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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Law (Mentally Impaired Accused)
Amendment Bill 2014
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Section 3 amended 2
5. Section 16 amended 2
6. Section 19 amended 3
7. Part 3 Division 4 inserted 3
Division 4 -- Custody orders
20A. Making of custody orders 3
20B. Limiting terms of custody orders 4
8. Section 21 amended 4
9. Section 22 amended 4
10. Section 23A inserted 5
23A. Limiting terms of custody orders 5
11. Section 24 amended 5
12. Section 35 amended 6
13. Section 37 amended 6
14. Section 38 amended 6
15. Section 39 amended 7
16. Part 8 inserted 7
Part 8 -- Transitional provisions for Criminal Law
(Mentally Impaired Accused) Amendment
Act 2014
51. Terms used 7
52. Application of this Part 8
53. Application to court by Attorney General 8
54. Registrar to fix hearing and notify parties 8
65--1 page i
Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
Contents
55. Court to fix limiting term 9
56. Court to hear and determine limiting term
proceedings without undue delay 10
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(Introduced by Mr John Quigley, MLA)
Criminal Law (Mentally Impaired Accused)
Amendment Bill 2014
A Bill for
An Act to amend the Criminal Law (Mentally Impaired Accused)
Act 1996 to provide that a court making a custody order under that
Act in respect of an accused must fix a term for that order that is
equivalent to the period of imprisonment that would, in the court's
opinion, have been appropriate had the accused been found guilty of
the offence with which the accused was charged.
The Parliament of Western Australia enacts as follows:
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 1
1 1. Short title
2 This is the Criminal Law (Mentally Impaired Accused)
3 Amendment Act 2014.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on a day fixed by proclamation,
9 and different days may be fixed for different provisions.
10 3. Act amended
11 This Act amends the Criminal Law (Mentally Impaired
12 Accused) Act 1996.
13 4. Section 3 amended
14 In section 3 insert in alphabetical order:
15
16 limiting term --
17 (a) in relation to a custody order made under
18 Part 3 -- has the meaning given in
19 section 20B(1)(a);
20 (b) in relation to a custody order made under
21 Part 4 -- has the meaning given in
22 section 23A(1)(a);
23 release order has the meaning given in section 35;
24
25 5. Section 16 amended
26 (1) In section 16(5)(b) delete "subsection (6)," and insert:
27
28 Division 4,
29
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 6
1 (2) Delete section 16(6) and (7).
2 6. Section 19 amended
3 (1) In section 19(4)(b) delete "subsection (5)," and insert:
4
5 Division 4,
6
7 (2) Delete section 19(5) and (6).
8 7. Part 3 Division 4 inserted
9 At the end of Part 3 insert:
10
11 Division 4 -- Custody orders
12 20A. Making of custody orders
13 (1) A custody order must not be made under this Part in
14 respect of an accused unless the statutory penalty for
15 the alleged offence is or includes imprisonment and the
16 court is satisfied that a custody order is appropriate
17 having regard to --
18 (a) the strength of the evidence against the
19 accused; and
20 (b) the nature of the alleged offence and the alleged
21 circumstances of its commission; and
22 (c) the accused's character, antecedents, age,
23 health and mental condition; and
24 (d) the public interest.
25 (2) The court may require a prosecutor to provide copies of
26 documents relevant to the factors to be considered
27 under subsection (1).
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 8
1 20B. Limiting terms of custody orders
2 (1) If a court makes a custody order under this Part in
3 respect of an accused, the court must --
4 (a) fix a term (a limiting term) equivalent to the
5 period of imprisonment that would, in the
6 court's opinion, have been appropriate had the
7 accused been found guilty of the offence with
8 which the accused was charged; and
9 (b) specify the limiting term in the order.
10 (2) The custody order lapses at the end of the limiting
11 term.
12
13 8. Section 21 amended
14 In section 21(a) delete "must" and insert:
15
16 must, subject to section 23A,
17
18 9. Section 22 amended
19 (1) In section 22(1)(c) before "make a custody" insert:
20
21 subject to section 23A,
22
23 (2) In section 22(3)(b) delete "must" and insert:
24
25 must, subject to section 23A,
26
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 10
1 10. Section 23A inserted
2 At the end of Part 4 insert:
3
4 23A. Limiting terms of custody orders
5 (1) If a court makes a custody order under this Part in
6 respect of an accused, the court must --
7 (a) fix a term (a limiting term) equivalent to the
8 period of imprisonment that would, in the
9 court's opinion, have been appropriate had the
10 accused been found guilty of the offence with
11 which the accused was charged; and
12 (b) specify the limiting term in the order.
13 (2) The custody order lapses at the end of the limiting
14 term.
