Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Report

Appendix D: Data

CMIA cases in the higher courts, 2000–01 to 2011–12

The Sentencing Advisory Council (SAC) provided the Commission with data from its higher courts sentencing database on cases that were dealt with in the Supreme Court and County Court and resulted in the imposition of an order under the CMIA.

Methodology

Higher courts sentencing database

SAC maintains a database of sentencing data from Victorian courts, via Courts Services. SAC provided the Commission with an extract of data from this database for the purposes of its review of the CMIA.

The extract comprised data on orders imposed in the higher courts under the CMIA for the period 2000–01 to 2011–12. Variables included in the data were:

• number per financial year

• type of order (custodial supervision order, non-custodial supervision order, unconditional release)

• offence type

• age and gender of person

• length of nominal term.

Identification of indictable offences triable summarily determined in the County Court

The database was analysed to estimate the number of CMIA cases that were determined in the County Court that could have been determined in the Magistrates’ Court under the CMIA, had it had power to determine unfitness or to impose orders following a finding of not guilty because of mental impairment.

Information provided on the offence type identified the ‘principal offence’. This relates to the offence in the case which has the highest maximum penalty. Cases were selected that involved accused 21 years and over,[1] determined in the County Court[2] and had a principal offence (or a form of that offence) that was indictable triable summarily. In relation to some offences, whether or not the particular offence is indictable triable summarily depends on the value of the damage caused or property stolen or the particular level of intention associated with the commission of an offence.[3]

Of the total 159 cases, there were 59 that involved adults aged 21 years or over where the principal offence was indictable triable summarily and that were determined in the County Court. See Table 7 for offence types and orders imposed.

Identification of indictable offences involving young people determined in the Children’s Court

The database was analysed to estimate the number of CMIA cases involving young people that were determined in the County Court that could have been determined in the Children’s Court under the CMIA, had it had power to determine unfitness or to impose orders following a finding of not guilty because of mental impairment.

Information provided on the offence type identified the ‘principal offence’ and was used to identify cases involving indictable offences within the Children’s Court jurisdiction. Information on the age of the person was used to identify nine cases where the person was aged under 21 years when the CMIA order was imposed.

Given the time that matters take to proceed, it was assumed that these cases involved accused who had been children at the time of the offence and would have come within the criminal jurisdiction of the Children’s Court. This was used to provide an indication of the number of cases that could have been dealt with in the Children’s Court had it had the power to deal with unfitness or impose orders after a finding of not guilty because of mental impairment. See Table 8 for offence types and orders.

Access to judgments for CMIA cases in the database

The data included access to electronic judgments for some cases and links to judgments published on the Australasian Legal Information Institute (AustLII) website. The Commission sought and received a number of additional judgments direct from the Supreme Court and County Court for cases in the database that were missing from the original dataset.

Of the 159 cases in which a CMIA order was imposed over the relevant period, the Commission had access to 65 judgments in total.

Analysis of judgments

The judgments were analysed by Commission staff and data collected from them according to the variables listed below:

• History of mental illness (yes/no)

• Details of history (free text)

• Unfitness raised (yes/no)

• Fitness finding (unfit/fit)

• Contested (yes/no)

• Mental condition (underlying unfitness)

• Mental impairment raised (yes/no)

• Mental impairment finding (not guilty because of mental impairment/guilty/not guilty)

• Basis of finding for test (nature/quality or right/wrong or both)

• Consent (yes/no)

• Mental condition (underlying mental impairment)

• Section 47 certificate present (yes/no)

• Section 41 report present (yes/no)

• Order imposed (custodial supervision order/non-custodial supervision order/

unconditional release)

• Victim known or related (yes/no)

• Relationship (free text)

• Court report from victim or family member (yes/no)

• Info from court report (free text)

• Circumstances of offender/other (free text)

In many cases there was insufficient information in the judgment or the judgment was silent on the specified variable. As a general rule, ‘Yes’ was used when the variable was present. ‘No’ was used when the content of the variable was not apparent from the transcript of the judgment, and so does not indicate that the variable was not present but rather that there was no information to support the presence of the variable.

Given that judgments were not available for all 159 cases and many of the 65 judgments did not include information on all the variables sought to be measured, the analysis is not relied on as representative of all CMIA cases in the database.

