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

Victorian Law Reform Commission
Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
Orders pending the making of a supervision order
7.23 Once the court declares a person liable to supervision, it may make a number of other
orders before it makes a supervision order. The orders primarily relate to the facilities and
services for supervision and treatment of a person before and during a supervision order.
7.24 During the court processes for determining the questions of unfitness and mental
impairment, a person may be on bail or they may be in custody. In some cases, the
person may be in a prison, or the person may be in custody in an approved mental health
service (for example, Thomas Embling Hospital) or a residential institution or facility (for
example, one operated by the Disability Forensic Assessment and Treatment Service).
7.25 Once the court has declared a person liable to supervision, it can make an order granting
the person bail 10 or remanding them in custody.
7.26 Section 24(1) allows a court to make an order, if in the interests of justice, requiring a
person to undergo an examination by a registered medical practitioner or registered
psychologist and for the results put before the court. 11
Section 47 certificates on availability of facilities and services
7.27 In deciding whether to remand a person declared liable to supervision, the court can
remand the person in custody in an ‘appropriate place’. This means an approved mental
health service, a residential treatment facility or a residential institution. However, before
making this order, the court must first receive a certificate under section 47 of the CMIA
confirming the availability or otherwise of the facilities or services necessary for the
custody of that person (section 47 certificate). 12
7.28 Alternatively, the court can remand the person in custody in a prison. However, the
court cannot remand a person in prison unless there is ‘no practicable alternative in the
circumstances’. 13
7.29 The section 47 certificate requirement also applies when a court makes a supervision
order. The certificate is required before a court can order a custodial supervision order
committing a person to custody in an appropriate place or a non-custodial supervision
order providing for a person to receive services in the community. 14 As with remand, the
court must not commit a person to prison under custodial supervision order unless it is
satisfied that there is no practicable alternative. 15
7.30 The section 47 certificate requirement means that the court’s decisions on bail, remand
and choice of supervision order depend heavily on the availability of facilities and services
to cater for the needs and risks of the person.
7.31 A recent example of how a lack of facilities or services can affect a grant of bail is a case
that was reported in The Age newspaper. In this case, a person who was intellectually
disabled and had early stages of dementia had been held in remand for 371 days prior
to being found unfit to stand trial and not guilty because of a mental impairment.
There had been no application for bail over this period because of a lack of supervised
accommodation. Judge Taft, who presided over the unfitness hearing, made the following
comments regarding the situation:
That a man with a significant intellectual disability and dementia should be imprisoned for
such a time is an embarrassment to the administration of the criminal justice system. 16
140
10 Ibid ss 24(1)(a), 19(1)(a).
11 Ibid s 24(1)(d).
12 Ibid ss 24(1)(b), (2).
13 Ibid ss 24(1)(c), (3).
14 Ibid s 26(3).
15 Ibid s 26(4).
16 Jane Lee, ‘Imprisonment of Intellectually Disabled Man “Embarrassing”’, The Age (Melbourne), 23 February 2013, 5.