An application under Section 32 requires a Magistrate to make three decisions:
- Whether the defendant is eligible to be dealt with under the section.
The Court requires medical evidence from a forensic psychologist or psychiatrist to establish this jurisdictional question which involves a finding of fact.
An individual must suffer from a diagnosable mental illness but not be a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW) for which treatment is available.
It is crucial that the report contains a comprehensive mental health treatment plan which will form the basis for the Order. The treatment plan must name the medical professional providing the treatment and where it is proposed to occur.
- Whether it is more appropriate to deal with the defendant in accordance with the provisions of the part than otherwise in accordance with law: s32(1)(b) Mental Health (Forensic Provisions) Act.
When considering this question, the Magistrate should have regard to a range of factors, including the following:
- The seriousness of the offence which is reflected in the maximum penalties for the offence;
- The particular facts of the offence for which a defendant is charged rather than the type of offence;
- The degree to which a defendant is disabled from being able to control the offending conduct; and
- The need for specific and general deterrence;
The fact that an offence is properly characterised as serious is not a reason for an order under section 32 not to be made. In DPP v El Mawas, McColl J said that:  … 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.
- If it is more appropriate to deal with the defendant according to Section 32, which of the actions set out in subsections (2) or (3) should be taken?