Sentencing

 

A person with a mental illness or intellectual disability who has been found guilty of an offence can be sentenced to any of the usual range of penalties. Additional sentencing options are available under the Sentencing Act. These sentencing options should be looked at with reference to the MHA 2014.

Mentally ill offenders

Part 5 of the Sentencing Act provides additional sentencing options for people with a mental illness. This part of the Sentencing Act was significantly altered by the commencement of the MHA 2014. There has been a streamlining of the types of orders available to courts and the circumstances in which they arise.

The first of the new sentencing orders are referred to as Court Assessment Orders. There are two types of Court Assessment Orders: Community Court Assessment Orders and Inpatient Court Assessment Orders (see s 90). These are coercive orders that differ in how the assessment is undertaken.

Court Assessment Orders

A Community Court Assessment Order compels a person to be examined by an authorised psychiatrist to determine whether:

the person should be made subject to a Temporary Treatment Order to be compulsorily treated in the community or taken to, and detained and treated in, a designated mental health service (see s 45(1) MHA 2014); and

the person satisfies the criteria in relation to the making of a Court Secure Treatment Order.

An Inpatient Court Assessment Order compels a person to be taken to and detained at a designated mental health service, and examined there by an authorised psychiatrist to determine whether:

the person should be made subject to a Temporary Treatment Order (see s 45 MHA 2014); and

the person satisfies the criteria in relation to the making of a Court Secure Treatment Order.

In order for the court to make a Court Assessment Order, the court has to be satisfied of a number of criteria. These are:

the person appears to have a mentall illness;

because the person appears to have a mental illness the person appears to need immediate treatment to prevent:

serious deterioration in the person’s mental or physical health; or

serious harm to themselves or another person; and

if the person is made subject to a Court Assessment Order, they can be assessed; and

there is no less restrictive means reasonably available to enable the person to be assessed.

A Community Court Assessment order comes into force when the order is made, and remains in force for seven days (see s 39(2) MHA 2014). An Inpatient Court Assessment Order comes into force seven days after the day on which the person who is subject to the order is received at the designated health service (see s 39(3) MHA 2014).

The aim of the Court Assessment Order is to enable the court to promptly receive a report as to the appropriate approach to sentencing of the person concerned.

After the court has considered a report made by an authorised psychiatrist, having examined the person subject to a Court Assessment order, the court can either impose a Temporary Treatment Order or a Court Secure Treatment Order, or proceed to sentence the person. The court must deduct from the duration of the Court Secure Treatment Order or the sentence any period of time that the person was detained under the Court Assessment Order.

Court Secure Treatment Order

The court also has the ability proceed to order a Court Secure Treatment Order (s 94A Sentencing Act). This enables the person who is subject to it to be compulsorily taken to, and detained and treated, at a designated mental health service.

Court Secure Treatment Orders are available when:

the court would have sentenced the person to a term of imprisonment if they did not have a mental illness; and

the court has considered the person’s current mental condition, any medical, mental health and forensic history and social circumstances; and

the person has been examined by a psychiatrist and the court is satisfied by the production of the psychiatrist’s report and any other evidence that show:

the person has mental illness; and

because the person has mental illness, the person needs treatment to prevent serious deterioration in their mental or physical health or serious harm to the person or to another person; and

the court has received a report from the authorised psychiatrist of the designated mental health service that proposes the person be detained and treated, that recommends that Order be made, and that states that there are facilities and services available at the designated mental health service for the detention and treatment of the person.

The effect of a Court Secure Treatment Order is that the person subject to the order must be taken to a designated mental health service, and become a security patient. A Court Secure Treatment Order must specify the duration of the order, which must not exceed the period of imprisonment which the person would have received had the order not been made. A non-parole period must also be fixed.

If a person is discharged as a security patient before the end of the period specified by the Court Secure Treatment Order, that Court Secure Treatment Order has effect as a sentence of imprisonment; the unexpired portion of the period must be served in a prison or other place of confinement, unless the person is released on parole.

