7. Consequences of findings under the CMIA

Introduction

  1. 7.1 In a usual criminal trial, if a jury finds a person not guilty of an offence, the court must release them. If a jury finds a person guilty of an offence or the person pleads guilty, the court must decide whether to record a conviction against the person and impose an appropriate sentence in response to the offending. The Sentencing Act 1991 (Vic) governs sentencing in Victoria.
  2. 7.2 In addition to a conviction and/or a sentencing order, other orders can follow a finding of guilt. These are ‘ancillary’ orders because a court makes them in addition to the primary order. In some cases, the court makes these orders, for example, an order for compensation to a victim. In other cases, the orders occur automatically due to a requirement in legislation, for example licence suspension or disqualification.
  3. 7.3 The consequences that follow findings in the unfitness to stand trial and mental impairment processes differ from the consequences that follow a trial of an accused person in the usual criminal process.
  4. 7.4 The existence of different orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) reflects the different principles that underlie the CMIA. A person who is unfit to stand trial is not able to exercise their full right to a criminal trial. A jury must determine their responsibility for an offence at an alternative special hearing. If a jury at the special hearing finds that the person committed the offence, it would be unfair for a court to sentence them as if they had been guilty in a usual criminal trial. The principle of legitimate punishment also prevents a court from sentencing a person who is not guilty of an offence because of mental impairment.
  5. 7.5 The terms of reference ask the Commission to consider whether changes should be made to the provisions governing supervision and review, including the frequency, form and conduct of reviews and the arrangements for consideration and representation of the various interests involved, including the interests of the community. In its preliminary research, the Commission identified a number of potential issues regarding the making of orders and other consequences that can follow findings made under the CMIA. This chapter examines these issues, discusses the consequences of findings under the CMIA and the processes that operate regarding these consequences. Chapter 8 discusses the legislative framework governing the process that follows the making of supervision orders, including processes for review, leave and management of people subject to supervision orders. Finally, Chapter 9 discusses a number of broad, systemic issues that affect the CMIA supervision regime as a whole.
  6. 7.6 First, this chapter discusses the orders that a court can make in respect of a person after a finding under the CMIA. The Commission raises a number of issues regarding the operation of the processes for making such orders and the nature of the orders available.
  7. 7.7 Secondly, the chapter discusses ancillary orders that follow a finding of guilt, conviction or sentence in the usual criminal process. It identifies and describes some of the ancillary orders under different legislation in Victoria. This chapter asks for input on whether such consquences should apply to matters under the CMIA.

The law prior to the CMIA

  1. 7.8 Under the Governor’s pleasure regime, people found either unfit to plead or not guilty on the ground of insanity were detained in custody indefinitely until the Governor decided they could be released.
  2. 7.9 A court was required to order that the person be kept in strict custody until the ‘Governor’s pleasure’ was known in ‘such a place and in such a manner as to the court seems fit’. The Governor could order that the person be kept in ‘safe custody’ in the place specified by the court or direct that some other place could be designated.1
  3. 7.10 The Governor could, at any time, order that the person subject to a Governor’s pleasure order be released. The Governor could impose any conditions on the release, including that a community corrections officer supervise the person.2 In practice, before the Governor released a person the Adult Parole Board had to review the person and make a recommendation to the Attorney-General. The Attorney-General, Cabinet and the Premier had to each agree to the recommendation prior to the Governor authorising the release of the person.3
  4. 7.11 Under the Governor’s pleasure regime, an alternative to indefinite detention was also available. Section 420(2) of the Crimes Act 1958 (Vic) allowed the court to ‘make any orders it sees fit to enable that the person receive services under the Mental Health Act 1986 (Vic) or the Intellectually Disabled Persons’ Services Act 1986 (Vic)’. The Victorian Sentencing Committee in its review of sentencing in Victoria in 1998, interpreted this provision as allowing:

the court hearing the trial of a person who is found insane to make some form of order to enable that person to receive treatment where he or she is mentally ill, or services available through Community Services Victoria [now Health and Community Services] where he or she is intellectually disabled.4

  1. 7.12 However, when the Victorian Parliamentary Community Development Committee reviewed the Governor’s pleasure regime in 1995, it expressed uncertainty about how these orders worked in practice.5 Thus, it is not clear whether such orders were ever used as alternatives to detention at the Governor’s pleasure.

Consequences of findings under the CMIA

  1. 7.13 The CMIA made significant changes to the consequences faced by a person found unfit to stand trial or not guilty because of mental impairment. The impetus for this came from the Community Development Committee’s recognition that the ‘Victorian judiciary are severely limited in the dispositions it can make regarding Governor’s pleasure detainees’.6 Based on the strong support for the court to have a range of options, it recommended that there be three options available. These were the unconditional release of a person, an order for supervision of the person in detention and an order for supervision of the person in the community on conditions.7
  2. 7.14 Table 3 shows the orders that can be made by the Supreme Court and County Court under the CMIA following particular findings in the unfitness and mental impairment process. The court must either:
  • declare that the person is liable to supervision, or
  • order the person to be released unconditionally.

Table 3: Orders under the CMIA in the Supreme Court and County Court

Finding on unfitness

Finding on offence

Order

Unfit to stand trial

Not guilty

Acquitted and released

Not guilty because of mental impairment

Unconditional release

or

Declare liable to supervision (custodial supervision order or non-custodial supervision order)

Committed the offence:

- qualified finding of guilt

- no conviction recorded

Unconditional release

or

Declare liable to supervision (custodial supervision order or non-custodial supervision order)

Fit to stand trial or unfitness not raised

Not guilty

Acquitted and released

Not guilty because of mental impairment

Unconditional release

or

Declare liable to supervision (custodial supervision order or non-custodial supervision order)

Guilty

Conviction and/or sentence under the Sentencing Act

 

  1. 7.15 When the court declares a person liable to supervision, the court must then make a supervision order. A supervision order is for an indefinite term. A supervision order can either be a custodial supervision order or a non-custodial supervision order. Before the court imposes a supervision order, it can also make orders in relation to bail, remand in custody and for a medical or psychological examination of the person.
  2. 7.16 If a person found unfit to stand trial is then found by a jury in a special hearing not to have committed the offence, this is taken to be a finding of not guilty at a criminal trial.8 This is an acquittal and the court is required to release the person.
  3. 7.17 In the Magistrates’ Court, the only option available to a magistrate if they find a person not guilty because of mental impairment is to discharge the person. In Chapter 6, the Commission considers the issues regarding whether there should be other orders available to magistrates under the CMIA.

