Victorian Numbered Acts Victorian Numbered ActsAfter Part 7B of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert —
In this Part—
"international forensic patient" means a person who—
(a) is not subject to a Secure Treatment Order; and
(b) is detained in a designated mental health service while serving a sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth.
(1) Within 6 months after an international forensic patient has been received at a designated mental health service, the Secretary to the Department of Health must apply to the Supreme Court for a review.
(2) The purpose of the review is to determine the appropriate disposition for the international forensic patient.
(3) The Supreme Court may undertake the review itself or refer the matter to the County Court.
(4) On a review, the court may—
(a) make a supervision order in respect of the international forensic patient as if the international forensic patient had been declared to be liable to supervision under Part 5; or
(b) order the international forensic patient to be released unconditionally.
(5) The court cannot make a supervision order that is more restrictive on the person's freedom and personal autonomy than the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth to which the international forensic patient was subject, unless satisfied that the safety of the international forensic patient or members of the public would be seriously endangered if a more restrictive order is not made.
(6) If the court makes a supervision order, the court must set a nominal term for the order in accordance with section 28 as modified by section 73Q.
(7) If the court makes a custodial supervision order, the court may grant extended leave to the international forensic patient if the court could have granted the international forensic patient extended leave on an application under section 57.
(1) The court must set the nominal term of a supervision order made under section 73P in accordance with section 28 as if—
(a) the offence that led to the person being made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth had been committed in Victoria; and
(b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date of the person's transfer to Victoria.
(2) If the offence referred to in subsection (1) no longer exists at the date referred to in subsection (1)(b)—
(a) the court must determine whether there is an existing offence, as at that date, with which the person could have been charged had it existed at the time of the original charge; and
(b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the date referred to in subsection (1)(b); and
(c) if there is no such offence, the court must set the nominal term as 5 years.
(3) If there never was an equivalent offence in Victoria to the offence that led to the person being made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth, the court must set the nominal term of the supervision order as 5 years.
(4) Despite section 28(4), the nominal term of the supervision order runs from the day on which the person was first made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth.
(5) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73P.
(1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73P(4)(b) if he or she considers that—
(a) the order should not have been made; and
(b) an appeal should be brought in the public interest.
(2) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.
(3) A notice of appeal under subsection (2) must be signed by the Attorney-General personally.
(4) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed.
(5) The Attorney-General must provide a copy of the notice of appeal to the Australian legal practitioner who last represented the respondent in the review under section 73P, if that Australian legal practitioner can reasonably be identified.
(6) On an appeal under subsection (1), the Court of Appeal may—
(a) confirm the order; or
(b) set aside the order and make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or
(c) set aside the order and remit the matter, with or without directions, to the court that made the order for unconditional release.
(7) If the Court of Appeal remits a matter to a court under subsection (6)(c), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal.
(8) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section—
(a) an order granting the person bail;
(b) subject to subsection (9), an order remanding the person in custody in an appropriate place;
(c) subject to subsection (10), an order remanding the person in custody in a prison or any other place;
(d) if it is of the opinion that it is in the interests of justice to do so, an order that—
(i) the person undergo an examination by a registered medical practitioner or registered psychologist; and
(ii) the results of the examination be put before the court that is to make the supervision order;
(e) any other order the court thinks appropriate.
(9) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(10) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
__________________".