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.
In addition to the normal range of sentencing options, Part 5 of the Sentencing Act provides additional sentencing options for those with a mental illness. The provisions of Part 5 apply when:
- the person appears to be mentally ill and may require treatment for the illness; and
- the treatment can be obtained by admission to and detention in an approved mental health service; and
- because of the person's mental illness, the person should be admitted and detained for treatment as an involuntary patient for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public.
Part 5 of the Sentencing Act provides for the following orders.
Note: People placed on any of the above orders are involuntary patients. The review and appeal procedures to the MHRB apply, as well as leave and transfer provisions available to involuntary patients. The general rights of patients set out in Chapter 16*4 Psychiatric Disability, also apply.
- Assessment order (s.90 Sentencing Act). Where the court has not received a psychiatrist's report, it may order a person found guilty to be taken to an approved mental health service for no more than 72 hours to enable that person to be assessed for extended hospital orders. The court must receive advice from the authorised psychiatrist of the in-patient service that the service can undertake an assessment. Under the Charter, section 10 (protection from torture and cruel, inhuman or degrading treatment), or sections 21 or 12, it may be possible to argue that a period shorter than 72 hours is reasonable.
- Diagnosis, assessment and treatment order (s.91 Sentencing Act). Where the court has received a psychiatrist's report recommending admission, it may order that a person be admitted and detained as an involuntary patient for no more than three months. At the expiry of the period, or if the authorised psychiatrist, the MHRB or the Chief Psychiatrist discharges the person from involuntary status, the court may make a hospital order (s.93) or pass sentence taking into account the period of detention.
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Restricted involuntary treatment order (RITO) (s.93 Sentencing Act). If a person is found guilty of an offence an RITO may be made if the court is satisfied that the following criteria apply: An RITO cannot exceed two years. If after two years a person continues to require treatment, the provisions of the MHA will apply. If the criteria of section 93A no longer apply, the Chief psychiatrist or the MHRB can discharge a person from an RITO.
- that the person appears to be mentally ill;
- that the person's illness requires treatment and that treatment can be obtained by the person being subject to an RITO; and
- that because of a person's mental illness, treatment is necessary for their health or safety, or the protection of members of the public. The court must receive a report from an authorised psychiatrist from the relevant approved mental health service recommending the order and stating that there are facilities or services available for treatment. In making the order a court is required to take into account a person's current mental condition, their medical, psychiatric and forensic history and their social circumstances.
- Restricted community treatment order (RCTO): An RCTO under section 15A of the MHA provides for release into the community of a person who is subject to an RITO. An RCTO can be made by an authorised psychiatrist or the Chief Psychiatrist if the section 93 criteria apply, and treatment can be obtained by an RCTO. The RCTO remains in place for the duration of the RITO (until it expires or is discharged) or until the RCTO is revoked or discharged. An RCTO must have an attached treatment plan (see: Chapter 16*4 Psychiatric Disability). A person can make an application to the MHRB to have the RCTO revoked or discharged, or to have their treatment plan revised. Sections 15AB to 15D of the MHA require the Chief Psychiatrist to examine the patient to determine whether and when the order is varied, extended or revoked.
- Hospital transfer order (s.16(3) MHA): The Secretary to the Department of Justice may transfer a person who is imprisoned and appears to be mentally ill to an approved mental health service as an involuntary patient (see: "Types of patients", in Chapter 16*4 Psychiatric Disability, for a description of involuntary patients). Similar criteria to those of section 93 of the Sentencing Act must be satisfied before such a transfer can take place. Discharge by the MHRB or the Chief Psychiatrist means the person is transferred back to prison. A person on this type of hospital order cannot be placed on an RCTO.
- Restricted hospital transfer order (s.16(3)(b) MHA): A person may be transferred from prison to hospital on a restricted hospital transfer order. Such people are security patients, and if discharged from hospital by the MHRB or Chief Psychiatrist they must be returned to prison. (See: "Types of patients", in Chapter 16*4 Psychiatric Disability, for a description of security patients.) The public interest and circumstances of the case, including the person's criminal record and psychiatric history, must also be considered.
- Hospital security order (s.93(A) Sentencing Act). If a person is found guilty of an offence, and the court would have imposed a sentence of imprisonment but for the mental illness of a person, a court can impose a hospital security order. The court must be satisfied of the same criteria of section 93 of the Sentencing Act before a order can be made. An order must be for a specified period that does not exceed what would have been the period of imprisonment, and must fix a non-parole period in the normal manner. A person discharged as a security patient before the sentence expires is transferred to prison.
Note: The above orders all entitle patients to a treatment plan. For further information on conditions applying to these orders, including treatment plans, see: "Security patients", in Chapter 16*4 Psychiatric Disability.
Despite the legislative framework and the existence of some specialist forensic mental illness facilities, for people sentenced to imprisonment, it is very difficult to secure a bed and acutely unwell prisoners may remain in the prison system. There are specialist services for imprisoned people with a mental illness at Thomas Embling Hospital. Specialist services are also available for women at the Marmak Unit at the Dame Phyllis Frost Centre, and for men at the St Pauls Unit at Port Phillip Prison and the Acute Assessment Unit at the Melbourne Assessment Prison. Imprisoned people with a mental illness can contact the Inside Access project at the Mental Health Legal Centre for specialist legal advice and assistance.
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 (Part 3 Div.6) provide further sentencing options. Where the court has received:
- a declaration that the person has an intellectual disability under the Disability Act;
- a Justice Plan prepared by DHS; and
- a Sentencing Report prepared by Corrections Victoria,
it can release the offender on an adjournment without conviction or a CBO, on the special condition that the person "participates in the services recommended in the Justice Plan". Through a Justice Plan the person must work with DHS to reduce the likelihood of re-offending. Justice Plans can be organised through the DHS region where the client lives.
A court may also make a Residential Treatment Order. This order can operate for up to five years and requires the person to live in a residential facility and receive treatment. The treatment must be set out in a treatment plan that is approved by the Senior Practitioner (s.152 Disability Act; s.80(2)(b) Sentencing Act 1991).
In very limited circumstances, it may be possible for a person with an intellectual disability to be transferred from prison to a residential institution under the Disability Act as a "security resident". Due to the limited secure facilities within the disability service system these transfers are extremely rare.
A security resident under the Disability Act is a prisoner or detainee with an intellectual disability who has been transferred from a correctional facility to a residential institution under section 166.
Section 166(7) of the Disability Act states that in making of an order the Secretary of the Department of Justice must be satisfied amongst other things, that it is in the best interests of the person, having regard to the risks to the person if detained, appropriateness of residential placement and availability of rehabilitation programs. Before making a security order the Secretary of Department of Justice must have received a statement that the person has an intellectual disability and a treatment plan (s.166(3)).
Section 166(4) provides for an assessment order to establish 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 the treatment plan and security order (s.168).
A forensic resident is a person with an intellectual disability detained under the CMIUTA section 3(1). Reviews and applications for leave for forensic residents are heard by the Forensic Leave Panel and governed by the CMIUTA (see: "Leave" under "Fitness to stand trial and the defence of mental impairment", above).
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SENTENCING :: Last updated: Thu Jul 1st 2010