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
2.56 The principle is also linked to the broad notion of proportionate punishment, which
underpins fundamental common law sentencing principles in Victoria, such as
proportionality and totality. 53 The primary purpose of proportionality is that ‘the
punishment imposed on offenders by way of sentence is just and fair, is not arbitrary in
its application and respects the basic human rights of those who are sentenced’. 54 By
extension, it would not be fair to punish a person who is not criminally responsible for an
offence because of a mental impairment.
Least restrictive alternative
2.57 The CMIA explicitly states that the general principle to be applied by the court is that
‘restrictions on a person’s freedom and personal autonomy should be kept to the
minimum consistent with the safety of the community’. 55 This principle applies to
decisions by the court to make, vary or revoke a supervision order, to remand a person in
custody and to grant a person extended leave.
2.58 The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) provides
that a human right may only be limited where it is ‘reasonable, necessary, justified and
proportionate’. 56 This means any decision to limit human rights must take into account
all relevant factors including any less restrictive means reasonably available to achieve the
overall purpose of the limitation. 57 This principle is also underpinned by internationally
recognised human rights to liberty and security of the person, 58 and the right to humane
treatment when deprived of liberty. 59
2.59 When a court makes a supervision order with respect to a person under the CMIA, the
principle of least restriction aims to ensure ‘the interests of the safety of the community
with the appropriate minimum restriction upon the freedom and autonomy of the
reviewee’. 60 An example of this is the requirement under the CMIA that a person is not to
be detained in prison unless there is no practicable alternative. 61
2.60 The CMIA also allows the court to intervene in situations where a person subject to
the CMIA is likely to cause harm to themselves. Section 40(1) of the CMIA requires
the court to have regard to ‘the nature of the person’s mental impairment or other
condition or disability’ and whether, ‘the person is, or would if released be, likely to
endanger themselves, another person, or other people generally’ and ‘the need to protect
people from such danger’. 62 In these cases, the decision to limit a person’s freedom
and autonomy by placing them on a supervision order is consistent with the Charter
requirement that it be ‘reasonable, necessary, justified and proportionate’ to prevent
serious harm or death.
2.61 The principle of least restriction is also reflected in the CMIA in a number of safeguards
against arbitrary detention. For example, the court must set a ‘nominal term’ when
imposing a supervision order. A nominal term specifies the period of time that can elapse
before a court must conduct a major review of the order. 63
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53 Totality and proportionality are separate but related principles that share the same purpose of ensuring that the punishment imposed on an
offender is just, fair and proportionate to the offending behaviour for which they are criminally responsible.
54 Nina Hudson, ‘Sentencing, Parole Cancellation and Confiscation Orders’ (Report, Sentencing Advisory Council, November 2009) 8.
55 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 39.
56 Victorian Equal Opportunity and Human Rights Commission, Talking Rights: 2010 Report on the Operation of the Charter of Human Rights
and Responsibilities, Report (2011).
57 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2)(e).
58 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 3;
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March
1976) art 9(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22. For example, the CMIA requires a person not be detained
in prison unless there is no other practical alternative in the circumstances.
59 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 3;
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March
1976) art 10(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22.
60 Re DGC [2000] VSC 284 (7 July 2000) [29].
61 This principle applies pending investigations into fitness to plead (s 10(3)), pending the making of a supervision order (s 19(3)), making
orders pending the making of a supervision order (s 24(3)) and making a supervision order (s 26(4)).
62 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 40(1)(a),(c)–(d).
63 Ibid ss 28, 35.