Does a Section 32 or special verdict show up on a Nationally Coordinated Criminal History Check?

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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.

Will a Section 32 sentence show up on a Nationally Coordinated Criminal History Check?

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:

• The Court agrees that the Act was committed, but the person (accused with mental illness) cannot be held criminally responsible.
• If the Court grants a section 32, it does not result in a court conviction or a criminal record. Therefore, a section 32 (or a 'special verdict' under the reformed 2020 Act) does not show up on a Nationally Coordinated Criminal History Check.

What is the difference in section 32 between the reformed and original Act?

Under the original Act (1900);

If the Court grants a person a section 32, it meant that;

• The person had a cognitive/mental impairment or disability,
• It affected their actions or their sense of reasoning on general-purpose,
• The Court finds them "not guilty because of mental illness."

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.

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;

• Had a mental health impairment, cognitive impairment, or
• Both of the above at the time of the offence,
• Is guilty of the offence but not criminally responsible.

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;

• The person did not know the impact of the act/offence, or
• It robbed the person of all sense for sound reasoning of knowing moderately or degree of the Act.

Under the reforms, the Court now records a "special verdict" for the offender at any time in the proceedings if the;

• Prosecutor and Defendant agree to it.

Who can get a special verdict based on mental health or cognitive impairment in Australia?

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;

• Summary offence, or
• Indictable offence dealt with summarily in a Magistrate Court.

The factors the Court considers before granting a special verdict

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;

• The seriousness of the offence

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.

• The criminal record of the offender

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 type of mental illness

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 link between the illness and the Act

The impairment must have a link to the offence. The Magistrate will refuse a special verdict application if the mental illness;

• Occurs at a period other than the time of the offence,
• It was not related to the crime,
• It cannot lead to such actions from the offender.

• Past treatments or the possibility of treatments

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.

Process for granting a special verdict based on mental health or cognitive impairment

The Court will also follow some procedures before issuing a special verdict and imposing the necessary conditions. The conditions the Court imposes are;

• Relevant to the offence,
• Rehabilitation to the offender,
• Acknowledgement of the offence by the offender

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;

• The offender was cognitively affected at that point, or
• Suffering from mental illness, or
• Suffering from other mental conditions treatable in a mental health facility.

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;

• Court reports from a psychologist,
• Reports from a psychiatrist or other doctors,
• Special diagnosis from a dedicated “neuro” centre, or
• Other forms of proof the Court deems relevant to the vetting process.

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;

• The matter should continue in routine sentencing, or
• Proceed by diversion to the special verdict.

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;

• Public/general view in punishing the offender, and
• Other opinions of having the person with mental issues diverted from the criminal justice system.

What happens if a person gets a special verdict based on a Mental health Order?

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:

• Abstain from drugs or alcohol and submit for testing

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.

• Mandatory counselling sessions

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.

• Use prescribed medication

If certain drugs numb the effects of the impairments, the Court will make it a condition that you complete it.

• Agree to a court prescribed reviewal of your medication

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.

• Order the offender to remain in the care of a responsible adult

• Reside in a select area or region for the duration of the bond

Breaching conditions of a special verdict

If the Defendant at any point breaches or faults condition of their special verdict, the Court can;

• Review the conditions of their dismissals,
• Issue a warning,
• Revoke their special verdict, or
• Convict them of the original offence.

If the Court convicts the Defendant of the original offence, it will appear in a Nationally Coordinated Criminal History Check.

How can I obtain a nationally coordinated criminal history check?

You can obtain a nationally coordinated criminal history check certificate online via Australian National Character Check's online Nationally Coordinated Criminal History Check application form. The results are dispatched via email.

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