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 dangerous driving?

A person is guilty of an offence under section 52A of the Crimes Act 1900 (NSW) where it is found they have been driving dangerously and have caused the death or very serious injury of another person or multiple people.

There are four separate offences under this section:

A charge of aggravated dangerous driving requires extra elements to be proved alongside the base offence.

These offences are some of the most serious driving offences that are prosecuted in New South Wales and can carry multi- year jail sentences. They also attach significant periods of licence disqualification.

Elements of the offence:

There are four elements that must be proved by the prosecution for a person to be found guilty of this offence:

  1. A person drove a vehicle, and
  2. The vehicle was involved in an impact,
  3. That caused the death or grievous bodily harm of another person, and
  4. The person was driving dangerously at the time.
  1. Driving a vehicle:

“Drive” includes being in control of the steering, movement or propulsion of the vehicle. There is no requirement for a driver to being in control of all three at once (although, most of the time they will be). In one example, a person was found guilty of dangerous driving where they only had control over the break and accelerator (and someone else was steering).

Additionally, the driving must be voluntary – which can sometimes be an issue when a person falls asleep or suffers a medical episode whilst behind the wheel. In such cases, the court may find that a person was not really “driving” the vehicle.

A person can also commit a dangerous driving offence in various kinds of vehicles. There is no requirement for a motor, which means that any vehicle that is propelled by electricity, oil, animals or human power can qualify. Things like bicycles, carriages and electric scooters/skateboards are all capable of being driven dangerously for this offence.

Section 52A of the Crimes Act sets out all of the ways a vehicle can be involved in an impact to constitute the offence. Impacts may just involve the vehicle the person is driving (for example, the vehicle overturning) or it may involve collision with other inanimate objects, vehicles or people.

The impact that causes death or serious injury can also be the indirect fault of a dangerous driver. For example, a driver may hit a vehicle, forcing that other vehicle into an oncoming lane which then causes a fatal impact with other traffic.

There are generally no evidential issues with proving death, although there might be a question of causation where the person does not perish immediately or soon after the accident. The Court has also stated that dangerous drivers have caused the the later deaths of babies who were seriously injured in the womb or who have died due to premature birth after the mother was seriously injured whilst carrying them.

Proving grievous bodily harm can have more challenges as there are a wide range of injuries that can fall under this category. To qualify for grievous bodily harm, there must be “really serious bodily injury” but it does not necessarily have to permanent or long-lasting. Multiple broken bones or serious fractures, nerve damage, disfigurement and severe head injuries are examples that would likely fall within this definition.

While the above three elements are usually fairly simple to determine one way or the other, this final part often requires the most attention during a court matter. Section 52A of the Crimes Act specifies the different ways a person can be found to be driving dangerously:

Under the influence of alcohol or another drug:

If a person is found to have a blood alcohol content of 0.15 or above after a serious road accident, they are automatically presumed to be “under the influence” of alcohol and therefore driving dangerously. However, this does not mean that this level of intoxication is required to be considered driving dangerously for this offence. “Under the influence” covers a wider range of circumstances.

“Under the influence” is not specifically defined in the legislation, but it is clear that the term is not related to any specific numerical level or concentration of alcohol or another drug in a person’s body. It relates to a subjective observation by police or other witnesses that a person’s mental and physical state are negatively influenced by alcohol or another drug. This commonly involves evidence of a person’s speech, behaviour, appearance, smell or manner of driving.

This is considered “dangerous” because a person that is so noticeably influenced by alcohol and/or drugs does not have the required concentration and physical control to drive and has therefore seriously disregarded other people’s safety by choosing to get behind the wheel.

At a speed dangerous:

A person can also be driving dangerously if their speed is considered excessive in all of the circumstances.

This does not necessarily relate to exceeding the signposted speed limit. In some cases it has been found that while a person has exceeded the legal speed limit they were still not driving at a speed dangerous enough to warrant being guilty of dangerous driving. In other cases, people driving under the legal speed limit have been found to be driving at a dangerous speed considering the conditions they were actually driving in. In one example, there was a large group of cyclists on the road and a driver who was unable to safely pass did not slow down enough to avoid hitting them. They were found to be driving at a speed dangerous.

