Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

6
6.53 In the Australian Capital Territory, the Magistrates’ Court can:
• order that the person is detained in custody until the Civil and Administrative Tribunal
otherwise orders
• direct that the person submit to the jurisdiction of the Civil and Administrative
Tribunal which will make a mental health order or recommendations on the orders the
magistrate should make, or
• make any other order. 75
6.54 The options available to the magistrate depend on whether the offence is a ‘serious
offence’ or not. 76
6.55 In South Australia, the Magistrates’ Court may make orders in relation to people who are
found mentally incompetent to commit the offence. 77 The Magistrates’ Court may order
the release of the person unconditionally, make a supervision order involving detention or
make a supervision order releasing the person on licence. 78 Supervision orders are subject
to ‘limiting terms’ equivalent to the period of imprisonment or supervision that would
have been appropriate if the person had been convicted of the offence. 79 The order lapses
at the end of the limiting term. 80
6.56 In Tasmania, the Magistrates’ Court may make a range of orders in relation to these
people including:
• making a continuing care order
• releasing the person and making a community treatment order
• releasing the person on such conditions as the court considers appropriate
• releasing the person unconditionally. 81
6.57 In Western Australia, if the Magistrates’ Court finds an accused person not guilty of an
offence because of unsoundness of mind the court may make an order in respect of
that person. 82 The orders available depend on whether the offence is serious or not, but
generally the court can release the person unconditionally, make a conditional release
order, a community-based order or an intensive supervision order under the Sentencing
Act 1995 (WA), or make a custody order. 83
6.58 In New South Wales, the defence of mental illness does not apply to proceedings for summary
offences in the Local Court. 84 Whether the defence applies in indictable offences triable
summarily is less clear. 85 The Local Court generally deals with accused people with a mental
impairment using its diversionary powers under the Mental Health (Forensic Provisions) Act. 86
6.59 If magistrates have the power to make orders in relation to people found not guilty because
of mental impairment it will be necessary to decide which offences this power should
apply to. It may not make sense, for example, to find a person not guilty because of mental
impairment in relation to a summary offence that lacks a mental element (such as the
offence of ‘disorderly conduct’ in a public place) and subject that person to an order.
75 Crimes Act 1900 (ACT) ss 328 (1), 329(1).
76 A ‘serious offence’ is an offence involving actual or threatened violence punishable by imprisonment for longer than 12 months, or committing
an act endangering life under section 27 of the Crimes Act 1900 (ACT). See Crimes Act 1900 (ACT) s 300.
77 Criminal Law Consolidation Act 1935 (SA). ‘Judge’ is defined to include magistrates in section 269A (which regulates the competence to
commit an offence) and ‘court’ generally refers to a court of summary jurisdiction in section 5.
78 Ibid s 269O(1).
79 Ibid s 269O(2).
80 Ibid s 269O(3).
81 Criminal Justice (Mental Impairment) Act 1999 (Tas) s 21. Only the Supreme Court may make a restriction order or supervision order in relation
to people found not guilty of an offence on the ground of insanity. Section 4 enables Part 3 of the Criminal Justice (Mental Impairment)
Act 1999 (Tas), that deals with orders in relation to accused people found not guilty by reason of insanity, to apply to all courts including
the Magistrates’ Court.
82 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 20.
83 Ibid s 22.
84 New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal
Responsibility and Consequences, Consultation Paper No 6 (2010) 89.
85 Ibid.
86 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 32–3.
127