Sentencing people with 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. These sentencing options should be looked at with reference to the MH Act.
Mentally ill offenders
There are additional sentencing options for people with a mental illness (see Sentencing Act pt 5).
The types of orders available to courts and the circumstances in which orders can be applied have been significantly streamlined by the MH Act.
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Generally, an assessment order is the first step in initiating compulsory mental health treatment. It authorises the compulsory examination of a person to determine whether the person needs compulsory mental health treatment. In sentencing law, there are two types of court assessment orders:
a community court assessment order; and
an inpatient court assessment order (see MH Act s 90).
These are coercive orders that differ in terms of how the assessment is undertaken.
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 (TTO) to be compulsorily treated in the community or taken to, and detained and treated in, a designated mental health service (see MH Act s 45(1)); or
the person satisfies the criteria in relation to the making of a court secure treatment order (CSTO).
An inpatient court assessment order compels a person to be taken to and detained at a designated mental health service. Once there, the person is to be examined by an authorised psychiatrist to determine whether:
the person should be made subject to a TTO (see MH Act s 45); or
the person satisfies the criteria in relation to the making of a CSTO.
The court must be satisfied that:
the person appears to have a mental 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 MH Act s 39(2)).
An inpatient court assessment order comes into force seven days after the day on which the person who is subject to the order arrives at the designated health service (see MH Act s 39(3)).
The aim of a court assessment order is to enable the court to promptly receive a report about the appropriate approach to sentencing 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 impose either a TTO or a CSTO, or proceed to sentence the person.
The court must deduct from the duration of the CSTO or the sentence any period of time that the person was detained under the court assessment order.
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A CSTO (Sentencing Act s 94A) enables the person who is subject to the order to be compulsorily taken to, detained and treated at a designated mental health service.
CSTOs are available when (Sentencing Act s 94B):
the court would have sentenced the person to imprisonment if they did not have a mental illness;
the court has considered the person’s current mental condition, and any medical, mental health and forensic history and social circumstances;
there is no less restrictive means reasonably available to enable the person to receive treatment;
the person has been examined by a psychiatrist and the court is satisfied by the psychiatrist’s report and any other evidence that shows: 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 themself or to another person; and
the court has received a report from the authorised psychiatrist at the designated mental health service in which the person will be detained and treated, that recommends an 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.
A person subject to a CSTO must be taken to a designated mental health service and become a security patient (Sentencing Act s 94C). The order must specify its duration, which must not exceed the period of imprisonment that the person would have received had the order not been made. A non-parole period must be fixed. If a person is discharged as a security patient before the end of the period specified by the CSTO, 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 who is subject to a CSTO may apply to the Mental Health Tribunal to determine whether the criteria set out in section 94B(1)(c) of the Sentencing Act applies to them (MH Act s 272). The people who can apply on behalf of a security patient are set out in section 272(2) of the MH Act. 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 Mental Health Act 1986 (Vic) are subject to transitional provisions (see Sentencing Act ss 94E–94I).
NOTE:
See Chapter 8.4: Mental illness, for the general rights of patients. For further information on conditions applying to these orders, see ‘Security patients’ in Chapter 8.4: Mental illness.
It is often very difficult to secure a bed for a person with mental health issues who has been sentenced to imprisonment. This means that acutely unwell prisoners may remain in the prison system.
In all prisons, mental health care is provided by general practitioners and qualified mental health nurses. Most prisons also have specialist support from visiting psychiatrists. At the Melbourne Assessment Prison and the Dame Phyllis Frost Centre, psychiatrists and qualified mental health nurses provide specialist mental health care to the prisoners. Specialist units at both prisons also provide assessment and treatment for prisoners with serious psychiatric conditions.
Prisoners who require involuntary mental health care are often transferred to the Thomas Embling Hospital under the MH Act.
Imprisoned people with a mental illness can contact VLA or the Mental Health Legal Centre for specialist legal advice and assistance.
Intellectual disability
A 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).
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When a court is considering making a community correction order or releasing an offender on an adjournment (with or without recording a conviction), it may attach a condition to the order that requires the person to participate in services outlined in a justice plan (provided by the Secretary of the Victorian Government Department of Families, Fairness and Housing (DFFH) (Sentencing Act s 80)).
When considering attaching a justice plan condition, the court may request:
a pre-sentence report;
a statement from the Secretary of the DFFH 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 they risk the original sentencing order and justice plan being cancelled, and having alternative sentencing orders imposed.
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A court may make a residential treatment order (RTO) (Sentencing Act 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 DFFH as under section 80 (see above) when considering whether to make the order. A RTO must only be made if the Secretary of the DFFH has deemed the person suitable for admission to a residential treatment facility and that the required services are available
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Forensic Disability Statewide Access Service
The DFFH offers assistance to people with an intellectual disability who are facing legal proceedings.
It also provides support and treatment for people with cognitive impairment involved in the criminal justice system. This is through the Forensic Disability Statewide Access Service.
To be eligible for such assistance a person must have cognitive impairment because of a neurological disability, an acquired brain injury or intellectual disability within the definition of the Disability Act.
Services offered include clinical services, justice coordination, and residential and accommodation services.
Forensic Disability Statewide Access Service (FDSAS)
Tel: 1300 390 709
Email: ForensicDisability.Access@dffh.vic.gov.au
www.services.dffh.vic.gov.au/forensic-disability-servicesMultiple and Complex Needs Initiative
The DFFH also supports the Multiple and Complex Needs Initiative (MACNI) program. The MACNI is a time-limited specialist service for people aged 16 years and older who have multiple and complex needs. This includes people with combinations of:
mental illness;
substance abuse issues;
intellectual impairment;
acquired brain injury; and
forensic issues.
The MACNI’s primary purpose is to facilitate better coordination of supports and services, deliver holistic care and prevent further escalation of need. This is driven by the development and coordination of a MACNI care plan. Participation is voluntary.
Multiple and Complex Needs Initiative (MACNI)
Email: Central.ComplexNeeds@dffh.vic.gov.au
www.providers.dffh.vic.gov.au/complex-needs-services -
In very limited circumstances, a person with an intellectual disability can be transferred from prison to a residential treatment facility or institution under the Disability Act (div 3 s 166(1)) as a ‘security resident’. As there are not many secure facilities within the disability service system, these transfers are extremely rare.
Before making a security order, the Secretary to the Victorian Government Department of Justice and Community Safety (DJCS Secretary) must be satisfied that it is in the best interests of the person and the community, considering the risks to the person if detained, the appropriateness of residential placement, and the availability of rehabilitation programs (s 166(7)). The DJCS Secretary 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 the CMIUT Act may be transferred to a residential treatment facility or residential institution as a forensic resident (s 180). Similar considerations apply to orders under section 166. Reviews and applications for leave for forensic residents are heard by the Forensic Leave Panel and governed by the CMIUT Act (see ‘Leave’, above).
Sentencing people with disability
Chapter: 8.3: Disability and criminal justice
Contributor: Liam McAuliffe, Crown Prosecutor
Current as of: 1 September 2024
Law Handbook Page: 728
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