Process for making orders after a finding under the CMIA

  1. 7.18 Once a person has been declared liable to supervision, the court must make a supervision order. The CMIA sets out the process that it is to follow after a person has been declared liable to supervision and for making a supervision order.
  2. 7.19 In this section, the Commission examines the current process and seeks to identify whether there are issues with the way it operates. In particular, it examines:
  • the process for making an order for unconditional release
  • orders pending the making of a supervision order
  • section 47 certificates on availability of facilities and services
  • reports on mental conditions of people declared liable to supervision.

Process for making an order for unconditional release

  1. 7.20 A court must consider a number of matters prior to making an order for the unconditional release of a person under the CMIA.
  2. 7.21 Section 40(2) of the CMIA requires that the court can only order that person be released unconditionally if the court:
  • has obtained and considered the report of at least one registered medical practitioner or registered psychologist who has examined the person’s mental condition and the possible effect of unconditionally releasing the person on their behaviour
  • is satisfied that the person’s family members and victims of the charged offence have been given reasonable notice of the hearing at which the court is proposing to order release
  • has considered any report of the family members or victims, and
  • has obtained any other reports necessary.9
  1. 7.22 Thus, reports and information must be prepared and provided to the court after the making of findings and prior to a court deciding whether to release the person or declaring them liable to supervision. If this information is not already available, the court may be required to adjourn the matter. This will allow the appropriate expert to examine the person and prepare a report, the Office of Public Prosecutions to inform family members and victims and for family members and victims to prepare a report. The court may not be in a position to decide whether to unconditionally release the person or declare them liable to supervision at the time a finding is made under the CMIA.

Orders pending the making of a supervision order

  1. 7.23 Once the court declares a person liable to supervision, it may make a number of other orders before it makes a supervision order. The orders primarily relate to the facilities and services for supervision and treatment of a person before and during a supervision order.
  2. 7.24 During the court processes for determining the questions of unfitness and mental impairment, a person may be on bail or they may be in custody. In some cases, the person may be in a prison, or the person may be in custody in an approved mental health service (for example, Thomas Embling Hospital) or a residential institution or facility (for example, one operated by the Disability Forensic Assessment and Treatment Service).
  3. 7.25 Once the court has declared a person liable to supervision, it can make an order granting the person bail10 or remanding them in custody.
  4. 7.26 Section 24(1) allows a court to make an order, if in the interests of justice, requiring a person to undergo an examination by a registered medical practitioner or registered psychologist and for the results put before the court.11

Section 47 certificates on availability of facilities and services

  1. 7.27 In deciding whether to remand a person declared liable to supervision, the court can remand the person in custody in an ‘appropriate place’. This means an approved mental health service, a residential treatment facility or a residential institution. However, before making this order, the court must first receive a certificate under section 47 of the CMIA confirming the availability or otherwise of the facilities or services necessary for the custody of that person (section 47 certificate).12
  2. 7.28 Alternatively, the court can remand the person in custody in a prison. However, the court cannot remand a person in prison unless there is ‘no practicable alternative in the circumstances’.13
  3. 7.29 The section 47 certificate requirement also applies when a court makes a supervision order. The certificate is required before a court can order a custodial supervision order committing a person to custody in an appropriate place or a non-custodial supervision order providing for a person to receive services in the community.14 As with remand, the court must not commit a person to prison under custodial supervision order unless it is satisfied that there is no practicable alternative.15
  4. 7.30 The section 47 certificate requirement means that the court’s decisions on bail, remand and choice of supervision order depend heavily on the availability of facilities and services to cater for the needs and risks of the person.
  5. 7.31 A recent example of how a lack of facilities or services can affect a grant of bail is a case that was reported in The Age newspaper. In this case, a person who was intellectually disabled and had early stages of dementia had been held in remand for 371 days prior to being found unfit to stand trial and not guilty because of a mental impairment. There had been no application for bail over this period because of a lack of supervised accommodation. Judge Taft, who presided over the unfitness hearing, made the following comments regarding the situation:

That a man with a significant intellectual disability and dementia should be imprisoned for such a time is an embarrassment to the administration of the criminal justice system.16

  1. 7.32 In some cases, the unavailability of facilities and services may be due to the resources not meeting the demand for services and facilities.
  2. 7.33 Thomas Embling Hospital, the secure mental health service for people subject to the CMIA, has 116 beds. These beds are for people detained under the CMIA, as well as for people who transferred from the prison system due to a mental illness and patients from the public mental health system who require specialised management.
  3. 7.34 Beds at Thomas Embling are spread across a number of distinct units, according to two programs set out in Table 4.
  4. 7.35 The Acute Care Program comprises 60 beds in four distinct units. It is primarily for ‘patients from the criminal justice system who are in need of psychiatric assessment and/or acute care and treatment’.17 Most patients are people detained under the CMIA because of a mental condition and remanded and sentenced prisoners with serious mental illness in need of inpatient treatment.18
  5. 7.36 The Continuing Care Program comprises 56 beds in three distinct units. It is for patients who require ‘long-term care due to chronic [symptoms] and/or behaviours that represent a risk to the community, together with patients whose mental state has been stabilised and who are assessed as ready to commence working towards reintegration into the community’.19 Patients are generally forensic patients, sentenced prisoners or patients/prisoners detained by the courts.20

Table 4: Beds and units at Thomas Embling Hospital, Forensicare21

  1. Acute Care Program

    Name of unit

    Number of beds

    Description

    Argyle

    15 beds

    Male acutely ill patients in a high secure setting.

