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
Nature of supervision orders
7.47 If a court declares a person liable to supervision, it must make a supervision order. 36 The
court can make one of the following orders:
• an order committing the person to custody
• an order releasing the person on conditions decided by the court and specified in the
order. 37
7.48 Chapter 9 discusses the principles and matters that the court is required to take into
account in making a supervision order.
7.49 In its preliminary research, the Commission identified a number of possible issues
regarding the nature of supervision orders under the CMIA. In this section, the
Commission describes how supervision orders are currently structured and raises a
number of issues about how this structure operates in practice. These include:
• the method for setting a nominal term
• possible effects of the indefinite nature of supervision orders.
Indefinite nature of the order with a ‘nominal term’
7.50 A supervision order under the CMIA is an indefinite order. 38 This means that the person
can be subject to the order for an indefinite period, possibly for the rest of their life.
7.51 When a court imposes a supervision order, it must then set a ‘nominal term’ in accordance
with the CMIA. A nominal term is the period that specifies when the court is to conduct a
major review of the order and decide whether to decrease the level of supervision.
7.52 The court may also direct that the matter be brought back to the court for review at the
end of a specified period. 39
7.53 These requirements are part of the CMIA’s system for the review of the order (discussed in
Chapter 8 at [8.21]–[8.44]). The purpose of the nominal term is to ensure that the court
reviews the order over this indefinite period. If appropriate, having regard to a range of
principles and factors, the court may reduce the level of supervision with a view to possible
release. This reflects the principle of gradual reintegration and aims to ensure that the period
of detention is referable to the person’s mental condition and risk posed to community safety.
7.54 The Community Development Committee expressed concerns about detention without
any fixed period for review or date for possible release under the Governor’s pleasure
regime. It had particular concerns when periods of detention were longer than what the
person would have served had they been convicted of the offence charged. 40
7.55 To address these concerns, the Community Development Committee recommended that
a ‘limiting term’ be set when a supervision order is imposed that would denote when the
order would lapse. 41 This aimed to provide a safeguard against arbitrary and indefinite
detention of people when they no longer posed a risk to the community. The Community
Development Committee said:
a more structured and rigorous release process will significantly reduce the likelihood of
persons being detained for longer than their condition warrants. However, the only way
to ensure that persons with a mental impairment are not detained for periods which are
significantly disproportionate to those for which sentenced offenders are detained, is to
state a time when that person’s forensic status must end. 42
144
36 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 26(1).
37 Ibid s 26(2).
38 Ibid s 27(1).
39 Ibid s 27(2).
40 Community Development Committee, above n 2, 1.
41 Ibid 66.
42 Ibid 134.