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

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7.6 First, this chapter discusses the orders that a court can make in respect of a person after
a finding under the CMIA. The Commission raises a number of issues regarding the
operation of the processes for making such orders and the nature of the orders available.
7.7 Secondly, the chapter discusses ancillary orders that follow a finding of guilt, conviction
or sentence in the usual criminal process. It identifies and describes some of the ancillary
orders under different legislation in Victoria. This chapter asks for input on whether such
consquences should apply to matters under the CMIA.
The law prior to the CMIA
7.8 Under the Governor’s pleasure regime, people found either unfit to plead or not guilty on
the ground of insanity were detained in custody indefinitely until the Governor decided
they could be released.
7.9 A court was required to order that the person be kept in strict custody until the
‘Governor’s pleasure’ was known in ‘such a place and in such a manner as to the court
seems fit’. The Governor could order that the person be kept in ‘safe custody’ in the place
specified by the court or direct that some other place could be designated. 1
7.10 The Governor could, at any time, order that the person subject to a Governor’s pleasure
order be released. The Governor could impose any conditions on the release, including
that a community corrections officer supervise the person. 2 In practice, before the
Governor released a person the Adult Parole Board had to review the person and make
a recommendation to the Attorney-General. The Attorney-General, Cabinet and the
Premier had to each agree to the recommendation prior to the Governor authorising the
release of the person. 3
7.11 Under the Governor’s pleasure regime, an alternative to indefinite detention was also
available. Section 420(2) of the Crimes Act 1958 (Vic) allowed the court to ‘make any
orders it sees fit to enable that the person receive services under the Mental Health Act
1986 (Vic) or the Intellectually Disabled Persons’ Services Act 1986 (Vic)’. The Victorian
Sentencing Committee in its review of sentencing in Victoria in 1998, interpreted this
provision as allowing:
the court hearing the trial of a person who is found insane to make some form of order
to enable that person to receive treatment where he or she is mentally ill, or services
available through Community Services Victoria [now Health and Community Services]
where he or she is intellectually disabled. 4
7.12 However, when the Victorian Parliamentary Community Development Committee
reviewed the Governor’s pleasure regime in 1995, it expressed uncertainty about how
these orders worked in practice. 5 Thus, it is not clear whether such orders were ever used
as alternatives to detention at the Governor’s pleasure.
1 Crimes Act 1958 (Vic) ss 393, 420. These sections have since been repealed.
2 Community Development Committee, Parliament of Victoria, Inquiry into Persons Detained at the Governor’s Pleasure (1995) 31.
3 This process is discussed in more detail in Chapter 8.
4 Victorian Sentencing Committee, Sentencing – Report of the Victorian Sentencing Committee, Volume 2 (1988) 435.
5 Community Development Committee, above n 2, 30.
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