    Atherton

    15 beds

    Male acutely ill patients in a high secure setting.

    Barossa

    10 beds

    Females requiring acute care in a high secure setting.

    Bass

    20 beds

    Male, sub-acute unit in a high secure environment.

    Continuing Care Program

    Name of unit

    Number of beds

    Description

    Canning

    20 beds

    Extended and sub-acute care, supported living male unit in a high-medium secure environment.

    Daintree

    20 beds

    Rehabilitation and independent living, mixed gender unit in a low-medium secure environment.

    Jardine

    16 beds

    Intensive rehabilitation and independent living, mixed gender unit in a low secure environment.

  2. 7.37 In February 2013, Forensicare announced that it would be required to close 16 hospital beds in the Jardine unit due to ‘the Commonwealth’s $107 million cuts to Victoria’s health system’.22 The chief executive officer of Forensicare said:

Forensicare is the sole provider of these services in Victoria and these are not decisions that our Council has taken lightly. At the forefront of Forensicare’s function is that of community safety. It is critical that Forensicare continues to provide specialist forensic mental health services to ensure that people with a mental illness in the criminal justice system receive appropriate levels of care and treatment.23

  1. 7.38 There are 19 places in residential treatment institutions and treatment facilities. These places are available for persons who meet the criteria for admission under the Disability Act. This may include persons who are subject to a custodial supervision order.24 There are five beds at the Long Term Rehabilitation Program (LTRP) at Plenty Residential Services in Bundoora managed within the North Division, North Eastern Melbourne Area of the Department of Human Services and 14 beds at the Intensive Residential Treatment Program (IRTP) of the Disability Forensic Assessment and Treatment Service. People subject to custodial supervision orders must also meet criteria under the Disability Act in order to be admitted to a residential institution or residential treatment facility.25
  2. 7.39 In other cases, the particular mental condition or the type of offending behaviour presents difficulties in finding appropriate facilities or services. For example, personality disorders can be challenging to treat effectively and people with an intellectual disability with a history of sexual offending can also present challenges in supervision.
  3. 7.40 It is inappropriate for a person who has been found unfit or not guilty because of mental impairment to be in a prison. As discussed at [3.8]–[3.42], people with a mental illness, intellectual disability or cognitive impairment are particularly vulnerable in the criminal justice system. Prisons lack the specialised services required for managing and treating people subject to the CMIA and expose already vulnerable people to conditions that can be detrimental to their mental state and cause further harm.
  4. 7.41 The Community Development Committee’s review of the Governor’s pleasure regime found that many people subject to the regime were detained in prisons rather than mental health or disability services. Submissions to the Community Development Committee raised a range of issues regarding this. The Community Development Committee also referred to the problematic experiences described in a group submission by 13 Governor’s pleasure detainees. For example, one detainee said:

To be honest, Pentridge is rather frightening. I had never been in prison or in trouble before … I was mixing with people I had never mixed with before and it was really frightening to say the least.26

  1. 7.42 The Community Development Committee also heard evidence that a number of people ultimately subject to the Governor’s pleasure regime were also initially remanded in prison.27 The Community Development Committee’s recommendation was that ‘no person who is found not guilty of a crime on the ground of metal impairment or unfit to plead on the ground of mental impairment should be detained in a prison’.28

Question

  1. 60Are there appropriate and sufficient facilities and services for people subject to the CMIA?

 

Reports on the mental condition of people declared liable to supervision

  1. 7.43 When a person is declared liable to supervision, in addition to the section 47 certificate, the court receives a report on the mental condition of the person. The ‘appropriate person’, that is the service responsible for supervising the person, is responsible for providing this report. This is either the authorised psychiatrist for Forensicare (for people with a mental illness)29 or the Secretary to the Department of Human Services (for people with an intellectual disability).30
  2. 7.44 The report on the mental condition of the person must be provided within 30 days of the person being declared liable to supervision. It contains the following:
  • a diagnosis and prognosis of the condition or an outline of the person’s behavioural problems
  • the person’s response to treatment, therapy and counselling
  • a suggested treatment or other plan for managing the condition.31
  1. 7.45 A clinician at Forensicare assesses people with a mental illness. The authorised psychiatrist of Forensicare or the authorised psychiatrist of the service that will provide the treatment (an approved mental health service or a private practitioner) will generally develop a treatment plan.32 A private psychologist is usually contracted by regional Disability Client Services to assess people with an intellectual disability and prepare a treatment plan on behalf of the Secretary of the Department of Human Services.33
  2. 7.46 The aim of the 30-day period for preparing the mental condition report is to give ‘sufficient time to negotiate service delivery … to develop clinical and management strategies to meet the needs of the person and to discuss the proposal with the person and where appropriate any primary carer or family members’.34 However, in practice the report is usually required well before the 30 days limit, and the mental condition report and the section 47 certificate are often prepared at the same time.35 The court requires both reports before it can make a supervision order. If the court remanded the person in custody after declaring them liable to supervision, it may have already received a section 47 certificate.

Question

  1. 61Are changes needed to the provisions under the CMIA governing mental condition reports and/or section 47 certificates to ensure adequate and timely information is provided to the courts?

 

Nature of supervision orders

  1. 7.47 If a court declares a person liable to supervision, it must make a supervision order.36 The court can make one of the following orders:
  • an order committing the person to custody
  • an order releasing the person on conditions decided by the court and specified in the order.37
  1. 7.48 Chapter 9 discusses the principles and matters that the court is required to take into account in making a supervision order.
  2. 7.49 In its preliminary research, the Commission identified a number of possible issues regarding the nature of supervision orders under the CMIA. In this section, the Commission describes how supervision orders are currently structured and raises a number of issues about how this structure operates in practice. These include:
  • the method for setting a nominal term
  • possible effects of the indefinite nature of supervision orders.

