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

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7 Consequences of findings under the CMIA 136 Introduction 137 The law prior to the CMIA 138 Consequences of findings under the CMIA 139 Process for making orders after a finding under the CMIA 144 Nature of supervision orders 150 Appeals against orders for unconditional release and supervision 151 Ancillary orders and other consequences of findings under the CMIA
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 7. Consequences of findings under the CMIA Introduction 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. 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. 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. 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. 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. 136
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Review of the Crimes (Mental Impair
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Published by the Victorian Law Refo
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2 The CMIA: background and principl
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2 2.6 For the vast majority of peop
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2 2.16 Prior to these reviews, the
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2 Previous reviews of provisions in
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2 Victorian Parliament Law Reform C
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2 criminal law, 44 and is also reco
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2 Protection of the community 2.62
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2 Family members of people subject
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2 2.94 The CMIA’s therapeutic aim
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2 Principles governing the treatmen
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2 Victorian law Mental Health Act 1
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4 Unfitness to stand trial 52 Intro
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4 4.5 As stated in [4.11] below, un
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4 4.16 If an accused person is foun
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4 The test in Victoria: the ‘Pres
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4 Decision-making capacity or effec
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4 Question 3 Should the test for un
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4 or rational appreciation of the p
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4 4.57 However, expressly recognisi
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4 4.65 Some jurisdictions have legi
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4 Difficulty in assessing unfitness
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4 Requirement to ‘plead’ in a c
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4 The role of experts in the proces
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4 4.102 More broadly, some have que
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4 4.113 In DPP v CJC (CJC), 135 Jus
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4 4.121 The Law Reform Committee re
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4 Directions to the jury on finding
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4 4.141 It is unclear why appeals a
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