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

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Protection of the community
2.62 Connected to the principle of least restriction, but also a principle in its own right, is the
principle of protecting the community from the danger that will be posed or may be likely
due to a person’s mental condition. This has been described as the ‘social control’ policy. 64
2.63 This principle is reflected throughout the CMIA by the notion of endangerment.
Endangerment in this context is
about the risk of harm. The gravity of the harm may be relevant to assessing the nature
of the risk, but the probability of any risk, be it high or low, is the critical concept of
endangerment … The ordinary meaning of endangerment entails the concept of chance
or risk. 65
2.64 The concept underpins the CMIA in two different ways:
• Likely endangerment—the need to protect the community from the ‘likely danger’
posed by a person.
• Serious endangerment—the need to protect the community from their safety being
‘seriously endangered’ by the person.
2.65 The terms ‘likely endangerment’ and ‘serious endangerment’ have different meanings
under the CMIA but there is some overlap in application. Assessing the risk of serious
endangerment encompasses both the likelihood of the danger and the gravity of the
possible harm if the danger eventuates. This can be contrasted with assessing the risk of
likelihood of endangerment, which only encompasses how likely it is that any danger may
eventuate, irrespective of the gravity of the possible harm. 66
2.66 A person subject to a supervision order under the CMIA is included in the term
‘community’ in terms of protection from danger, as well as any other specific people or
members of the general community.
2.67 Implicit in the balancing of the competing interests is the requirement that the court
engage in future assessment. 67 The court must try to make an assessment of the current
or future risk of dangerousness posed by a person who is unfit to stand trial or not
guilty because of mental impairment. This task requires the court to embrace notions of
uncertainty and to consider the ‘likelihood of such [future] risk becoming a reality’. 68 The
Commission considers some of the potential issues regarding the approach taken to this
difficult task in Chapter 9.
Rights of victims and family members
2.68 The impact of decisions on victims and the family and carers of the person with a mental
condition is also a significant consideration in the CMIA. This is relevant to the court’s
task of balancing the rights of the accused person with the protection and interests of the
community and ensuring that the victims have an opportunity to exercise their rights to
be heard and be informed in CMIA matters.
64 Victorian Sentencing Committee, above n 8, 413.
65 NOM v DPP & Ors [2012] VSCA 198 (24 August 2012) [58].
66 Ibid [64].
67 See Re LN [1999] VSC 144R (6 May 1999) [6] which describes the task of future assessment as ‘forensic clairvoyance’.
68 Ibid.
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