Indefinite nature of the order with a ‘nominal term’

  1. 7.50 A supervision order under the CMIA is an indefinite order.38 This means that the person can be subject to the order for an indefinite period, possibly for the rest of their life.
  2. 7.51 When a court imposes a supervision order, it must then set a ‘nominal term’ in accordance with the CMIA. A nominal term is the period that specifies when the court is to conduct a major review of the order and decide whether to decrease the level of supervision.
  3. 7.52 The court may also direct that the matter be brought back to the court for review at the end of a specified period.39
  4. 7.53 These requirements are part of the CMIA’s system for the review of the order (discussed inChapter 8 at [8.21]–[8.44]). The purpose of the nominal term is to ensure that the court reviews the order over this indefinite period. If appropriate, having regard to a range of principles and factors, the court may reduce the level of supervision with a view to possible release. This reflects the principle of gradual reintegration and aims to ensure that the period of detention is referable to the person’s mental condition and risk posed to community safety.
  5. 7.54 The Community Development Committee expressed concerns about detention without any fixed period for review or date for possible release under the Governor’s pleasure regime. It had particular concerns when periods of detention were longer than what the person would have served had they been convicted of the offence charged.40
  6. 7.55 To address these concerns, the Community Development Committee recommended that a ‘limiting term’ be set when a supervision order is imposed that would denote when the order would lapse.41 This aimed to provide a safeguard against arbitrary and indefinite detention of people when they no longer posed a risk to the community. The Community Development Committee said:

a more structured and rigorous release process will significantly reduce the likelihood of persons being detained for longer than their condition warrants. However, the only way to ensure that persons with a mental impairment are not detained for periods which are significantly disproportionate to those for which sentenced offenders are detained, is to state a time when that person’s forensic status must end.42

  1. 7.56 In adopting this approach, the Community Development Committee weighed both the arguments for and against the inclusion of a term that provides for the review of a supervision order. It had regard to the ‘tension between the competing concepts of a limiting term and release decisions being based on response to treatment and assessments of dangerousness’.43 It noted in particular, the comments made by Dr David Neal about the risks in each system:

One danger is the tariff and the other danger is open-ended detention becoming, ‘Let’s play it safe and hold people well beyond when they ought to have been held if their mental illness were really the consideration.’ The underlying question is: Are these people continuing to be ill and continuing to be dangerous? I think to some extent there is a tension with a limiting term, but the danger of not having a limiting term outweighs that for me.44

  1. 7.57 There is no uniform approach to the nature of supervision orders across Australian jurisdictions.
  2. 7.58 Queensland, Tasmania and Western Australia do not have limiting terms on supervision orders. In Queensland, a ‘forensic order’ remains in force until revoked by the Mental Health Tribunal.45 There is no period of detention specified for persons on ‘restriction orders’ in Tasmania. In Western Australia, a mentally impaired accused is detained until released by an order of the Governor.46 The Governor may order the release of the person from custody if the Minister advises the Governor to do so on a recommendation by the Mentally Impaired Accused Board.47
  3. 7.59 New South Wales and South Australia specify limiting terms in their legislation. In New South Wales a limiting term must be nominated. A limiting term is defined as ‘in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence’.48 A limiting term in South Australia is also required and is ‘equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established’.49
  4. 7.60 The nominal term in the CMIA seeks to strike a balance between two competing considerations.50 On the one hand, it aims to prevent the detention of people on an indefinite order with no opportunity to review or release when they no longer pose a risk to the community. On the other hand, it aims to prevent the release of people subject to supervision orders while they still pose a risk to the community.

Question

  1. 62Is the use of a nominal term an effective safeguard in balancing the protection of the community with the rights of the person subject to a supervision order?

 

The method for setting a nominal term

  1. 7.61 A court is required to impose a nominal term in accordance with section 28 of the CMIA. The nominal term is imposed with reference to the maximum penalty of the offence that the person has been found not guilty of or found at a special hearing to have committed.
  2. 7.62 The section comprises a table setting out the nominal terms as follows:
  • murder or treason—25 years (the penalty for murder and treason under the Crimes Act is life imprisonment or such term of years as is fixed by the court).
  • a ‘serious offence’ within the meaning of the Sentencing Act51—the maximum term of imprisonment for the offence
  • any other offence that has a term of imprisonment as its statutory maximum penalty—half the maximum term of imprisonment for the offence
  • any other offence punishable by imprisonment where there is no statutory maximum penalty—a period specified by the court.
  1. 7.63 In some cases, a person may be found not guilty because of mental impairment of more than one offence or found at a special hearing to have committed more than one offence. If this is the case, the nominal term is calculated by reference to the offence that carries the longest maximum term of imprisonment.52
  2. 7.64 This method of calculating the nominal term is different to that recommended by the Community Development Committee in its recommendation to introduce a limiting term as part of supervision orders. The Community Development Committee recommended that the limiting term to be set was to be

equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment or supervision) that would, in the judge’s opinion, have been appropriate if the defendant had been convicted of the offence concerned.53

  1. 7.65 The current method for setting the nominal term is referable to the highest possible penalty for the offence, not the sentence that the judge would have imposed on the person if convicted.
  2. 7.66 The Community Development Committee considered the current method in the CMIA as part of its inquiry and rejected this approach for a number of reasons including:
  • it would be unfair and misleading to use a maximum penalty where it would be highly unusual to have the maximum sentence imposed if convicted
  • it exposes the person subject to the order to dramatic increases in the maximum penalty by parliament
  • it is contrary to the principle of proportionality in sentencing.54
  1. 7.67 On the other hand, the possible advantages of the approach are that it provides consistency in setting nominal terms and may also be a more appropriate reflection of community expectations of the consequences that flow from a finding under the CMIA.
  2. 7.68 The Community Development Committee also considered arguments against its recommended method of using the period of imprisonment or supervision had the person been convicted. These were:
  • the process is artificial as sentencing is primarily based on factors that are not appropriate when a person is not criminally responsible for the offence (for example the person’s remorse or the need to deter the person)
  • the method would require a hypothetical sentencing hearing which would take time and resources.55

Question

  1. 63Should the method for setting the nominal term be changed? If so, how should it be changed?

