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
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.