Appeal expands non-custodial supervision options for people found unfit to be tried

Appeal expands non-custodial supervision options for people found unfit to be tried

Monday, 10 July 2017

We have run a successful appeal against an indefinite custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) 1997 (CMIA), significantly advancing the law in relation to how the courts deal with people who are found unfit to be tried.

Instructing lawyer on the appeal, senior civil lawyer Sarah Westwood, said that the Court of Appeal decision has opened up the possibility for more suitable non-custodial supervision orders.

'It means the courts can potentially make more flexible, more personally appropriate orders for clients with mental impairments and disabilities.’ 

Senior civil lawyer Sarah Westwood

Mr ‘Richards’ (not his real name) had been found unfit to be tried for historical offences, but for a variety of reasons neither the Department of Health and Human Services nor Forensicare could identify any services or treatment options that would assist his condition.

He is an elderly man with multiple physical and mental ailments, including a probable intellectual impairment.

Despite his being a low risk to the community, the sentencing judge had concluded that because treatment options were not able to be identified, there was no ‘supervisor’ available for him in the community.

The judge therefore concluded that the only option available was an indefinite custodial supervision order in prison – with a nominal review period of 20 years.

Victoria Legal Aid Chief Counsel Tim Marsh, who appeared as lead counsel on the appeal, said the only reason this error came to light was because our lawyers came across Mr Richards' name while they were researching another case involving similar issues.

‘By this stage he had been held unlawfully for almost two years. It was alarming that such a serious error had been made at all, but we were astonished to see that no appeal had been sought from the decision.

‘Our lawyers set about locating the man, explaining the significance of his situation, and taking instructions for an appeal,’ Mr Marsh said.

On appeal the Crown conceded the error in interpretation of the CMIA.

Orders made by a bench of three judges, including the President of the Court of Appeal Justice Maxwell, have enabled Mr Richards to return to his specialist residential aged-care facility.

‘Their decision makes it clear that non-custodial supervision orders do not depend on the client receiving services from the Department of Health and Human Services or Forensicare,’ Mr Marsh said.

Read the case summary

For more information read the Case summary – Richards (a Pseudonym) v The Queen (No 2) [2017] VCSA 174