Raw data—higher courts sentencing database

Table 5: Number and type of supervision order by age

Age

Custodial supervision order

Non-custodial supervision order

Unconditional release

Total

Under 20

3

8

-–

11

21–24

7

7

2

16

25–29

6

19

1

26

30–34

8

17

25

35–39

3

7

10

40–44

7

20

27

45–49

2

11

1

14

50–54

4

4

8

55 and over

7

9

6

22

Total

47

102

10

159

Mean

37.6

36.9

58.6

38.5

Minimum

19

17

23

17

Maximum

76

79

85

85

Table 6: Number and type of supervision order by principal offence (in order of total number of orders imposed) in higher courts

No.

Offence

Custodial supervision order

Non-custodial supervision order

Unconditional release

Total

1

Intentionally causing serious injury

8

25

1

34

2

Murder (common law)

22

3

25

3

Attempted murder

9

5

14

4

Indecent act with a child under 16

8

4

12

5

Intentionally causing injury

2

7

9

6

Recklessly causing serious injury

2

6

8

7

Reckless conduct endangering life

1

3

1

5

8

Sexual penetration of a child under 16 years*

4

1

5

9

Armed robbery

1

4

5

10

Arson

4

4

11

Indecent assault

3

1

4

12

Recklessly causing injury

3

3

13

Reckless conduct endangering persons

3

3

14

Culpable driving causing death

3

3

15

Rape

3

3

16

Robbery

2

2

17

Stalking

2

2

18

Aggravated burglary

2

2

19

Assault (common law)

2

2

20

Theft

1

1

21

Theft of a motor vehicle

1

1

22

Unlawful assault

1

1

23

Criminal damage

1

1

24

Unauthorised modification of data to cause impairment

1

1

25

Assault police

1

1

26

Attempted armed robbery

1

1

27

Attempted burglary

1

1

28

Attempted incest (step-parent)

1

1

29

Attempted robbery

1

1

30

Incest (step-parent)

1

1

31

Obtaining financial advantage by deception

1

1

32

Wilful and obscene exposure (common law)

1

1

33

Kidnapping (common law)

1

1

Total

47

102

10

159

Table 7: Number and type of supervision order for indictable offences triable summarily determined in the County Court involving people 21 years or over

Offence

Custodial supervision order

Non-custodial supervision order

Unconditional release

Total

Indecent act with a child under 16

7

4

11

Recklessly causing serious injury

2

6

8

Intentionally causing injury

1

7

8

Reckless conduct endangering life

1

3

1

5

Arson

4

4

Aggravated burglary

3

3

Reckless conduct endangering persons

3

3

Recklessly causing injury

2

2

Robbery

2

2

Stalking

2

2

Assault (common law)

2

2

Indecent assault

1

1

2

Theft of a motor vehicle

1

1

Criminal damage

1

1

Unauthorised modify data

1

1

Assault police

1

1

Attempted robbery

1

1

Obtain financial advantage by deception

1

1

Wilful and obscene exposure (common law)

1

1

Total

4

48

7

59

Table 8: Number and type of supervision order for indictable offences within the Children’s Court’s criminal jurisdiction determined in the County Court involving people under 21 years

Offence

Custodial supervision order

Non-custodial supervision order

Unconditional release

Total

Armed robbery

1

1

2

Intentionally causing serious injury

2

2

Attempted burglary

1

1

Indecent assault

1

1

Indecent act with a child under 16

1

1

Theft

1

1

Recklessly causing injury

1

1

Total

1

8

0

9

CMIA cases involving young people

Source of data and methodology

The Department of Human Services (DHS) provided de-identified information to the Commission to assist it to understand the population of young people who had some involvement in CMIA processes (as currently limited by the law) over the period from 1 July 2012 to 31 October 2013.[4]

The information was initially collated by the Office of Public Prosecutions (OPP), which identified approximately 21 cases where it had been asked to provide advice regarding the jurisdiction of matters involving young people and the CMIA. The information was then added to by DHS, including the addition of four young people known by DHS to be involved in the CMIA, and according to the known previous or current involvement of the 25 young people with its programs.

The dataset therefore concerned 25 young people of whom DHS and the OPP were aware and who had been charged with criminal offences, and where there had been an issue as to their unfitness to stand trial or a defence of mental impairment.

