List of Subheadings
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The Crimes Act 1914 (Cth) makes available to the court alternatives in lieu of passing sentence when dealing with a person suffering from a mental illness. These options include:
- a Hospital Order under s 20BS; (see federal commentary: Hospital Orders) or
- a Psychiatric Probation Order under s 20BV (see below)
Under s 20BV(1), the court may make an order that a person convicted of a federal offence reside at, or attend, a specified hospital in order to receive psychiatric treatment. This is known as a Psychiatric Probation Order.
To make a Psychiatric Probation Order the court must be satisfied that the person is suffering from a mental illness within the meaning of the civil law of that State or Territory: s 20BV(1)(a).
The court may, without passing sentence, make a psychiatric probation order where:
- the person is convicted in a State or Territory of a federal offence: s 20BV(1);
and the court is satisfied that:
- the person is suffering from a mental illness within the meaning of the civil law of that State or Territory: s 20BV(1)(a); and
- the illness contributed to the commission of the offence by the person: s 20BV(1)(b); and
- appropriate psychiatric treatment for the person is available in a hospital or other place in that State or Territory: s 20BV(1)(c); and
- the person consents to the order being made: s 20BV(1)(d).
The court must not make an order unless the person, or their legal guardian, consents to the proposed treatment: s 20BV(2).
Note: A Psychiatric Probation Order is made without passing sentence on the person. No other sentence may be imposed on the offender in relation to the same offence. 1
3. What a psychiatric probation order must specify
The psychiatric probation order must specify that the person reside at, or attend:
- a specified hospital for the purpose of receiving that psychiatric treatment: s 20BV(1).
The treatment to be undertaken by the person may be varied on application: s 20BV(4).
A psychiatric probation order is subject to the following conditions:
- for a specified period not exceeding 2 years, the person will be subject to the supervision, and obey all instructions of, an appointed probation officer: s 20BV(3)(a); and
- for a specified period not exceeding 5 years, the person will be of good behaviour: s20BV(3)(b).
Where a psychiatric probation order has been made and information is laid before a magistrate, before or after the end of the period in s 20BV(3), alleging the person has without reasonable excuse failed to comply, the magistrate may:
- issue a summons directing the person to appear before the court by which the order was made: s 20BW(1)(a), or
- if the information is given on oath and the magistrate is of the opinion that the summons might not be effective – issue an arrest warrant: s 20BW(1)(b).
Where a person fails to comply with a summons or bail conditions, the court may issue an arrest warrant: s 20BW(2).
An arrest warrant authorises the detention of the person in custody until the person is released by order of the court: s 20BW(3).
Where a person has been arrested under a warrant and the court is not sitting, a magistrate may:
- remand the person on bail on appropriate recognizance: s 20BW(4)(a); or
- direct that the person be kept in custody: s 20BW(4)(b).
Where the court, in which the psychiatric probation order was made, is satisfied that a person has, without reasonable excuse, failed to comply with a condition of the order, the court may:
- without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person: s 20BX(1)(a); or
- discharge the order and make an order under s 20 (see Conditional Release After Conviction); s 20BX(1)(b); or
- revoke the order and deal with the person for the offence in respect of which the order was made: s 20BX(1)(c); or
- take no action: s 20BX(1)(d).
In determining what action to take, the court must, in addition to any other matters, take into account:
- the fact that the order was made: s 20BX(2)(a); and
- anything done under the order: s 20BX(2)(b); and
- any other order made in respect of the offence: s 20BX(2)(c).
- R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [10.218]. ↩