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

More documents

Recommendations

Info

7 7.110 An example of an automatic order of this type is for an offence of drink driving. If police issue an infringement notice for an offence of drink driving above a certain blood alcohol concentration level, the person’s licence is automatically cancelled and the person is disqualified from obtaining a new licence for a specified period of between six months and four years. 74 An example of court ordered suspension and disqualification is the power of a court to suspend a person’s licence for any offence under the Road Safety Act. 75 Confiscation and forfeiture 7.111 Another consequence that can follow findings of guilt in the criminal process is orders for confiscation or forfeiture of property used in the commission of offences or owned by the offender. 7.112 Confiscation and forfeiture laws have their roots in long-established concepts in relation to removing the right to hold, inherit or dispose of property (referred to as ‘attainder’) and the confiscation of instruments of crime or damage (referred to as ‘deodand’). 76 The difference between confiscation and forfeiture has been described as follows: ‘forfeiture’ describes the procedure used to take away specific property belonging to an offender or someone else that is ‘tainted’ because it was either used in connection with, or was derived from, the commission of an offence. The term ‘confiscation’ is slightly broader and describes the procedure for taking away any financial benefits gained through criminal activity, through the making of a ‘pecuniary penalty order’. 77 7.113 In Victoria, the Confiscation Act 1997 (Vic) governs the laws for forfeiture and confiscation of property following charges or convictions for Victorian offences. The scheme is primarily conviction based, but depending on the type of offence, the mechanism for confiscation or forfeiture varies. 7.114 The Confiscation Act provides for confiscation through discretionary court ordered forfeiture, automatic forfeiture, discretionary civil forfeiture and discretionary pecuniary penalty orders. By way of summary, the Confiscation Act provides for the following orders: • court-ordered forfeiture—a discretionary court order for forfeiture of tainted property upon conviction of any indictable offence or a specified summary offence 78 • automatic forfeiture—an automatic order for forfeiture of property that has been ‘restrained’ 79 upon conviction of an ‘automatic forfeiture offence’ (primarily serious drug offences involving commercial quantities and serious fraud offences) 80 • civil forfeiture—a discretionary court order for forfeiture of tainted property that has been restrained under the automatic forfeiture provisions upon the court finding that the accused committed a certain offence on the balance of probabilities (no finding of guilt or conviction required) 81 • pecuniary penalty orders—a discretionary court order for a person to pay a sum of money to the Crown equivalent to the proceeds of crime upon conviction or a finding on the balance of probabilities that the person committed an automatic forfeiture offence (no finding of guilt or conviction required). 82 74 Road Safety Act 1986 (Vic) s 89C. 75 Ibid s 28. 76 Arie Freiberg and Richard Fox, ‘Fighting Crime with Forfeiture: Lessons From History’ (2000) 6 Australian Journal of Legal History 1. 77 Nina Hudson, ‘Sentencing, Parole Cancellation and Confiscation Orders’ (Report, Sentencing Advisory Council, November 2009) 35 (citations omitted). 78 Confiscation Act 1997 (Vic) pt 3 div 1. Specified offences are listed in Schedule 1 and include a Schedule 2 offence. 79 This means that a restraining order has been made on the property which prohibits an accused person from disposing of or dealing with the property or any interest in property. 80 Confiscation Act 1997 (Vic) pt 3 div 2. 81 Ibid pt 4. 82 Ibid pt 8. 153
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 7.115 Forfeiture and confiscation orders have the potential to affect people subject to the CMIA. Many of the orders require a conviction of an offence; therefore they may not follow a CMIA finding. However, in some cases a court can make forfeiture orders if it is satisfied that the person committed a particular offence on the balance of probabilities. 7.116 There are potential difficulties with some types of orders for forfeiture and confiscation when applied in the CMIA setting. This is due to the proportionality principle. In general, the court is not to have regard to the confiscation of profits that relate solely to the proceeds of crime when imposing sentence. However, if a person’s lawfully acquired property is forfeited because they used it in the commission of an offence, the court must consider this in sentencing. 83 This is because of the punitive impact that such orders can have on offenders, in addition to the sentence. 