 

Possible effects of the indefinite nature of supervision orders

  1. 7.69 In its preliminary research, the Commission has identified a number of possible issues with the current nature of supervision orders under the CMIA. These issues relate to how the indefinite nature of supervision orders affects different people under CMIA, in particular people who are subject to supervision orders, their family members and victims in CMIA matters.
  2. 7.70 One issue is whether there are sufficient levels of knowledge and understanding among people involved in CMIA proceedings of the nature of supervision orders and the concept and operation of nominal terms. People involved in CMIA proceedings could include lawyers, accused people and their family members and victims in CMIA matters.
  3. 7.71 Another series of issues relates to the impact that the indefinite nature of the regime can have on people who are affected by the CMIA. These include the following matters:
  • whether the indefinite nature of the regime provides a disincentive for a person to proceed down the CMIA pathway
  • whether an indefinite supervision order impedes a person’s recovery and progress under a supervision order
  • what effect indefinite supervision orders have on victims and their family members in matters under the CMIA.
  1. 7.72 Previous reviews of the Governor’s pleasure regime have flagged issues on these matters. However, there is little information about how the nature of supervision orders in the current system under the CMIA affects people who are subject to the regime.

Knowledge and understanding of the nature of supervision orders and operation of nominal terms

  1. 7.73 The Commission’s preliminary research indicates that there may be confusion around the indefinite length of supervision orders and the meaning of nominal terms. For example, a nominal term does not denote the length of the order or the release date for the person subject to the order.
  2. 7.74 It is important that lawyers understand the meaning and implications of supervision orders under the CMIA so that they may provide accurate legal advice on the decision to proceed down the CMIA pathway. This is particularly so when the person faces a potentially onerous and indefinite supervision regime.
  3. 7.75 It is also important that victims have an accurate understanding of the nature of supervision orders and nominal terms and the implications that these will have on the length of time a person may be subject to supervision under the CMIA. The guide Prosecuting Mental Impairment Matters56 released by the Office of Public Prosecutions discussed at [2.75]–[2.76] is a useful tool to assist victims and other people who are involved in the process, such as family members of the person subject to the CMIA, to understand the processes and become aware of their rights.
  4. 7.76 It is also important that the community has an accurate understanding of the nature of the regime that follows the making of a supervision order under the CMIA, including the indefinite nature of the orders and the meaning of a nominal term. The media play a key role in the level of community knowledge and perceptions of the consequences under supervision orders.

Question

  1. 64What steps should be undertaken for people involved in CMIA proceedings to better understand the expression ‘nominal term’?

 

The indefinite supervision order as a disincentive

  1. 7.77 In its report on Mental Malfunction and Criminal Responsibility, the Law Reform Commission of Victoria recognised that indefinite supervision orders with no limiting term operated as a disincentive for people to raise the insanity defence.57
  2. 7.78 The Commission’s preliminary research suggests that the indefinite nature of the regime can influence the decisions that accused persons make.
  3. 7.79 A person charged with an offence has a number of choices. They can choose to plead guilty or not guilty to the charge. If at the time of the charged offence the person had a mental impairment, they could choose to plead guilty and raise the defence of mental impairment. They may receive advice from their lawyer on the likely consequences of each choice.
  4. 7.80 The lawyer should provide advice on the likely sentence and non-parole period the person might expect to receive if they plead guilty or a jury finds them guilty. If the person is facing a sentence of imprisonment, they will have advice on the likely period of time that they may be in prison and know that there will be a fixed date for their release at the end of the sentence.58
  5. 7.81 The lawyer should also advise them of the likely consequences of a finding of not guilty because of mental impairment. This advice will explain that the accused person could be subject to an indefinite supervision order with a nominal term set for a major review of the order. Depending on the offence, the nominal term could be half or all of the period of the maximum penalty for that offence.
  6. 7.82 For example, if the offence was intentionally causing serious injury, the nominal term under the CMIA is set at 25 years. Under the usual criminal process, the highest imprisonment length imposed in the higher courts for that offence for the four-year period from 2006–07 to 2010–11 was 15 years. The majority of people sentenced in that period received lengths of imprisonment from two years to less than six years (72.6 per cent).59
  7. 7.83 Presented with these two options, the person may choose to plead guilty and receive a sentence that is almost certainly shorter in length than the period of the nominal term. The person may choose to do this even though they had a legitimate mental impairment defence to the charge.
  8. 7.84 If this occurs, the outcomes may be inconsistent with the CMIA’s underlying principles. There could be the abrogation of the right to a fair trial for people who are unfit to stand trial. Alternatively, the result may be the illegitimate punishment of a person who has been found to be criminally responsible for an offence. This can also result in the further over representation of people with mental conditions in the prison population.

Question

  1. 65What factors affect the advice of lawyers and decisions of accused people in raising the issue of unfitness to stand trial or the defence of mental impairment?

 

The effect of indefinite supervision orders on people affected by the CMIA

  1. 7.85 In its review of the Governor’s pleasure regime, the Community Development Committee heard evidence about the detrimental effect that imposing an order without a release date can have on the wellbeing of the person subject to the order. For example, one detainee said:

By the law, I am not guilty on the grounds of insanity but in reality I am detained for an indefinite period of time.60

  1. 7.86 If there are detrimental effects to the recovery of people subject to the CMIA, this may be contrary to one of its underlying principles—the therapeutic aim of the process.
  2. 7.87 However, this must be balanced with other principles, such as the protection of the community from the likely danger posed by the person. Victims’ rights and interests are also paramount. The choice of supervision order and its length will have a direct impact on victims in CMIA matters. Victims of crime or family members of victims who are injured or killed in CMIA matters are likely to experience high levels of trauma and fear. Decisions regarding the type of supervision order, the nature of the order, the nominal term and the length of supervision will therefore also affect their wellbeing and recovery.
  3. 7.88 Therefore, a relevant factor in understanding the effect of indefinite supervision orders is the effect that they have on victims and their family members. Other people, such as the family members of the person subject to the order may also be affected. In some cases, where the offence involves a member of the person’s family, other family members will also be both victims and family members of the person subject to the order. Family members may also be affected by virtue of the support role that they may play to the person subject to the order.

