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

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7 7.68 The Community Development Committee also considered arguments against its recommended method of using the period of imprisonment or supervision had the person been convicted. These were: • the process is artificial as sentencing is primarily based on factors that are not appropriate when a person is not criminally responsible for the offence (for example the person’s remorse or the need to deter the person) • the method would require a hypothetical sentencing hearing which would take time and resources. 55 Question 63 Should the method for setting the nominal term be changed If so, how should it be changed Possible effects of the indefinite nature of supervision orders 7.69 In its preliminary research, the Commission has identified a number of possible issues with the current nature of supervision orders under the CMIA. These issues relate to how the indefinite nature of supervision orders affects different people under CMIA, in particular people who are subject to supervision orders, their family members and victims in CMIA matters. 7.70 One issue is whether there are sufficient levels of knowledge and understanding among people involved in CMIA proceedings of the nature of supervision orders and the concept and operation of nominal terms. People involved in CMIA proceedings could include lawyers, accused people and their family members and victims in CMIA matters. 7.71 Another series of issues relates to the impact that the indefinite nature of the regime can have on people who are affected by the CMIA. These include the following matters: • whether the indefinite nature of the regime provides a disincentive for a person to proceed down the CMIA pathway • whether an indefinite supervision order impedes a person’s recovery and progress under a supervision order • what effect indefinite supervision orders have on victims and their family members in matters under the CMIA. 7.72 Previous reviews of the Governor’s pleasure regime have flagged issues on these matters. However, there is little information about how the nature of supervision orders in the current system under the CMIA affects people who are subject to the regime. Knowledge and understanding of the nature of supervision orders and operation of nominal terms 7.73 The Commission’s preliminary research indicates that there may be confusion around the indefinite length of supervision orders and the meaning of nominal terms. For example, a nominal term does not denote the length of the order or the release date for the person subject to the order. 7.74 It is important that lawyers understand the meaning and implications of supervision orders under the CMIA so that they may provide accurate legal advice on the decision to proceed down the CMIA pathway. This is particularly so when the person faces a potentially onerous and indefinite supervision regime. 55 Ibid 133. 147
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 7.75 It is also important that victims have an accurate understanding of the nature of supervision orders and nominal terms and the implications that these will have on the length of time a person may be subject to supervision under the CMIA. The guide Prosecuting Mental Impairment Matters 56 released by the Office of Public Prosecutions discussed at [2.75]–[2.76] is a useful tool to assist victims and other people who are involved in the process, such as family members of the person subject to the CMIA, to understand the processes and become aware of their rights. 7.76 It is also important that the community has an accurate understanding of the nature of the regime that follows the making of a supervision order under the CMIA, including the indefinite nature of the orders and the meaning of a nominal term. The media play a key role in the level of community knowledge and perceptions of the consequences under supervision orders. Question 64 What steps should be undertaken for people involved in CMIA proceedings to better understand the expression ‘nominal term’ The indefinite supervision order as a disincentive 7.77 In its report on Mental Malfunction and Criminal Responsibility, the Law Reform Commission of Victoria recognised that indefinite supervision orders with no limiting term operated as a disincentive for people to raise the insanity defence. 57 7.78 The Commission’s preliminary research suggests that the indefinite nature of the regime can influence the decisions that accused persons make. 7.79 A person charged with an offence has a number of choices. They can choose to plead guilty or not guilty to the charge. If at the time of the charged offence the person had a mental impairment, they could choose to plead guilty and raise the defence of mental impairment. They may receive advice from their lawyer on the likely consequences of each choice. 7.80 The lawyer should provide advice on the likely sentence and non-parole period the person might expect to receive if they plead guilty or a jury finds them guilty. If the person is facing a sentence of imprisonment, they will have advice on the likely period of time that they may be in prison and know that there will be a fixed date for their release at the end of the sentence. 58 7.81 The lawyer should also advise them of the likely consequences of a finding of not guilty because of mental impairment. This advice will explain that the accused person could be subject to an indefinite supervision order with a nominal term set for a major review of the order. Depending on the offence, the nominal term could be half or all of the period of the maximum penalty for that offence. 7.82 For example, if the offence was intentionally causing serious injury, the nominal term under the CMIA is set at 25 years. Under the usual criminal process, the highest imprisonment length imposed in the higher courts for that offence for the four-year period from 2006–07 to 2010–11 was 15 years. The majority of people sentenced in that period received lengths of imprisonment from two years to less than six years (72.6 per cent). 59 148 56 Office of Public Prosecutions, Prosecuting Mental Impairment Matters (2012). 57 Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Report No 34 (1990). 58 Unless they are eligible to be detained for a further period at the completion of their sentence under legislation, see, eg, the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). 59 Dennis Byles, ‘Sentencing Trends in the Higher Courts of Victoria 2006–07 to 2010–11 (Causing Serious Injury Intentionally)’ (Sentencing Snapshot No 125, Sentencing Advisory Council, June 2012) 4.
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2 The CMIA: background and principl
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2 2.94 The CMIA’s therapeutic aim
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