Please be ready with your application reference number starting with 'P'. For example P1234567
For context, section 32 refers to s. 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
This Act is now reformed as the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). In the 2020 Act, it is now referred to as a “special verdict” and is listed under ss. 27 to 34 of the Act.
Under section 32 of the old Act (Mental Health (Forensic Provisions) Act 1990) and Section 33 of the reformed Act (Mental Health and Cognitive Impairment Forensic Provisions Act 2020) a court can grant you some forms of alternative sentencing instead of a court conviction.
If a person guilty of an offence can prove that they suffered from a form of mental illness or disability, the Court may issue alternative sentencing based on the Act.
If the Court grants your application for section 32, it will grant you a special verdict. The special verdict is defined under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), and it means:
Under the original Act (1900);
If the Court grants a person a section 32, it meant that;
However, this original stipulation of the Act caused a lot of problems, especially to the victim. The keyword is that the Court absolved offenders entirely from any form of wrongdoing due to their mental state. This led to a review of the sensitive part of the stipulation and other reforms in the Act.
Onwards from the 24th of March 2021, the reformed part of the Act replaced the old Mental Health (Forensic Provisions) Act 1990. In the reformed Act - Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the court stance on section 32 improved to be;
If the Court grants a person a dismissal based on mental health or cognitive impairment - ss. 27 to 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), it means;
In a case where the offender proves that they;
This reform shows that the legislation changed from a total absolving of the offender to a more indicative stance. The defence must also prove that the impairment had the effect that;
Under the reforms, the Court now records a "special verdict" for the offender at any time in the proceedings if the;
Although the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 only refers to NSW legislation, other states have similar legislation.
The Magistrate does not issue a verdict based on mental health or cognitive impairment just because the defence claims so; The Magistrate must be certain that mental health or cognitive impairment was the main factor in the offence.
The Court will only grant a mental health or cognitive impairment related verdict where it considers regular sentencing harsh for the circumstances of the offence.
Also, the Court does not grant a special verdict for all kinds of offences. The Magistrate will only grant a special verdict where the crime is a;
The Court will consider all or any of these factors before issuing a special verdict against the offender. The Magistrates may refuse a special verdict based on mental health or cognitive impairment if they are not convinced that the matter requires or qualifies for such.
Some of the factors the Court considers for a special verdict based on mental health or cognitive impairment includes;
Not all offences will draw a special verdict or other alternative sentences from the Magistrate, for that matter. Some aggravating circumstances or complications of the case can disqualify the matter for a special verdict order.
Conviction history tells a lot about a person. If their criminal record shows a pattern or goes back to the offence, the Court may reconsider a special verdict program. The Court will likely grant a special verdict to a person with a clean record/young offender than a notorious or repeat offender.
The presence of a long conviction history will be contradictory with having this “mental illness” being a cause.
The Magistrate may refuse a special verdict if it considers the mental illness "powerless" to influence such a decision. It must be convincing/strong enough to have caused impairment.
It is a fact that some cognitive impairments cannot impact such acts.
The impairment must have a link to the offence. The Magistrate will refuse a special verdict application if the mental illness;
If the mental illness is treatable, the Court may consider issuing a special verdict to help the offender rehabilitate. Medical history of having such illness is also proof that the offender suffered from the illness before the Court.
The Court will also follow some procedures before issuing a special verdict and imposing the necessary conditions. The conditions the Court imposes are;
Getting a special verdict involves the following steps;
Vetting process or the finding of fact
The Court attempts to verify the claims of the offender that they are mentally impaired. Any medical proof, antecedents, witness or others admissible in Court must show that;
Mental impairment may not be a mental illness
A person being mentally impaired at the time of offence does not mean being "mentally ill". In this case, the mental illness involves situations where the person is in urgent need of;
Care, treatment, control or other aids that would protect the person or others.
What the Court needs
For the vetting process, proof of such can be;
The sentencing the Court imposes
The Court will decide on the next step after establishing finding/not of the mental impairment. Here, the Court will determine whether;
This decision is solely on the Magistrate's discretion based on the factors they considered. And the broad scope of the NSW legislation allows the magistrate choices in determining when a special verdict is appropriate.
The Magistrate’s dilemma
In such decisions, the Magistrate is in between satisfying conflicting interests, especially delicate matters.
The two leading causes in the decision are the;
If the Court finds the offender worthy of a special verdict, it will proceed with the matter based on the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
The special verdict by the Court will last for a maximum period of 6 months. When the Court sentences the person on a "special verdict", it can impose the following:
The mental impairment or issues are influenced or inflamed by drugs; the Court will require you to quit them. During the period of your special verdict, the Court will require you to submit yourself for testing.
The Court will also impose counselling sessions, especially where the impairment is psychological. Completion of the counselling session is the only way to validate your special verdict.
If certain drugs numb the effects of the impairments, the Court will make it a condition that you complete it.
Under such conditions, you must submit for a review of the medicines you take. The Court can decide if you should continue with it or issue another.
If the Defendant at any point breaches or faults condition of their special verdict, the Court can;
If the Court convicts the Defendant of the original offence, it will appear in a Police Check.
You can obtain a criminal history check certificate online via Australian National Character Check’s online police check application form. The results are dispatched via email.
Mental Health (Forensic Provisions) Act 1990 (NSW) - https://legislation.nsw.gov.au/view/html/repealed/current/act-1990-010
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-2020-012
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