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
8.36 In a major review of a non-custodial supervision order, the court may confirm the order,
vary the conditions of the order or revoke the order. 29 Unlike the major review of a custodial
supervision order, in a major review of a non-custodial supervision order, the person subject
to the supervision order does not have the advantage of a presumption that the court will
downgrade their order and release them. In that sense, the major review of a non-custodial
supervision order is not very different to a usual review of a supervision order.
8.37 A person subject to a supervision order can appeal a decision to confirm or vary a
supervision order at a major review to the Court of Appeal. 30
Question
70 Are changes required to the provisions for reviewing, varying and revoking
supervision orders to make them more just, effective and consistent with the
principles underlying the CMIA If so, what changes are required
Frequency of reviews
8.38 The CMIA provides judges with the flexibility to decide how often to review, or further
review, a person’s supervision order. 31 The CMIA only specifies the timing of the major
review (being at least three months before the end of the nominal term of the order
and at intervals not exceeding five years after that for the duration of the order). 32 The
Commission’s preliminary research indicates that judges take a range of approaches in
fixing the frequency of reviews. Some judges may conduct annual reviews, while others
set shorter or longer periods.
8.39 The lack of specificity on the frequency of reviews in the CMIA raises the question of
whether the CMIA should be more prescriptive in this area. Some jurisdictions have more
specific provisions on the frequency of reviews. In New South Wales, for example, once
a person is subject to a supervision order, the Mental Health Review Tribunal (the body
that reviews supervision orders in New South Wales) must conduct an initial review of the
order as soon as practicable after the making of the order. 33 The Mental Health Review
Tribunal must generally conduct subsequent reviews every six months. 34 In Queensland, a
review of each forensic patient’s mental condition must occur at least every six months. 35
8.40 Having flexible provisions on the frequency of reviews does, however, allow judges to
set the timing of reviews to best suit the individual case. More frequent reviews are
not necessarily preferable. Review hearings can be traumatic for the person subject to
the supervision order, their family members and victims. Reviews can also be countertherapeutic,
requiring the person subject to the supervision order to relive their offending
and have their behaviour scrutinised. 36
8.41 Further, reviews require substantial resources, including:
• court time
• legal representation for each party involved
• time to provide information to the court on the progress of the person subject to the
supervision order, including the time it takes to prepare reports and give evidence in court.
166
29 Ibid s 35(3)(b).
30 Ibid s 34(1).
31 Ibid ss 27(2), 32(5), 33(2).
32 Ibid s 35(1).
33 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 44, 45.
34 Ibid s 46.
35 Mental Health Act 2000 (Qld) s 200.
36 Ian Freckelton, ‘The Preventive Detention of Insanity Acquitees: A Case Study from Victoria’ in Bernadette McSherry and Patrick Keyzer
(eds) Dangerous People: Policy, Prediction and Practice (Routledge, 2011) 94.