide beyond reasonable doubt that:

For a person to be found guilty of this offence, it must be established that the material itself is child abuse material as defined in s 91FB of the Crimes Act 1900 (NSW). Whether material is child abuse material as opposed to material which simply depicts a child turns on whether the video or images, as they case may be, objectively depicts the child in an offensive way or in a sexual way.

1. What is child abuse material?

Section 91FB of the Crimes Act 1900 (NSW) defines child abuse material as material that depicts or describes, in a way that reasonable persons would describe as being, in all the circumstances, offensive. It includes material depicting:

  1. A person who is, appears to be or is implied to be, a child as a victim of torture, cruelty, or physical abuse, or
  2. A person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of another person), or
  3. A person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
  4. The private parts of a person who is, appears to be or is implied to be, a child.

The ‘private parts’ of a person that appears to be or is implied to be a child includes:

For the purposes of this offence, a child is defined to be a person under the age of 16.

The test of determining whether an image or a document depicting a child in a manner offensive to a reasonable person is an objective one. It requires consideration of the following matters:

  1. The standards of morality, decency, and propriety generally accepted by reasonable adults, and
  2. The literary, artistic, or educational merit (if any) of the material, and
  3. The journalistic merit (if any) of the material, being the merit of the material as a record or report of the matter of public interest, and
  4. The general character of the material (including whether it is of a medical, legal, or scientific character).

This definition is very broad and can encompass a wide range of material including photographs, drawings, cartoons, videos, stories, or other written work.

2. What is possession?

To be in possession means to have physical custody or control of or access to the data amounting to child abuse material.

It includes the possession of material in the form of data stored on a computer or data storage device.

3. What is dissemination?

To disseminate material is to:

4. What is production?

To produce child abuse material is to engage in any of the following conduct:

What are the maximum penalties?

The maximum penalty for an offence of this nature is 10 years imprisonment.

There are different types of penalties which are available to a judicial officer. These are listed below, from least serious to the most serious:

Judicial officers regularly reinforce that the maximum penalties the legislature has set for offending of this nature are reflective of the community abhorrence of and concern related to the exploitation of children who are amongst the most vulnerable and susceptible to sexual abuse. This has led judicial officers to often imposing condign punishments suitable to the objective criminality of the offence.

In recent years, there have been several judgments handed down which set out a list of factors to be taken into account when assessing the objective criminality of an offence of this nature. These factors include:

  1. Whether actual children were used in the creation of the material.
  2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
  3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
  4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
  5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination.
  6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
  7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided, or received for the acquisition or dissemination/transmission.
  8. The proximity of the offender’s activities to those responsible for bringing the material into existence.
  9. The degree of planning, organisation, sophistication, and/or deception employed by the offender in acquiring, storing, disseminating, or transmitting the material.
  10. The age of any person with whom the offender was in communication with, in connection with the acquisition or dissemination of the material relative to the age of the offender.
  11. Whether the offender acted alone or in a collaborative network of like-minded persons.
  12. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
  13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
  14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) bearing upon the objective seriousness of the offence.

Minehan v R [2010] NSWCCA 140. Later endorsed and expanded upon in R v Hutchinson [2018] NSWCCA 152 at [45].

It is important to remember that this is a non-exhaustive list of matters which may be taken into account when assessing the objective criminality of an accused person’s behaviour. It does not prohibit judicial officers from taking into consideration often features relevant to the assessment of the objective seriousness of the offence.

1. Will I go to gaol?

The Court is able to order non-custodial alternatives to imprisonment which would allow you to remain in the community under a certain level of supervision. It may include additional conditions that you undertake unpaid work in the community, and that you partake in rehabilitation or treatment, as is reasonably recommended.

An offence of this nature is referred to as a ‘prescribed sexual offence’. This means that a Court is prohibited from sentencing you to a suspended sentence of full-time imprisonment, like an Intensive Corrections Order.

If the Court deems that your offending is of such a serious nature a sentence of full-time imprisonment may be imposed against you.

What are the possible defences?

The statutory defences available for this offence are found in s 91HA of the Crimes Act 1900 (NSW). These include:

Child Protection Register

If a finding of guilt is made against you for an offence of this nature, you will be placed onto the Child Protection Register. The Child Protection Register operates in conjunction with each penalty imposed by the Court. Its purpose is to control and to monitor the conduct of a person found to pose a danger to children.

The Child Protection (Offenders Registration) Act 2000 (NSW) creates two classes of offences for which persons can be placed onto the Register:

Class 1Offences include murder (where the person is a child) or sexual intercourse with a child.
Class 2Offences include manslaughter (other than as a result of a motor vehicle accident) where the victim is a child, sexual touching or a sexual act against or in respect of a child, possession of child pornography, filming a child for indecent purposes, or kidnapping, abduction of a child, procuring or grooming a person under 16 for unlawful sexual activity, sexual offences against children that happened overseas, or promoting child prostitution or benefiting from it.

1. Reporting periods

The period of time for which you will be required to report will depend upon the type and amount of offence(s) in which you were found guilty. The applicable periods are as follows:

Class 1 offence15 years
Class 2 offence8 years
Multiple offences15 years
Sexual re-offendingLife.

2. What are the reporting obligations?

After you are served with a notice that you are a registrable person, you will be required to provide an initial report of the following information:

You will be required to report annually with this list of information. If there are any changes to the information provided, you will be required to notify the Police within 7 days of making such a change.

It is an offence under s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW) to fail to comply with your reporting obligations, without a reasonable excuse. This carries a maximum penalty of five years imprisonment and/or a fine of $55,000.00.

It is an offence under s 18 of the Child Protection (Offenders Registration) Act 2000 (NSW) to knowingly provide false or misleading information. This carries a maximum penalty of five years imprisonment and/or a fine of $55,000.00.