What is important is the actual circumstances of the situation. What is considered a “safe” speed will change depending on the condition of the road, visibility, how built-up traffic is, how many pedestrians are around, what kind of area a person is driving in (for example, a suburban street versus a highway) and the mental and physical condition of the driver themselves.

In a manner dangerous:

This is the most general of the categories of dangerous driving and encompasses a wide range of driver behaviour. Determining whether someone was driving “in a manner dangerous” is an objective test based on the expected standard of care drivers are meant to employ and the potential danger other people have been put in by their actions while driving.

Driving in a manner dangerous can be due to negligence on the part of a driver or due to deliberate recklessness or disregard for the rules of the road and the safety of others. Depending on the particular circumstances of a situation, even “momentary inattention” can amount to dangerous driving.

The “manner” of driving can relate to anything connected with the “management and control” of a vehicle. So, it can include more than just accelerating, breaking and steering – the Courts have held that things like using indicators, starting the car and using the horn can also be included in a person’s manner of driving.

A common issue that arises in dangerous driving cases is the role of fatigue in serious road incidents. It is possible for a driver who has fallen asleep at the wheel to be charged with dangerous driving, even though at the time they caused impact they are not awake and in control of the vehicle. The Court has stated that there are times when a driver is so fatigued that their decision to start driving or keep driving is dangerous in and of itself. This will be determined on an individual basis, and requires the Court to consider the particular circumstances of each driver and the specific conditions they were driving in.

Aggravated offences:

If a person is charged with an “aggravated” form of a dangerous driving offence, the prosecution must also make out at least one of the following elements:

If found guilty of an aggravated dangerous driving offence, a person will automatically be subject to a higher maximum term of imprisonment.

Defences available:

Causation:

It can be a defence to a dangerous driving charge to show that there is no connection between a person’s dangerous driving and the death or serious injury of another person or people.

A defendant has the burden of proof to show that the harm that occurred was not “in any way attributable” to the manner of driving, speed and/or state of intoxication. Essentially, they must show the death or injury would have occurred regardless of the way they were driving.

It is not enough to argue that the person or people who were harmed contributed in some way to the incident. The dangerous driving must have absolutely no material contribution to the impact.

In one example, the Court found no connection between the dangerous driving and the death of another person where a driver who was significantly intoxicated directly hit a dirt bike rider at night. The driver was turning into their driveway on a poorly lit road and the dirt bike rider was approaching up a blind hill without their headlights on. The court concluded that even a person who was completely sober would not have been able to react quickly enough to avoid the impact. So the driver’s dangerous state of intoxication did not cause the death.

Mechanical Defect:

A mechanical defect in a vehicle could possibly provide a defence to dangerous driving where it causes a sudden, unexpected loss of control that the driver cannot reasonably rectify. However, if a person knew about this mechanical defect, or should have known about the defect, they may still be found guilty of dangerous driving. This is because choosing to drive when something is seriously wrong with your vehicle represents a great failure to consider the safety of other drivers and pedestrians.

Once the possibility of a mechanical defect in the vehicle is raised on the facts, the prosecution has the burden to either prove there was no actual defect or that the defect does not excuse the dangerous driving.

Honest and Reasonable Mistake:

In certain dangerous driving cases, a defendant can argue they were honestly and reasonably mistaken about a certain circumstance. If that circumstance was true, their driving could not be considered dangerous.

This is most relevant in two certain situations: (1) when the dangerous driving involves being under the influence of alcohol or another drug; and (2) when the dangerous driving involves fatigue.

In the case of alcohol or drug intoxication – it may be possible to argue that someone was involuntarily intoxicated. This might occur through drink spiking or through consumption of medication that a person was unaware had intoxicating effects. In these circumstances, a person might have an honest and reasonable belief they were sober enough to drive. However, this does not mean that underestimation of the effect of alcohol or drugs on a person, or the excuse “I thought I was okay to drive” is enough to defend a charge. The Court has little patience for people who consume a significant amount of alcohol and decide to take the chance and drive anyway.