This does not cover all the young people where such issues may have arisen. In some cases, young people charged with a criminal offence may have raised unfitness and police prosecutors may have withdrawn the charges. There may also be cases where young people are charged with criminal offences and appear in the Children’s Court and raise the defence of mental impairment. As the Children’s Court has the power to determine such matters, if the young person was found not guilty because of mental impairment, under the current requirements of the CMIA, it would have had no option but to discharge the young person, which is not recorded as an outcome by the court.

This data does not present a complete picture of the population of young people who have been involved in CMIA proceedings. However, it provides a snapshot of the cohort of young people who have recently raised issues that have brought them under the jurisdiction of the CMIA and due to its current limited application, forced a decision to be made about whether the matter was to be transferred and proceed under the CMIA by way of committal and determination in the County Court.

Raw data

Table 9: Jurisdiction in cases involving young people in the dataset according to issue raised

Issue raised

Jurisdiction

Number

Unfitness (n=13)

Transferred to County Court

12

Information not available

1

Unfitness and mental impairment (n=2)

Transferred to County Court

2

Mental impairment (n=1)

Not transferred

1

Information not available (n=9)

 

Information not available

2

Not transferred

5

Uplifted to County Court

2

Total

 

25

Table 10: Cases involving young people in the dataset according to issue raised and outcome

Issue raised

Outcome

Total

Unfitness (n=13)

Charges dismissed

1

Found fit and guilty plea

1

NCSO imposed[5]

3

Not finalised

2

Guilty plea

3

Transfer back to Children’s Court

1

Found unfit[6]

1

Found unfit and found not guilty

1

Unfitness and mental impairment (n=2)

Charges withdrawn

1

Not finalised

1

Mental impairment (n=1)

Charges dismissed

1

Information not available (n=9)

Charges withdrawn

5

Information not available

3

Non-custodial supervision order[7]

1

Total

 

25

Table 11: Outcome of cases involving young people in the dataset according to jurisdiction

Jurisdiction

Outcome

Number

Not transferred (n=6)

Charges dismissed

1

Charges withdrawn

4

Information not available

1

Transferred to County Court (n=16)

Charges dismissed

1

Charges withdrawn

2

Found fit and guilty plea

1

Non-custodial supervision order[8]

4

Not finalised

2

Plea of guilty

3

Transfer back to Children’s Court

1

Found unfit[9]

1

Found unfit and found not guilty

1

Information not available (n=3)

Information not available

2

Not finalised

1

Total

25


  1. Five cases were excluded as they involved accused who were under 21 years at the time the order was imposed and were therefore included in the cases estimated to have the potential to be heard in the Children’s Court if its jurisdiction under the CMIA were to be extended. These are detailed in this appendix at Table 8.

  2. Two cases that had a principal offence that was indictable triable summarily were determined in the Supreme Court involving the offences of intentionally causing injury and unlawful assault.

  3. This includes the following offences: arson (if the property alleged to be destroyed or damaged does not exceed $100,000), robbery and attempted robbery (if the property alleged to have been stolen is of a value less than $100,000), aggravated burglary (if the offence involves an intent to steal property of value less than $100,000), theft (if either the amount or the value of the property alleged to have been stolen does not exceed $100,000 or the property alleged to have been stolen is a motor vehicle), criminal damage (unless the damage was intended to endanger the life of another), attempted burglary (if the intention was to steal property of a value less than $100,000) and obtaining financial advantage by deception (if the amount or value of the financial advantage alleged to have been obtained does not exceed $100,000).

  4. De-identified data provided by the Department of Human Services, collated by the Office of Public Prosecutions and the Department of Human Services.

  5. There was no information in these three cases in relation to the finding on the issue of unfitness to stand trial or criminal responsibility.

  6. In this case, the young person had been found unfit, declared liable for supervision and the court was awaiting a certificate of available services under section 47 of the CMIA.

  7. There was no information in this case in relation to the finding on the issue of unfitness to stand trial or criminal responsibility.

  8. There was no information in these four cases in relation to the finding on the issue of unfitness to stand trial or criminal responsibility.

  9. In this case, the young person had been found unfit, declared liable for supervision and the court was awaiting a certificate of available services under section 47 of the CMIA.