Question

  1. 66In your experience as either a person subject to a supervision order, a family member of a person subject to a supervision order or a victim in a CMIA matter, how has the indefinite nature of a supervision order affected you?

 

Appeals against orders for unconditional release and supervision

  1. 7.89 The CMIA provides appeal rights to various parties to appeal against orders made by the court following findings under the CMIA.

Current law

  1. 7.90 The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release. To lodge such an appeal, the Director of Public Prosecutions must consider that the order should not have been made and that the appeal should be brought in the public interest.61 This right exists in both the unfitness and mental impairment processes.
  2. 7.91 The Court of Appeal may either confirm the order or set aside the order and declare the person liable to supervision. If the Court of Appeal declares the person liable to supervision, it can either remit the matter back to the original court with or without directions or it can make a supervision order.62
  3. 7.92 The CMIA does not provide a right for a person to appeal against a declaration that they are liable to supervision. However, a person has the right to appeal against a supervision order (either a custodial supervision order or non-custodial supervision order) once it has been made by the court.63
  4. 7.93 The Director of Public Prosecutions, Attorney-General, the Secretary to the Department of Human Services and the Secretary to the Department of Health can also appeal against a supervision order. To lodge such an appeal, the party must consider that a different supervision order should have been made and that an appeal should be brought in the public interest.64
  5. 7.94 In an appeal against a supervision order, the Court of Appeal may do one of the following:
  • confirm the supervision order
  • set aside the supervision order and substitute it with another supervision order
  • set aside the supervision order and remit the matter back to the original court with or without directions, or
  • set aside the supervision order and order that the person be unconditionally released.65

Principles underpinning appeals

  1. 7.95 These rights exist to prevent unjust outcomes, to maintain consistency and provide legitimacy to the criminal justice system.
  2. 7.96 The opportunity to appeal against a supervision order is important given that the order results in the supervision of a vulnerable person for an indefinite period. This reflects the principle of least restriction and that community safety ought to be balanced with the right of the person to liberty.
  3. 7.97 It is also important that other parties have the right to appeal against these orders under the CMIA to ensure it operates in a way that is consistent with its underlying principles, such as community protection, the principle of least restriction, victims’ rights and interests and gradual reintegration. However, the Commission’s preliminary research suggests that clarity is required around the purposes of these appeal rights and identifying the interests that are represented. The Commission considers this issue in Chapter 9 as part of a holistic examination of the arrangements for representing and considering various interests under the provisions governing supervision and review.
  4. 7.98 Research suggests that appeals against findings by people subject to the CMIA are rare (see, for example Chapter 4 at [4.140]). However, appeals against supervision orders may be more frequent. The Commission is seeking to gather data on the number of appeals against orders for unconditional release and supervision orders.

Question

  1. 67Are there any barriers to people subject to supervision orders and other parties pursuing appeals against supervision orders?

 

Ancillary orders and other consequences of findings under the CMIA

  1. 7.99 As discussed in the introduction to this chapter, in the usual criminal process, ancillary orders can be made in addition to a sentence when a person is found guilty of an offence. The ancillary orders that follow can vary depending on the particular type of offence. In some cases, the orders can be made at the court’s discretion and others are mandatory requirements by virtue of legislation.
  2. 7.100 A finding under the CMIA does not result in a conviction for an offence.
  3. 7.101 A person who is found not guilty because of mental impairment is not deemed criminally responsible for the offence.
  4. 7.102 A person found unfit to stand trial but found to have committed the offence is not convicted of the offence. The finding in a special hearing that the accused person committed the offence is a ‘qualified finding of guilt’. It is similar to a finding of guilty in the usual trial process in that the person cannot be prosecuted for the same circumstances66 and the person has the same appeal rights as if they had been convicted of the offence in a criminal trial. However, unlike a guilty finding in a criminal trial, the finding that the person committed the offence does not provide a legal basis for a conviction to be recorded against the person.67
  5. 7.103 In the usual criminal process, when a person is found guilty of an offence, the court is usually required to record a conviction against the person. When the offence is less serious, the court usually has a discretion to record no conviction. Some ancillary orders can only be made following a conviction, while others can flow after a finding of guilt without a conviction of a person.
  6. 7.104 An issue arises as to whether the ancillary orders that can flow in addition to sentencing can also be consequent on a finding under the CMIA. In this section, the Commission briefly examines a number of these orders, by way of example, and seeks input on the operation of ancillary orders under the CMIA.

Orders in addition to sentence

  1. 7.105 There are a number of different orders that can be made in addition to a sentence, either by a court or automatically.

