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

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7 7.97 It is also important that other parties have the right to appeal against these orders under the CMIA to ensure it operates in a way that is consistent with its underlying principles, such as community protection, the principle of least restriction, victims’ rights and interests and gradual reintegration. However, the Commission’s preliminary research suggests that clarity is required around the purposes of these appeal rights and identifying the interests that are represented. The Commission considers this issue in Chapter 9 as part of a holistic examination of the arrangements for representing and considering various interests under the provisions governing supervision and review. 7.98 Research suggests that appeals against findings by people subject to the CMIA are rare (see, for example Chapter 4 at [4.140]). However, appeals against supervision orders may be more frequent. The Commission is seeking to gather data on the number of appeals against orders for unconditional release and supervision orders. Question 67 Are there any barriers to people subject to supervision orders and other parties pursuing appeals against supervision orders Ancillary orders and other consequences of findings under the CMIA 7.99 As discussed in the introduction to this chapter, in the usual criminal process, ancillary orders can be made in addition to a sentence when a person is found guilty of an offence. The ancillary orders that follow can vary depending on the particular type of offence. In some cases, the orders can be made at the court’s discretion and others are mandatory requirements by virtue of legislation. 7.100 A finding under the CMIA does not result in a conviction for an offence. 7.101 A person who is found not guilty because of mental impairment is not deemed criminally responsible for the offence. 7.102 A person found unfit to stand trial but found to have committed the offence is not convicted of the offence. The finding in a special hearing that the accused person committed the offence is a ‘qualified finding of guilt’. It is similar to a finding of guilty in the usual trial process in that the person cannot be prosecuted for the same circumstances 66 and the person has the same appeal rights as if they had been convicted of the offence in a criminal trial. However, unlike a guilty finding in a criminal trial, the finding that the person committed the offence does not provide a legal basis for a conviction to be recorded against the person. 67 7.103 In the usual criminal process, when a person is found guilty of an offence, the court is usually required to record a conviction against the person. When the offence is less serious, the court usually has a discretion to record no conviction. Some ancillary orders can only be made following a conviction, while others can flow after a finding of guilt without a conviction of a person. 7.104 An issue arises as to whether the ancillary orders that can flow in addition to sentencing can also be consequent on a finding under the CMIA. In this section, the Commission briefly examines a number of these orders, by way of example, and seeks input on the operation of ancillary orders under the CMIA. 66 This is called the principle of ‘double jeopardy’. 67 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 18(3). 151
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Orders in addition to sentence 7.105 There are a number of different orders that can be made in addition to a sentence, either by a court or automatically. Restitution, compensation and recovery 7.106 Part 4 of the Sentencing Act provides for a number of orders to be made following a finding of guilt for an offence. These are: • Restitution order—where a person is found guilty or convicted of an offence connected with theft, an order requiring the return of stolen goods or property or money to replace the stolen goods. 68 • Compensation order—where a person is found guilty and convicted of an offence, an order for compensation for: –– pain and suffering to any person who has sustained an injury as a direct result of the offence, 69 or –– property loss sustained to any person who has suffered loss or destruction of, or damage, to property. 70 • Order for recovery of assistance paid under the Victims of Crime Assistance Act 1996—where a person is found guilty of or convicted of particular offences 71 and an award of assistance is made in respect of an injury or death resulting from an offence, an order requiring the offender to pay to the state an amount of money. 72 • Cost recovery order—where a person is found guilty or convicted of an offence relating to contamination of goods and bomb hoaxes, an order requiring the offender to pay to the state an amount to fit the costs incurred by an emergency services agency, such as Victoria Police or the Ambulance Service Victoria. 73 Licence cancellation and disqualification 7.107 Other examples of consequences that can follow conviction and/or sentence for an offence are cancellation of and disqualification from obtaining a driver licence or suspension of a driver licence. 7.108 Section 89 of the Sentencing Act requires a court to cancel a driver licence and disqualify a person from obtaining one for at least 18 months if they are found guilty of various offences arising out of the driving of a motor vehicle by the offender, including: • manslaughter • negligently causing serious injury • culpable driving causing death • dangerous driving causing death or serious injury. 7.109 The Road Safety Act 1986 (Vic) also provides for various categories of automatic and court-ordered licence suspension and disqualification, depending on the type of offence. 152 68 Sentencing Act 1991 (Vic) ss 84–5. 69 Ibid ss 85A–85M. 70 Ibid s 86. 71 Within the meaning of the Victims of Crime Assistance Act 1996 (Vic). 72 Sentencing Act 1991 (Vic) s 87A. 73 Ibid ss 87C–87N.
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Review of the Crimes (Mental Impair
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2 The CMIA: background and principl
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2 2.6 For the vast majority of peop
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2 2.16 Prior to these reviews, the
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2 Previous reviews of provisions in
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2 criminal law, 44 and is also reco
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2 Protection of the community 2.62
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2 Family members of people subject
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2 2.94 The CMIA’s therapeutic aim
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2 Principles governing the treatmen
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2 Victorian law Mental Health Act 1
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4 Unfitness to stand trial 52 Intro
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4 The test in Victoria: the ‘Pres
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4 4.102 More broadly, some have que
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4 4.113 In DPP v CJC (CJC), 135 Jus
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4 4.121 The Law Reform Committee re
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