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
Arresting people subject to a supervision order who breach a supervision order by
leaving Victoria
8.120 People on non-custodial supervision orders may travel out of Victoria if they have the
permission of their supervisor. 122 However, where a person on a non-custodial supervision
order leaves Victoria without permission, they fail to comply with the supervision order
and can be arrested. 123 The supervisor, the Secretary to the Department of Health or the
Secretary to the Department of Human Services may apply for a warrant to arrest the
person subject to the non-custodial supervision order. 124
8.121 The supervisor, the Secretary to the Department of Health or the Secretary to the
Department of Human Services may also apply for a warrant of arrest if a person is absent
without leave while on a custodial supervision order. 125
Application to vary an order following non-compliance with a non-custodial
supervision order
8.122 If it appears that a person subject to a non-custodial supervision order has failed to
comply with it, the supervisor, the Secretary to the Department of Health or the Secretary
to the Department of Human Services may apply to the court for a variation of the
non-custodial supervision order. These parties may make an application to the court:
• following an emergency apprehension 126
• after a person is arrested under a warrant 127 , or
• if it otherwise appears that the person has not complied with the order. 128
8.123 If an application is not made within 48 hours of the emergency apprehension or the
person’s arrest, the person must be released. 129
8.124 The court may order a warrant for the arrest of a person subject to a non-custodial
supervision order if they fail to attend the hearing (in situations where the person is not
already in detention). 130
8.125 At the hearing, if the court is satisfied that the person on the non-custodial supervision
order has failed to comply with conditions of the order, the court may confirm the order,
vary the conditions of the order or vary the order to a custodial supervision order. 131
Lack of clarity in dealing with non-compliance of non-custodial supervision orders
8.126 A person can fail to comply with a non-custodial supervision order for various reasons,
for example, by missing appointments with the treating team, refusing to participate in
programs or using illicit drugs (where this is in breach of a condition of the non-custodial
supervision order). 132
8.127 When Forensicare is supervising a person subject to a non-custodial supervision order
and there is a concern that the person is breaching the conditions of their non-custodial
supervision order, the area mental health service providing treatment to the person must
contact the authorised psychiatrist of Forensicare immediately. 133 Forensicare and the area
mental health service will then both decide how to deal with the issue. 134
180
122 Department of Human Services, above n 39, 35.
123 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 30A.
124 Ibid s 30A(1).
125 Ibid s 30B.
126 Ibid s 30(4).
127 Ibid s 30A(4).
128 Ibid s 29(1).
129 Ibid ss 30(4), 30A(4).
130 Ibid s 29(3).
131 Ibid s 29(4).
132 Department of Human Services, above n 39, 28.
133 Ibid.
134 Ibid.