15
16 11. Section 24 amended
17 In section 24(1) delete "until released by an order of the
18 Governor." and insert:
19
20 until --
21 (a) the custody order lapses; or
22 (b) the accused is sooner released under a release
23 order.
24
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 12
1 12. Section 35 amended
2 (1) Delete section 35(1) and insert:
3
4 (1) The Governor may at any time make an order (a
5 release order) that a mentally impaired accused be
6 released.
7
8 (2) In section 35(3)(a) delete "indefinitely or for a set period
9 determined by the Governor; and" and insert:
10
11 until the end of the limiting term or any shorter period specified
12 in the order; and
13
14 13. Section 37 amended
15 Delete section 37(3).
16 14. Section 38 amended
17 Delete section 38(2)(a) and (b) and insert:
18
19 (a) when the custody order lapses; or
20 (b) if the accused is sooner released --
21 (i) unconditionally under a release order --
22 when released; or
23 (ii) on conditions under a release order --
24 when the conditions cease to apply.
25
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 15
1 15. Section 39 amended
2 In section 39 delete "released on conditions" and insert:
3
4 released from detention under a custody order, whether on the
5 lapsing of the custody order or under a release order,
6
7 16. Part 8 inserted
8 After section 50 insert:
9
10 Part 8 -- Transitional provisions for Criminal
11 Law (Mentally Impaired Accused) Amendment
12 Act 2014
13 51. Terms used
14 In this Part, unless the contrary intention appears --
15 commencement day means the day on which the
16 Criminal Law (Mentally Impaired Accused)
17 Amendment Act 2014, other than sections 1 and 2,
18 comes into operation;
19 limiting term proceedings, in relation to a custody
20 order, means proceedings under this Part in which the
21 court fixes a limiting term in relation to the custody
22 order;
23 party, to limiting term proceedings, means --
24 (a) the prosecutor; or
25 (b) the accused;
26 prosecutor, in relation to limiting term proceedings,
27 means --
28 (a) if the custody order was made by the Supreme
29 Court, the District Court or the Children's
30 Court exercising jurisdiction under the
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 16
1 Children's Court of Western Australia Act 1988
2 section 19B(4) -- the authorised officer (as
3 defined in the Criminal Procedure Act 2004
4 section 80) who commenced the prosecution in
5 which the custody order was made, or another
6 such authorised officer; or
7 (b) if the custody order was made by a court of
8 summary jurisdiction -- the person referred to
9 in the Criminal Procedure Act 2004
10 section 20(3) who commenced the prosecution
11 in which the custody order was made, or
12 another such person.
13 52. Application of this Part
14 This Part applies if --
15 (a) before the commencement day a custody order
16 was made in respect of an accused; and
17 (b) immediately before the commencement day the
18 accused had not been discharged from the
19 custody order.
20 53. Application to court by Attorney General
21 (1) The Attorney General must, within 28 days after the
22 commencement day, apply on behalf of the prosecutor
23 to the court that made the custody order for the court to
24 hear and determine limiting term proceedings in
25 relation to the custody order.
26 (2) The application must be made in accordance with rules
27 of court.
28 54. Registrar to fix hearing and notify parties
29 (1) If an application is made under section 53, a registrar
30 of the court must give to each party to the limiting term
31 proceedings --
32 (a) a notice in writing that specifies the date, time
33 and place of the hearing of the proceedings; and
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 16
1 (b) a copy of the application.
2 (2) If a party is given notice under subsection (1)(a) but
3 does not attend the hearing, the court may, as it thinks
4 fit --
5 (a) proceed with the hearing; or
6 (b) adjourn the hearing.
7 55. Court to fix limiting term
8 (1) On hearing the limiting term proceedings, the court
9 must fix a term (a limiting term) equivalent to the
10 period of imprisonment that would, in the court's
11 opinion, have been appropriate had the accused been
12 found guilty of the offence with which the accused was
13 charged.
14 (2) The limiting term is taken to have been fixed when the
15 custody order was originally made.
16 (3) Subject to subsection (4) --
17 (a) the custody order lapses at the end of the
18 limiting term; and
19 (b) Part 5 applies as if the limiting term had been
20 fixed under Part 3 or 4.
21 (4) If the accused has been subject to the custody order for
22 a period equal to or longer than the limiting term, the
23 court must make an order discharging the accused from
24 the custody order.
25 (5) Nothing in this section gives rise to, or can be taken
26 into account in, any civil cause of action, and, without
27 limiting this section, nothing in this section operates to
28 create in the accused legal rights not in existence
29 before the commencement day.
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Criminal Law (Mentally Impaired Accused) Amendment Bill 2014
s. 16
1 56. Court to hear and determine limiting term
2 proceedings without undue delay
3 A court to which an application is made under
4 section 53 must hear and determine the limiting term
5 proceedings without undue delay.
6
7
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