84 7.117 The principle of legitimate punishment applies to the CMIA. Therefore, it would not be appropriate for a punitive forfeiture order to be imposed following a finding under the CMIA that a person is not criminally responsible for an offence. Administrative consequences in addition to sentence 7.118 Another type of consequence that can follow in addition to a sentence for a criminal offence is an administrative consequence. Sex offender registration 7.119 One such example is registration on a register of sexual offenders, the Sex Offenders Register. The Sex Offenders Registration Act 2004 (Vic) sets out a scheme for the registration of people who have been found guilty of or sentenced for particular offences. Upon registration, sex offenders are required to comply with various reporting requirements. 7.120 The purpose of the sex offenders registration scheme is ‘to require sex offenders to provide information to the police on a regular basis in order to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of future offences’. 85 7.121 A person becomes a ‘registrable offender’ if a court has, at any time, sentenced the person for a ‘registrable offence’. 86 Registrable offenders are required to comply with the reporting obligations in the Sex Offenders Registration Act. 87 7.122 Whether an offender will be included in the Sex Offenders Register, and subject to the reporting obligations, depends on: • whether they are an adult or a child at the time of committing the offence, and • the type of offence committed. 7.123 All adults who are sentenced for Class 1 or 2 offences—broadly speaking, sexual offences against or involving children 88 —automatically become registered sex offenders. 89 For these offenders, registration is a mandatory, administrative consequence of sentence. There are no exceptions and the court has no discretion regarding registration. 154 83 Sentencing Act 1991 (Vic) s 5(2A)–(2B). 84 Hudson, above n 77, 40. 85 Victorian Law Reform Commission, Sex Offenders Registration, Final Report (2012) x. 86 Sex Offenders Registration Act 2004 (Vic) s 6(1). Note that ‘registrable offender’ and ‘registered offender’ are used interchangeably in the Sex Offenders Registration Act. 87 Ibid pt 3. 88 The age of the child victims to which the offences apply differs from one offence to another. See Victorian Law Reform Commission, Sex Offenders Registration, Information Paper (2011) Appendix A. 89 The Sex Offenders Registration Act 2004 (Vic) requires the retrospective registration of offenders who were subject to a specified sentencing order in respect of a Class 1 or 2 registrable offence immediately before 1 October 2004: see section 3 (definition of ‘existing controlled registrable offender’), and section 6(4). The specified sentencing orders include imprisonment, suspended terms of imprisonment, parole, home detention, drug treatment orders and others.
Page 1 and 2:
Review of the Crimes (Mental Impair
Page 3 and 4:
Published by the Victorian Law Refo
Page 5 and 6:
Victorian Law Reform Commission Rev
Page 7 and 8:
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
xviii
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 30 and 31:
2 The CMIA: background and principl
Page 32 and 33:
2 2.6 For the vast majority of peop
Page 34 and 35:
2 2.16 Prior to these reviews, the
Page 36 and 37:
2 Previous reviews of provisions in
Page 38 and 39:
2 Victorian Parliament Law Reform C
Page 40 and 41:
2 criminal law, 44 and is also reco
Page 42 and 43:
2 Protection of the community 2.62
Page 44 and 45:
2 Family members of people subject
Page 46 and 47:
2 2.94 The CMIA’s therapeutic aim
Page 48 and 49:
2 Principles governing the treatmen
Page 50:
2 Victorian law Mental Health Act 1
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 72 and 73:
4 Unfitness to stand trial 52 Intro
Page 74 and 75:
4 4.5 As stated in [4.11] below, un
Page 76 and 77:
4 4.16 If an accused person is foun
Page 78 and 79:
4 The test in Victoria: the ‘Pres
Page 80 and 81:
4 Decision-making capacity or effec
Page 82 and 83:
4 Question 3 Should the test for un
Page 84 and 85:
4 or rational appreciation of the p
Page 86 and 87:
4 4.57 However, expressly recognisi
Page 88 and 89:
4 4.65 Some jurisdictions have legi
Page 90 and 91:
4 Difficulty in assessing unfitness
Page 92 and 93:
4 Requirement to ‘plead’ in a c
Page 94 and 95:
4 The role of experts in the proces
Page 96 and 97:
4 4.102 More broadly, some have que
Page 98 and 99:
4 4.113 In DPP v CJC (CJC), 135 Jus
Page 100 and 101:
4 4.121 The Law Reform Committee re
Page 102 and 103:
4 Directions to the jury on finding
Page 104:
4 4.141 It is unclear why appeals a
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124: Victorian Law Reform Commission Rev
Page 133 and 134: 112
Page 155 and 156: 134
Page 173: Victorian Law Reform Commission Rev
Page 179 and 180: 158
Page 205 and 206: 184
Page 225 and 226:
Page 227 and 228:
Page 229 and 230:
Page 231 and 232:
Page 233 and 234:
Page 235 and 236:
Page 237 and 238:
Page 239 and 240:
Page 241 and 242:
220
Page 243 and 244:
Page 245 and 246:
Page 247 and 248:
Page 249 and 250:
Page 251:
show all

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

Create successful ePaper yourself

Delete template?

Save as template?