SENTENCING

Psychiatric disability
Intellectual disability

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.

Psychiatric disability

For people with a mental illness who have been found guilty of a criminal offence, a range of orders can be made before, at the time of, or after sentencing, if the person meets the first three criteria in section 8(1) of the MHA (see: "Criteria for involuntary treatment orders" under "Involuntary patients", in Chapter 16*4 Psychiatric Disability).

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 order. 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, may be invoked to demand 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 discharge the person from involuntary status, the court may make a hospital order (s.93) or pass sentence taking into account the period of detention.
Restricted involuntary treatment order (RITO) (s.93A Sentencing Act): Hospital orders have been repealed and replaced by RITOs. A RITO cannot be made if a person is guilty of a "serious offence", as defined in section 3 of the Sentencing Act. Before making a RITO a court must be satisfied that all criteria in section 93 apply, that is:
1. the person appears to be mentally ill;
2. the person's mental illness requires treatment and that treatment can be obtained by the person being subject to a RITO;
3. because of the person's mental illness, involuntary treatment of the person is necessary for their health or safety (whether to prevent deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public.
The court must receive a report from authorised psychiatrist of the relevant approved mental health service, recommending the RITO and confirming the existence of the service to treat the person's illness. In making a RITO the court is required to consider the person's current mental psychiatric and forensic history and their social circumstances. RITOs can be made for terms of up to two years. If the person requires continuing involuntary treatment the usual processes under the MHA apply. The Chief Psychiatrist or the MHRB can discharge a person from a RITO before then end of the term if the section 93 criteria no longer apply.
Restricted community treatment order (RCTO): An RCTO under section 15A of the MHA provides for release into the community. A person on a RITO can be placed on a RCTO if section 93 criteria apply and the treatment can be provided through a RCTO. The RITO 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. Sections 8 and 12 of the Charter may apply.
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.

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.

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(1)(e) Sentencing Act). By way of sentence, the court may make an order for a specified period where the person is admitted and detained as a security patient. The court must not make a hospital security order unless, but for the mental illness, the person would have been sentenced to imprisonment (s.93(2)). A non-parole period must be set in accordance with the Sentencing Act (s.11). A person discharged as a security patient before the sentence expires is transferred to prison.

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 many acutely unwell prisoners remain in the prison system. Transfer to an assessment unit in prison (only available at Port Phillip Prison) or to Thomas Embling Hospital, may be short term and only until the person's mental health is stablised.

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 (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 set out in a treatment plan that is approved by the Senior Practitioner (s.152 Disability Act; s.80(2)(b) Sentencing Act 1991).

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 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).