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

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Orders under the Sentencing Act 1991 (Vic) in the Magistrates’ Court
6.65 There are currently a number of orders available under the Sentencing Act 1991 (Vic) in
the criminal justice system, other than under the CMIA, for people with a mental illness,
intellectual disability or cognitive impairment. If suitable, these orders could be utilised or
adapted if the Magistrates’ Court’s jurisdiction is extended. The Commission’s preliminary
research indicates that these orders are infrequently imposed.
6.66 Part 5 of the Sentencing Act provides the following orders for a person with a mental
illness, instead of imposing a criminal sentence:
• Assessment order—This is an order detaining the person as an involuntary patient
at a mental health service for up to 72 hours for an assessment to be made of their
suitability for a restricted involuntary treatment order or a hospital security order. 87
• Diagnosis, assessment and treatment order—This is an order detaining the person as
an involuntary patient in an approved mental health service for diagnosis, assessment
and treatment for up to three months. 88
• Restricted involuntary treatment order—This is an order for people found guilty of
an offence other than a serious offence detaining the person in an approved mental
health service as an involuntary patient for up to two years. 89 This order applies to
people who meet the criteria for transfer from the criminal justice system to the
mental health system. 90 The person is then dealt with as a patient under the Mental
Health Act 1986 (Vic) instead of as a prisoner. 91
• Hospital security order—This is an order detaining the person at an approved mental
health service for a period not exceeding the period of imprisonment to which the
person would have been sentenced. 92
6.67 Generally, to qualify for these orders:
• The person must be found guilty at a criminal trial. 93
• The person must appear to have a mental illness that may require treatment that is
obtainable in detention in an approved mental health service. 94
• Involuntary treatment must be necessary for their safety or the protection of
the public. 95
• The authorised psychiatrist of the approved mental health service must certify
that there are facilities and services available for the assessment or treatment of
that person. 96
87 Sentencing Act 1991 (Vic) s 90.
88 Ibid s 91.
89 Ibid s 93.
90 Fox, above n 3, 435.
91 Ibid.
92 Sentencing Act 1991 (Vic) s 93A.
93 Ibid ss 90(1)(a), 91(1)(a), 93(1), 93A(1).
94 Ibid ss 90(1)(b), 91(1)(b), 93(1)(a), 93A(1)(a).
95 Ibid.
96 Ibid ss 90(1)(c), 91(1)(c), 93(1)(b), 93(A)(1)(b).
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