In incidents involving extreme fatigue or falling asleep behind the wheel, there are instances where a person can try and argue they honestly and reasonably believed that it was safe for them to drive. This is always a question for the individual person and case – often the lighting, length of the drive, time of day, amount of sleep and previous activities of the driver (for example, a physically exhausting week of work) are all relevant to whether a person should have known they were too fatigued to drive.

The Guideline Judgment:

Dangerous driving is the subject of an NSW Supreme Court guideline judgment. This means there is a detailed set of instructions that magistrates must follow when sentencing a person for a dangerous driving offence.

The Guideline sets out what an “ordinary case” of dangerous driving is and the usual penalties that should follow. The “ordinary case” includes:

The Guideline Judgment states that in most cases, a full-time prison sentence is “usually appropriate”. However, it does allow that in cases where a person’s moral blameworthiness is quite low (for example, in cases of brief inattention or misjudgement) a penalty less than full time custody is allowable.

The Guideline Judgment also sets out a list of factors that can possibly “aggravate” an offence and increase the moral culpability of the offender:

  1. The extent and nature of the injuries caused
  2. The number of people that were put at risk by the driving
  3. The degree of speed
  4. The level of intoxication
  5. Any erratic driving
  6. Any competitive driving (or racing)
  7. The length of the journey where others were in danger
  8. Ignoring warnings
  9. Driving to escape police pursuit
  10. Being significantly sleep deprived
  11. Failing to stop after the accident

If the court finds any of these factors present in a person’s offending behaviour, it will increase the objective seriousness of the dangerous driving and warrant a harsher penalty.

Penalties:

Section 52A of the Crimes Act sets out differing penalties based on whether the offence is aggravated and whether death or grievous bodily harm results. Dangerous driving that occasions death is known as a “strictly indictable offence” which means it will always be dealt with in the District Court.

Dangerous Driving Occasioning Grievous Bodily Harm is known as a “Table 1 Offence” which means it will be dealt with in the Local Court unless the prosecution or the defendant chooses to take it up to the District Court. This choice is usually made where the facts of the case are quite serious or where the matter is complex enough to be better suited to the trial procedure of the District Court. If the matter is left in the Local Court, the maximum term of imprisonment is much lower.

The Guideline Judgment sets out that in the usual case, where a person’s moral culpability is fairly high:

If a person is charged with an aggravated form of this offence or the sentencing judge finds any of the aggravating factors mentioned in the Guideline Judgment – the term of imprisonment will likely be greater than these starting points.

The maximum penalties for each offence are:

OffenceFineImprisonment
Dangerous Driving Occasioning Death  N/AMax. 10 years
Agg. Dangerous Driving Occasioning DeathN/AMax. 14 years
Dangerous Driving Occasioning Grievous Bodily HarmIn the Local Court: Max. $11 000In the District Court: Max. 7 years In the Local Court: Max. 2 years
Dangerous Driving Occasioning Grievous Bodily HarmIn the Local Court: Max. $11 000In the District Court: Max. 11 years In the Local Court: Max. 2 years

Dangerous Driving is also considered a “major offence” in the Road Transport Act and is therefore subject to an automatic licence disqualification. The length of this disqualification will vary depending on whether a person has any other road-traffic related “major offences” on their record. This could be other charges of dangerous driving or things like drink or drug driving charges and negligent driving.

The automatic term of licence disqualification can be varied by the Court, but there is a set minimum amount of time a person found guilty of dangerous driving must be disqualified from holding a licence.

 First Major OffenceSecond/Subsequent Major Offence
Automatic licence disqualification3 years5 years
Minimum licence disqualification12 months2 years
Maximum licence disqualificationNo maximumNo maximum

Additionally, if someone has been found guilty of dangerous driving due to being under the influence of alcohol, the court may also choose to impose an interlock order. This means that after a driver has served their period of licence disqualification, they will have to be subject to at least another 3 years under an interlock licence.