A person subject to a Court Secure Treatment Order may apply to the Mental Health Tribunal to conduct a hearing to determine whether the criteria set out in section 94B(1)(c) of the Sentencing Act currently apply to the patient. Those people who can apply on behalf of a security patient are set out at section 272(2) of the MHA 2014. If the Mental Health Tribunal discharges a person as a security patient, the unexpired portion process described above applies.

Sentencing orders made with reference to the repealed MHA 1986 are subject to transitional provisions (see ss 94E–94I Sentencing Act).

The above orders represent significant alteration to those that existed under the MHA 1986. What role the Charter Act plays – for example, section 10 (protection from torture and cruel, inhuman or degrading treatment), section 21 (right to liberty and security of person) or section 12 (right to freedom of movement) – will be a matter of careful assessment upon receipt of any relevant reports and other circumstances relevant to the particular person.


NOTE

The general rights of patients set out in Mental illness, also apply. For further information on conditions applying to these orders, seeSecurity patients” in Mental illness.


Despite the legislative framework and the existence of some specialist forensic mental illness facilities, it is often very difficult to secure a bed for a person with mental health issues that has been sentenced to a term of imprisonment; acutely unwell prisoners may remain in the prison system.

General practitioners and qualified mental health nurses provide mental health care at all prisons, with specialist support from visiting psychiatrists at most locations. Psychiatrists and qualified mental health nurses provide specialist mental health care to male prisoners at Melbourne Assessment Prison and to female prisoners at the Dame Phyllis Frost Centre. Specialist units at both centres also provide assessment and treatment for prisoners with serious psychiatric conditions.

Prisoners who require involuntary mental health care are transferred to Thomas Embling Hospital under the MHA 2014.

Imprisoned people with a mental illness can contact Victoria Legal Aid for specialist legal advice and assistance (for contacts, see Legal services that can help).

Intellectual disability

The court is entitled to sentence an intellectually disabled offender to any of the usual range of penalties. In addition, provisions contained in the Sentencing Act (pt 3BA div 2 ss 80–83) provide further sentencing options, such as a Justice Plan Condition (s 80), or a Residential Treatment Order (s 82AA).

Where a court is considering making a community correction order or releasing the offender on an adjournment (with or without recording a conviction) it may attach a condition to the order, requiring the person to participate in services specified in a “justice plan” (provided by the Secretary to the Department of Human Services (DHS) (s 80)).

When considering attaching a justice plan condition, the court may request a pre-sentence report; a statement from the DHS Secretary that the person has an intellectual disability under the Disability Act; and a plan of available services designed to reduce the likelihood of the person re-offending. The condition may apply for up to two years or the period of the sentence – whichever is shorter.

The offender must comply with the justice plan or risk the original sentencing order and justice plan being cancelled, and other sentencing orders imposed.

A court may also make a Residential Treatment Order (RTO) (s 82AA). This order can operate for up to five years and requires the person to live in a residential facility and receive treatment. The court may request similar information from the DHS as under section 80. A RTO must only be made if the DHS Secretary has deemed the person suitable for admission to a residential treatment facility and that the required services are available.

Transfer from prison to a residential institution

In very limited circumstances, it may be possible for a person with an intellectual disability to be transferred from prison to a residential treatment facility or institution under the Disability Act as a “security resident” (div 3 s 166(1)). Due to the limited secure facilities within the disability service system these transfers are extremely rare.

Before making a “security order” the Secretary of the Department of Justice must be satisfied that it is in the best interests of the person and the community – having regard to the risks to the person if detained, the appropriateness of residential placement, and the availability of rehabilitation programs (s 166(7)). The Secretary of Department of Justice must also have received a statement that the person has an intellectual disability and a treatment plan (s 166(3)).

Section 166(4) provides for an interim order to assess whether the person has an intellectual disability.

An Authorised Program Officer must, at regular intervals of not more than 12 months, apply to the Victorian Civil and Administrative Tribunal for a review of the treatment plan and security order (s 168).

A person with an intellectual disability detained in prison under CMIUTA may also be transferred to a residential treatment facility or residential institution as a forensic resident (s 180). Similar considerations apply as to orders under section 166. Reviews and applications for leave for forensic residents are heard by the Forensic Leave Panel and governed by CMIUTA (seeLeave” under “Fitness to stand trial and the defence of mental impairment”).