Restitution, compensation and recovery

  1. 7.106 Part 4 of the Sentencing Act provides for a number of orders to be made following a finding of guilt for an offence. These are:
    • Restitution order—where a person is found guilty or convicted of an offence connected with theft, an order requiring the return of stolen goods or property or money to replace the stolen goods.68
    • Compensation order—where a person is found guilty and convicted of an offence, an order for compensation for:

pain and suffering to any person who has sustained an injury as a direct result of the offence,69 or

property loss sustained to any person who has suffered loss or destruction of, or damage, to property.70

  • Order for recovery of assistance paid under the Victims of Crime Assistance Act 1996—where a person is found guilty of or convicted of particular offences71 and an award of assistance is made in respect of an injury or death resulting from an offence, an order requiring the offender to pay to the state an amount of money.72
  • Cost recovery order—where a person is found guilty or convicted of an offence relating to contamination of goods and bomb hoaxes, an order requiring the offender to pay to the state an amount to fit the costs incurred by an emergency services agency, such as Victoria Police or the Ambulance Service Victoria.73

Licence cancellation and disqualification

  1. 7.107 Other examples of consequences that can follow conviction and/or sentence for an offence are cancellation of and disqualification from obtaining a driver licence or suspension of a driver licence.
  2. 7.108 Section 89 of the Sentencing Act requires a court to cancel a driver licence and disqualify a person from obtaining one for at least 18 months if they are found guilty of various offences arising out of the driving of a motor vehicle by the offender, including:
  • manslaughter
  • negligently causing serious injury
  • culpable driving causing death
  • dangerous driving causing death or serious injury.
  1. 7.109 The Road Safety Act 1986 (Vic) also provides for various categories of automatic and court-ordered licence suspension and disqualification, depending on the type of offence.
  2. 7.110 An example of an automatic order of this type is for an offence of drink driving. If police issue an infringement notice for an offence of drink driving above a certain blood alcohol concentration level, the person’s licence is automatically cancelled and the person is disqualified from obtaining a new licence for a specified period of between six months and four years.74 An example of court ordered suspension and disqualification is the power of a court to suspend a person’s licence for any offence under the Road Safety Act.75

Confiscation and forfeiture

  1. 7.111 Another consequence that can follow findings of guilt in the criminal process is orders for confiscation or forfeiture of property used in the commission of offences or owned by the offender.
  2. 7.112 Confiscation and forfeiture laws have their roots in long-established concepts in relation to removing the right to hold, inherit or dispose of property (referred to as ‘attainder’) and the confiscation of instruments of crime or damage (referred to as ‘deodand’).76 The difference between confiscation and forfeiture has been described as follows:

‘forfeiture’ describes the procedure used to take away specific property belonging to an offender or someone else that is ‘tainted’ because it was either used in connection with, or was derived from, the commission of an offence. The term ‘confiscation’ is slightly broader and describes the procedure for taking away any financial benefits gained through criminal activity, through the making of a ‘pecuniary penalty order’.77

  1. 7.113 In Victoria, the Confiscation Act 1997 (Vic) governs the laws for forfeiture and confiscation of property following charges or convictions for Victorian offences. The scheme is primarily conviction based, but depending on the type of offence, the mechanism for confiscation or forfeiture varies.
  2. 7.114 The Confiscation Act provides for confiscation through discretionary court ordered forfeiture, automatic forfeiture, discretionary civil forfeiture and discretionary pecuniary penalty orders. By way of summary, the Confiscation Act provides for the following orders:
  • court-ordered forfeiture—a discretionary court order for forfeiture of tainted property upon conviction of any indictable offence or a specified summary offence78
  • automatic forfeiture—an automatic order for forfeiture of property that has been ‘restrained’79 upon conviction of an ‘automatic forfeiture offence’ (primarily serious drug offences involving commercial quantities and serious fraud offences)80
  • civil forfeiture—a discretionary court order for forfeiture of tainted property that has been restrained under the automatic forfeiture provisions upon the court finding that the accused committed a certain offence on the balance of probabilities (no finding of guilt or conviction required)81
  • pecuniary penalty orders—a discretionary court order for a person to pay a sum of money to the Crown equivalent to the proceeds of crime upon conviction or a finding on the balance of probabilities that the person committed an automatic forfeiture offence (no finding of guilt or conviction required).82
  1. 7.115 Forfeiture and confiscation orders have the potential to affect people subject to the CMIA. Many of the orders require a conviction of an offence; therefore they may not follow a CMIA finding. However, in some cases a court can make forfeiture orders if it is satisfied that the person committed a particular offence on the balance of probabilities.
  2. 7.116 There are potential difficulties with some types of orders for forfeiture and confiscation when applied in the CMIA setting. This is due to the proportionality principle. In general, the court is not to have regard to the confiscation of profits that relate solely to the proceeds of crime when imposing sentence. However, if a person’s lawfully acquired property is forfeited because they used it in the commission of an offence, the court must consider this in sentencing.83 This is because of the punitive impact that such orders can have on offenders, in addition to the sentence.84
  3. 7.117 The principle of legitimate punishment applies to the CMIA. Therefore, it would not be appropriate for a punitive forfeiture order to be imposed following a finding under the CMIA that a person is not criminally responsible for an offence.

Administrative consequences in addition to sentence

  1. 7.118 Another type of consequence that can follow in addition to a sentence for a criminal offence is an administrative consequence.

