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

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Decision making in the CMIA supervision system
9.11 In this section, the Commission considers the approach to decision making in the CMIA
system of supervision. This includes decisions made by the courts, the Forensic Leave
Panel, experts and people responsible for the supervision and treatment of people subject
to the CMIA.
Principles and matters the court considers
9.12 The CMIA requires that in making, varying or revoking a supervision order or granting or
revoking extended leave, the court must apply the principle that ‘restrictions on a person’s
freedom and personal autonomy should be kept to the minimum consistent with the
safety of the community’. 5
9.13 The court must also have regard to:
• the nature of the person’s mental impairment or other condition or disability
• the relationship between the impairment, condition or disability and the offending
conduct
• whether the person is, or would if released be, likely to endanger themselves, another
person, or other people generally because of their mental impairment
• the need to protect people from such danger
• whether there are adequate resources available for the treatment and support of the
person in the community, and
• any other matters the court thinks relevant. 6
9.14 Reports play an important role in the court’s decision making. The court must obtain
and consider reports from a range of people involved in the supervision of the person
including medical practitioners, psychologists, other people involved in supervising the
person, and from victims and family members who may have submitted a report. 7
9.15 Additionally, in extended leave applications, the court may grant extended leave if it is
satisfied that the safety of the forensic patient or forensic resident, or members of the
public will not be seriously endangered as a result of the forensic patient or forensic
resident’s extended leave. 8 Courts must consider the leave plan filed in support of
applications for extended leave. 9
Application of the principles and matters the court is to consider
9.16 The next section will consider how the court applies sections 39 and 40 of the CMIA and
whether the current criteria and its application is striking the right balance between the
freedom of people subject to supervision orders and the safety of the community.
Presumptions
9.17 In major reviews, there is a presumption that the court must vary a custodial supervision
order to a non-custodial supervision order unless the court is satisfied on the evidence
available that the safety of the person subject to the supervision order or members of the
public will be seriously endangered as a result of reducing the supervision status of the
person. 10 This presumption is advantageous to the person subject to a supervision order.
However, it stands in contrast with the presumption that applies to varying orders when
5 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 39.
6 Ibid s 40.
7 Ibid s 40(2).
8 Ibid s 57(2).
9 Ibid s 40(2)(da).
10 Ibid s 35(3).
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