Victorian Consolidated Legislation

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - SECT 40

Matters to which the court is to have regard

40. Matters to which the court is to have regard



(1) In deciding whether or not to make, vary or revoke an order under Part 3,
4 or 5 in relation to a person, to grant extended leave to a person or to
revoke a grant of extended leave, the court must have regard to-

   (a)  the nature of the person's mental impairment or other condition or
        disability; and

   (b)  the relationship between the impairment, condition or disability and
        the offending conduct; and

   (c)  whether the person is, or would if released be, likely to endanger
        themselves, another person, or other people generally because of his
        or her mental impairment; and

   (d)  the need to protect people from such danger; and

   (e)  whether there are adequate resources available for the treatment and
        support of the person in the community; and

   (f)  any other matters the court thinks relevant.



(2) The court cannot order a person to be released unconditionally or
otherwise release a person from custody under Part 3, 4 or 5, or significantly
reduce the degree of supervision to which a person is subject, unless it-

   (a)  has obtained and considered the report of at least one registered
        medical practitioner or registered psychologist, who has personally
        examined the person, on-

   (i)  the person's mental condition; and

   (ii) the possible effect of the proposed order on the person's behaviour;
        and

   (ab) in the case of a person who is subject to a supervision order, has
        obtained and considered the report of a person having the supervision
        of the person subject to the order; and

   (b)  has considered the report submitted to the court under section 41(1)
        or (3) (as the case may be); and

   (c)  is satisfied that the person's family members and the victims of the
        offence with which the person was charged (if any), have been given
        reasonable notice of the hearing at which the release or reduction is
        proposed to be ordered; and

   (d)  has considered any report of the family members or victims made under
        section 42; and

   (da) in the case of an application for extended leave-has considered the
        leave plan filed under section 57A; and

   (e)  has obtained and considered any other reports the court considers
        necessary.

(3) Subsection (2)(c) does not apply if section 38C provides that notice is
not to be given, or need not be given, to a family member or victim.

(4) The court cannot make a further grant of extended leave for a person who
is on extended leave at the time of the application unless the court has
obtained and considered-

   (a)  the report of at least one registered medical practitioner or
        registered psychologist, who has personally examined the person, on-

   (i)  the person's mental condition; and

   (ii) the possible effect of the proposed further grant on the person's
        behaviour; and

   (b)  the leave plan filed under section 57A.