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
Police discretion to charge a person
3.69 Once police have conducted any interviews and investigations, they may decide to charge
a person whom they have questioned or taken into custody. In situations where the police
have decided to charge the accused person, they may either:
• arrest and charge the accused person, or
• send the accused person a summons to appear at court (usually where the offence is
less serious).
3.70 In considering whether to charge a person with an offence, the police may also consider
referring the person to a diversion program, or giving the person a warning.
3.71 A study involving Victoria Police officers found that ‘police officers are necessarily afforded
considerable discretion when resolving encounters with members of the public, including
those who experience mental illness’. 72 Data collected as part of the study indicated that:
Bail and remand
officers might demonstrate leniency when dealing with people experiencing mental illness
who are involved in minor law infractions. These findings might not apply to situations
involving more serious offending. 73
3.72 Once a person is arrested, taken into custody and charged with an offence they must
either be brought before a magistrate within a reasonable time or released on bail. 74
3.73 The Commission identified a number of factors in its report on the Bail Act that may
influence the ability of a person with a cognitive disability to be released on bail including
unstable accommodation, poor decision-making capacity, impulsive behaviour and a lack
of social support. 75
3.74 This observation has also been made in relation to people with an acquired brain injury:
A cycle of disadvantage is perpetuated because their disability contributes to impoverished
circumstances that preclude eligibility for bail. A person may be in remand for extended
periods, particularly if there are delays in going to court. In some cases, people awaiting
trial have been held in custody longer than they would have if an early guilty plea had
been made. 76
3.75 Upon entry into prison on remand (if bail is refused or not applied for), a person may
come into contact with forensic mental health or disability services by way of assessment.
Forensic mental health is a specialised field that provides services for mentally disordered
offenders. Forensic disability is a specialised field that provides services for people with
an intellectual disability or cognitive impairment who come into contact with the criminal
justice system.
3.76 All males who enter the prison system on or after sentence in Victoria are processed
through Melbourne Assessment Prison. Forensic mental health clinicians (Forensicare)
assess each person. Assessments are also made at Melbourne Assessment Prison in
relation to cases heard before the Magistrates’ Court. 77 Forensicare provides a similar
assessment service for women who enter the prison system at Dame Phyllis Frost. 78
44
72 Joel W Godfredson et al, ‘Police Discretion and Encounters with People Experiencing Mental Illness: The Significant Factors’ (2010) 37(12)
Criminal Justice and Behaviour 1392, 1399.
73 Ibid 1401.
74 Crimes Act 1958 s 464A(1).
75 Victorian Law Reform Commission, Review of the Bail Act, Consultation Paper (2005) 103–4.
76 Brown and Kelly, above n 36, 29–30 (citation omitted).
77 Department of Health and Victoria Police, above n 61, 11.
78 Victorian Institute of Forensic Mental Health (Forensicare), Report of Operations 2011–12 (2012) 3. Inside Access, a therapeutic justice
program of the Mental Health Legal Centre, also operates in Melbourne Assessment Prison, Dame Phyllis Frost, Thomas Embling and other
secure hospitals. It provides free legal services and advocacy for imprisoned people.