Sex offender registration

  1. 7.119 One such example is registration on a register of sexual offenders, the Sex Offenders Register. The Sex Offenders Registration Act 2004 (Vic) sets out a scheme for the registration of people who have been found guilty of or sentenced for particular offences. Upon registration, sex offenders are required to comply with various reporting requirements.
  2. 7.120 The purpose of the sex offenders registration scheme is ‘to require sex offenders to provide information to the police on a regular basis in order to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of future offences’.85
  3. 7.121 A person becomes a ‘registrable offender’ if a court has, at any time, sentenced the person for a ‘registrable offence’.86 Registrable offenders are required to comply with the reporting obligations in the Sex Offenders Registration Act.87
  4. 7.122 Whether an offender will be included in the Sex Offenders Register, and subject to the reporting obligations, depends on:
  • whether they are an adult or a child at the time of committing the offence, and
  • the type of offence committed.
  1. 7.123 All adults who are sentenced for Class 1 or 2 offences—broadly speaking, sexual offences against or involving children88—automatically become registered sex offenders.89 For these offenders, registration is a mandatory, administrative consequence of sentence. There are no exceptions and the court has no discretion regarding registration.
  2. 7.124 In addition to the mandatory registration of those offenders, the courts have discretionary powers to register other offenders by making a sex offender registration order. The court may make a sex offender registration order, to include a person in the Sex Offenders Register and make them subject to reporting obligations, when:
  • it finds a person guilty of any offence, other than a sexual offence against or involving a child90, or
  • it sentences a person for a sexual offence against or involving a child, committed as a child91, or
  • it finds a person guilty of any offence, sexual offence against or involving a child, committed as a child, and
  • it is satisfied, beyond reasonable doubt that ‘the person poses a risk to the sexual safety of one or more persons or of the community’.92
  1. 7.125 The Sex Offenders Registration Act contemplates the inclusion of people who are subject to the CMIA on the Sex Offenders Register. Depending on the type of offender and type of offence, registration consequences may flow from either a ‘finding of guilt’ or a ‘sentence’ within the meaning of the Sex Offenders Registration Act.93
  2. 7.126 Section 4(1)(d) of the Sex Offenders Registration Act defines a finding of guilt in relation to an offence to include a:
  • a finding in a special hearing that a person is not guilty because of mental impairment94
  • a finding in a special hearing that a person committed the offence95
  • a finding in a special hearing that a person committed an offence available as an alternative96, or
  • a finding of not guilty because of mental impairment.97
  1. 7.127 For the purposes of the Sex Offenders Registration Act, a sentence is defined to include:
  • a declaration under sections 18(4)(a) or 23(a) of the CMIA that the accused is liable to supervision under Part 5 of the CMIA, and
  • an order that the accused be released unconditionally, made under sections 18(4)(b) or 23(b) of the CMIA.98
  1. 7.128 The Sex Offenders Registration Act also provides for alternative reporting arrangements for a person with a ‘disability’ defined as a person who is a forensic patient or a forensic resident under the CMIA.99 When a forensic patient or forensic resident is subject to reporting requirements under the sex offenders register, their parent, guardian, carer or another person nominated by them can make reports.100
  2. 7.129 Disability is also a factor that can be taken into account by a court when considering an offence of failing to comply with reporting obligations.101
  3. 7.130 The Commission examined issues regarding the registration of offenders in its reference on Sex Offenders Registration. In its final report, released in April 2012, the Commission made a number of recommendations regarding mandatory and discretionary registration, and the categorisation of offences for the purposes of mandatory sex offender registration.102
  4. 7.131 One of the Commission’s recommendations related to the circumstances in which a court should be permitted to decline to make a registration order in respect of any person found guilty of any offence at any time. One of the circumstances was that if the court was satisfied on the balance of probabilities that:

the person would be unable to comply with the reporting obligations due to physical or cognitive impairment.103

Licensing and accreditation

  1. 7.132 Another example of an administrative consequence that can follow from a finding of guilt is the prevention of a person from obtaining licences or accreditation required for particular positions of employment.
Accreditation for public transport
  1. 7.133 The Bus Safety Act 2009 (Vic) sets out a number of requirements in order for a person to be accredited to operate a commercial or local bus service. An application for accreditation must be refused if the person has been found guilty of particular types of offences. The findings under the CMIA listed above are included in the definition of a guilty finding.104
  2. 7.134 Consequences of this nature were also highlighted in a series of decisions following from the case of XFJ v Director of Public Transport (Occupational Business Regulation).105
  3. 7.135 In 1992, the court found XFJ not guilty of murder because of mental impairment. The court detained XFJ on a Governor’s pleasure order. Subsequently, the court released him after six years of detention and treatment and revoked his supervision order in 2003.
  4. 7.136 In 2001, XFJ applied to the Victorian Taxi Directorate to be accredited as a taxi driver under the Transport (Compliance and Miscellaneous) Act 1983 (Vic). After several years of refusals, he took the case to the Victorian Civil and Administrative Tribunal (VCAT).106
  5. 7.137 The main issue in the case became ‘whether a person who has committed an act of extreme violence, while experiencing severe mental illness, can rehabilitate and be fully integrated into the community’.107
  6. 7.138 VCAT heard psychiatric evidence regarding XFJ’s past and current mental condition and his risk of further violence. The Director of Public Transport argued that accreditation should be denied on the ‘public care objective’ in the Transport (Compliance and Miscellaneous) Act as:

there was an objective risk that XFJ would engage in further violence, and there was a subjective possibility that members of the community would be apprehensive about having XFJ as their taxi driver.108

  1. 7.139 VCAT rejected the Director’s arguments and set aside the denial of XFJ’s accreditation. After a series of appeals, the Director appealed to the Court of Appeal. The Court of Appeal unanimously dismissed the application. It emphasised that all the circumstances at the time of the killing were relevant to an assessment of the public’s perceptions and expectations of XFJ as a ‘suitable person’ to be accredited to drive taxis. The court said:

Our community does not attribute responsibility for criminal acts to those who, at the time of the commission of those acts, are unable to appreciate that what they are doing is wrong … it would be [unfair] to judge a person by reference merely to a physical act, without considering all of the surrounding circumstances.109

  1. 7.140 The issue at the core of such a case has been said to be whether a ‘mentally ill person can ever be allowed to rehabilitate’.110
Working with children check
  1. 7.141 Another example is the consequences that a finding of guilt can have on an application for a ‘working with children check’. The purpose of a working with children check is to ‘assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body’.111 The provisions are set out in the Working with Children Act 2005 (Vic).
  2. 7.142 A finding of guilt for particular offences, particular sentences or sex offender registration can affect whether the Secretary to the Department of Justice will grant or even assess an application for a working with children check. Applications are categorised according to a number of factors, including whether a person:
  • has been found guilty of certain offences
  • is subject to sex offender registration, or
  • is under particular sentencing or supervision orders.
  1. 7.143 For example, if a person has been found guilty of a sexual offence against a child, their application for a working with children check will not be assessed by the Secretary to the Department of Justice.112 The findings under the CMIA listed above are included in the definition of a guilty finding.113

Questions

  1. 68Should the ancillary orders and administrative consequences that follow in usual criminal proceedings apply to findings made under the CMIA?

  2. 69Which ancillary orders and administrative consequences are appropriate and why?

 

 

 

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