Psychiatric Probation Orders

Last Updated: 03 May 2012

List of subheadings:

Psychiatric Probation Orders: ss 20BV-20BX
-Where a Psychiatric Probation Order may be Made
-What a Psychiatric Probation Order Must Specify
-Breach of a Psychiatric Probation Order
-Enforcement of a Psychiatric Probation Order
-Right of Appeal

Commentary on Psychiatric Probation Orders: ss 20BV-20BX

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).

Where a court is sentencing a person suffering from an intellectual disability the court may make a Program Probation Order pursuant to s 20BY. See federal commentary: Program Probation Orders.

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where a psychiatric probation order may be made

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]

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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).

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breach of a psychiatric probation order

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).

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enforcement of a psychiatric probation order

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).

Note: State or Territory law regarding enforcement or recovery of a fine imposed on an offender applies to a pecuniary penalty imposed under s 20BX(1)(a): s 20BX(4). See also s 15A.

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right of appeal

Where a person who has been released under s 20BV is dealt with under s 20BX(1), the person has rights of appeal: s 20BX(3).

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Footnotes

[1] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [10.218].