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

Appendix G: Recommended factors to guide decision making in supervision, review, release and leave decisions

The following factors should be applied by the higher courts, Magistrates’ Court, Children’s Court and the Forensic Leave Panel in decision making. In addition, the Commission has recommended a number of statutory principles that should inform the powers and functions exercised under the CMIA (Recommendation 3) and principles specific to young people (Recommendation 4). The principle of least restriction in section 39 of the CMIA should also apply to these decisions, including decisions of the Forensic Leave Panel (Recommendation 3).

Matters to which higher courts are to have regard

Declaring a person liable to supervision or ordering an unconditional release

In deciding whether to declare the person liable to supervision or to unconditionally release the person, the court must have regard to whether the person poses an unacceptable risk of causing physical or psychological harm to another person or other people generally.

Section 40(2) also applies to this decision.

Making, varying or revoking a supervision order

In deciding whether or not to make, vary or revoke an order under Parts 3, 4 or 5, the court must have regard to:

• the nature of the person’s mental impairment or other condition or disability

• the relationship between the impairment, condition or disability and the offending conduct

• whether the person would if released pose an unacceptable risk of causing physical or psychological harm to another person or other people generally because of his or her mental impairment

• the need to protect people from such a risk

• the supervised person’s recovery or progress in terms of treatment progression and personal improvement

• whether there are adequate resources available for treatment, support or services in the community

• any other matters the court thinks relevant.

For the purpose of considering whether a less restrictive order is more appropriate, the court must have regard to whether the person is receiving treatment or services under a civil order under the Mental Health Act 2014 (Vic) or the Disability Act 2006 (Vic), and the conditions of any such order.

Granting extended leave

In deciding whether or not to grant extended leave to a person or to revoke a grant of extended leave the court must have regard to:

• the nature of the person’s mental impairment or other condition or disability

• the relationship between the impairment, condition or disability and the offending conduct

• whether the person would if granted extended leave or if extended leave continued pose an unacceptable risk of causing physical or psychological harm to another person or other people generally because of his or her mental impairment

• the need to protect people from such a risk

• the supervised person’s recovery or progress in terms of treatment progression and personal improvement

• whether there are adequate resources available for treatment, support or services in the community

• any on-ground or off-ground leave the person has been granted and their compliance with the conditions of their leave

• any other matters the court thinks relevant.

For the purpose of considering whether a less restrictive order is more appropriate, the court must have regard to whether the person is receiving treatment or services under a civil order under the Mental Health Act 2014 (Vic) or the Disability Act 2006 (Vic), and the conditions of any such order.

Matters to which the Forensic Leave Panel is to have regard

In determining whether or not to grant an application for leave or variation of leave, the Panel must:

• have regard primarily to the person’s current mental condition or pattern of behaviour

• consider the person’s clinical history and social circumstances

• the supervised person’s recovery or progress in terms of treatment progression and personal improvement

• have regard to any on-ground or off-ground leave the person has been granted and their compliance with the conditions of their leave

• have regard to the applicant profile provided under section 54A and the leave plan or statement provided under section 54B.

Consideration of whether the person is an ‘unacceptable risk’ is provided in various other provisions in the CMIA.

Matters to which the Children’s Court is to have regard

Presumption in favour of diversion and community treatment and support

In matters in the Children’s Court involving young people where unfitness or the defence of mental impairment is raised, there are presumptions in favour of:

• diverting the young person from the criminal justice system, and

• the young person’s treatment and support taking place in the community.

Discharging an accused

At any time during the course of proceedings, after the President or magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the President or magistrate may discharge the accused with or without conditions if they consider:

• that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and

• the accused is receiving treatment, support or services in the community.

Declaring a person liable to supervision or ordering an unconditional release

In deciding whether to declare a young person liable to supervision or to unconditionally release the young person, a young person is to be unconditionally released unless the court is satisfied that they pose an unacceptable risk of causing physical or psychological harm to another person or other people generally.

Making, varying or revoking a supervision order

In considering whether to act on an assessment order or to make, vary or revoke a therapeutic supervision order, the Children’s Court must have regard to:

• the nature of the young person’s mental impairment, other condition or disability

• the relationship between the impairment, condition or disability and the offending conduct

• whether the young person would if released pose an unacceptable risk of causing physical or psychological harm to another person or other people generally because of his or her mental impairment

• the need to protect people from such a risk

• the young person’s recovery or progress in terms of treatment progression and personal improvement

• whether there are adequate resources available for treatment, support or services in the community (or custody)

• any other matters the court thinks relevant.

For the purpose of considering whether a less restrictive order is more appropriate, the court must have regard to whether the person is receiving treatment or services under a civil order under the Mental Health Act 2014 (Vic) or the Disability Act 2006 (Vic), and the conditions of any such order.

Matters to which the Magistrates’ Court is to have regard

Discharging an accused

At any time during the course of proceedings in the summary stream (or where summary jurisdiction has been granted), after the magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the magistrate may discharge the accused with or without conditions if the magistrate considers:

• that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and

• the accused is receiving treatment, support or services in the community.

Declaring a person liable to supervision or ordering an unconditional release

In deciding whether to declare the person liable to supervision or to unconditionally release the person, the Magistrates’ Court must have regard to whether the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally.

Section 40(2) also applies to this decision.

Making, varying or revoking a supervision order

In deciding whether or not to make, vary or revoke an order the court must have regard to:

• the nature of the person’s mental impairment or other condition or disability;

• the relationship between the impairment, condition or disability and the offending conduct;

• whether the person would if released pose an unacceptable risk of causing physical or psychological harm to another person or other people generally because of his or her mental impairment;

• the need to protect people from such a risk;

• the supervised person’s recovery or progress in terms of treatment progression and personal improvement;

• whether there are adequate resources available for treatment, support or services in the community;

• any other matters the court thinks relevant.

For the purpose of considering whether a less restrictive order is more appropriate, the court must have regard to whether the person is receiving treatment or services under a civil order under the Mental Health Act 2014 (Vic) or the Disability Act 2006 (Vic), and the conditions of any such order.