Getting a Charge Dismissed on Mental Health Grounds: Section 14 Applications in NSW

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Australian tennis star Nick Kyrgios has avoided a conviction, despite pleading guilty to assaulting his ex-girlfriend, Chiara Passari in 2021.

The charge of common assault was heard before the ACT Magistrates Court, with Kyrgios ultimately receiving a non-conviction outcome in which the charge was dismissed. In contrast, New South Wales alternative of this is referred to as a section 10 dismissal having the same effective outcome.

Magistrate Beth Campbell rejected Kyrgios’ initial attempt to have the charge dismissed on mental health grounds, instead dismissing the charge by way of a non-conviction.

She told the court that she would deal with his case in the same manner she would with any young man charged with “low level assault” and that he had “acted poorly in the heat of the moment,”.

Documents tendered to the court detail that Kyrgios and Passari were standing outside Passari’s Canberra apartment block when the incident occurred.

The pair got into a loud argument, which prompted Kyrgios to order an Uber.

Once the car arrived, Kyrgios got into the front passenger seat, but Passari sought to prevent the door from closing by standing between it and asking him to get out.

Kyrgios told Passari: “leave me the f*** alone, I’m going home and don’t want to be with you.”

He pushed her with sufficient enough force that she fell, landing on her right side which grazed her knee and injured her shoulder.

A number of residents residing in the complex saw Passari lying on the ground and crying.

The pair met up at a Canberra café two days later, in which Kyrgios expressed his remorse to her.

She recorded the conversation without his knowledge.

Passari did not report the incident to ACT police until 10 months after it occurred, when the couple had split.

The pair has attempted to stay together following the incident, but eventually parted ways.

In her victim impact statement, Passari detailed how she was scared to be alone after the assault and lost her sense of trust and safety once held with Kyrgios.

The court also heard evidence from psychologist Sam Borenstein which detailed that Kyrgios had experienced recurrent depressive illness during the period in which the incident occurred.

He also noted that Kyrgios had engaged in reckless behaviours including using alcohol and drugs as a way to cope.

This evidence was relied upon when Kyrgios’ legal representative initially sought to have the matter dealt with under section 334 of the Crimes Act 1900 (ACT), which allows a magistrate to dismiss a charge if they find that the accused was mentally impaired and it is appropriate to do so. This is similar to the NSW version of section 14 applications under mental health impairment grounds to get a charge dismissed without conviction.

The magistrate will consider factors including the nature and seriousness of the mental impairment, the period for which the mental impairment is likely to continue, and the seriousness of the offence.

Magistrate Campbell ultimately rejected this application, finding that Kyrgios was not currently suffering from mental illness and pointed to evidence detailing that he was not currently suffering from depression, despite having experienced in the past.

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Getting a Charge Dismissed on Mental Health Grounds: Section 14 Applications in NSW

Getting a Charge Dismissed on Mental Health Grounds: Section 14 Applications in NSW

In NSW, a similar order exists under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020(NSW).

This order was formerly section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), prior to amendments which commenced on 24 March 2021.

A section 14 order is diversionary pathway for those facing criminal proceedings who suffer from mental health issues.

Section 9 of the Act outlines that a magistrate may make this order at any time during the proceedings, including before a plea is entered.

It enables the charge to be dismissed, and not dealt with under the criminal justice system, but rather by discharging them, which may involve treatment with or without certain conditions.

If a section 14 is granted, you will receive no conviction, penalty, or criminal record as a result.

As per the relevant section, a Magistrate may make an order to dismiss a charge and discharge the defendant unconditionally or do so:

into the care of a responsible person, unconditionally or subject to conditions, or
on the condition that the defendant attend on a specified person or place for assessment, treatment or the provision of support for their mental health or cognitive impairment.

The defence will need to illustrate the following factors to satisfy the criteria for a section 14:

The defendant has, or had at the time of the alleged offending, a ‘mental health impairment’ or ‘cognitive impairment’,
That it is more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law, and
The defendant is not a ‘mentally ill person’ or a ‘mentally disordered person’.

In order to assist this application, an expert report from a psychologist or psychiatrist is generally required to state their opinion and address the necessary considerations.

It will also need to confirm their experience, expertise in the relevant field of practice and the basis for any opinions professed including testing utilised.

If the magistrate is minded to discharge the defendant into the care of a ‘responsible person’, this will generally require a treatment plan to be outlined.

This means a plan which outlines programs or treatments that the defendant may participate in to address their mental or cognitive issues.

Furthermore, this evidently requires a person or agency to be outlined as an available responsible person.

When considering whether it will be more appropriate to deal with the matter under section 14 the magistrate will look at a range of relevant factors including:

the nature of the defendant’s apparent mental health impairment or cognitive impairment,
the nature, seriousness, and circumstances of the alleged offence,
the suitability of the sentencing options available if the defendant is found guilty of the offence,
relevant changes in the circumstances of the defendant since the alleged commission of the offence,
the defendant’s criminal history,
whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan, and
whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public.

They can also consider 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).

Ultimately, if an order under section 14 will produce a favourable outcome for the defendant and the community, it will likely be granted.

A section 14 order, and any resulting conditions, last up to 12 months from the date the order is made by the Magistrate.

image credit: Leonard Zhukovsky

Published on 13/02/2023