4. Synthesis of Matters Pertaining to Part 4 Defendants Acquitted on Account of
Unsoundness of Mind (including Schedule 1)
4.1 This chapter concerns matters considered by the review, pertaining to sections 20-22 of the
CLMID Act, known as Part 4 – Defendants Acquitted on Account of Unsoundness of Mind. It
provides powers to courts of summary jurisdiction and superior courts to make orders with
respect to defendants found not guilty of an offence on account of unsoundness of mind under
section 143 of the Justices Act 1902 or under sections 653 or 693(4) of The Criminal Code. If a
MID is found not guilty of an offence in schedule 1 of the Act on account of unsoundness of
mind, the court must make a custody order. The offences listed in schedule 1 include all degrees
of murder, attempted murder and the generally more serious degrees of bodily harm, assault,
rape, deprivation of liberty, stalking, robbery, arson and criminal damage. There was no
recommendation made by the CLMIDWP or the Stakeholder Committee with respect to part 4,
but a number of submissions made relevant comments.
SCHEDULE 1 OFFENCES
4.2 The review received submissions arguing that schedule 1 should be repealed so that a superior
court has at its discretion all of the options in section 22, including non-custodial orders. A
paper presented to the review by Dr Neil Morgan and Ms Irene Morgan gave the example of a
man charged with assault occasioning bodily harm and found not guilty by reason of
unsoundness of mind. After treatment in an authorized hospital for his mental illness, he was
released on bail and lived in the community for several months without incident. According to
Morgan and Morgan, because of schedule 1 he was then returned in a sound mental state to the
authorized hospital under a custody order, and the MIDRB had to report to the Attorney General
and obtain approval from the Governor for a conditional release order, after which further
reports were necessary to secure his unconditional release. Cases histories of this type are
compelling, and even more so when one considers that schedule 1 applies only to MIDs found
not guilty on account of unsoundness of mind and that a MID who is unfit to stand trial, and who
may have committed an identical offence, could in theory be released unconditionally or more
realistically, under the proposals in this synthesis, be made subject to a structured community
order. While the review is aware from opinions expressed in other submissions that complete
repeal of schedule 1 would be controversial and that some people will see this as contrary to the
public interest, the sense of the review is that schedule 1 no longer makes sense, particularly
given the philosophies espoused in the objects and fundamental principles proposed in chapter 1.
At the very least, schedule 1 warrants critical review because, although all the offences listed are
serious, some are more so than others.
Proposal 4.1
The Way Forward: Schedule 1 Offences
In the controversial area of whether or not custodial orders should be mandatory for serious
offences committed by a MID found not guilty on account of unsoundness of mind, the review
may, in keeping with the proposed new objects of the CLMID Act, recommend repeal of
schedule 1 and repeal of section 21(a).
Alternatively, the review may at least recommend that schedule 1 be reviewed with an aim to
reduce the number of offences listed.
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ORDERS THAT MAY BE MADE BY COURTS
4.3 The review notes that as with MIDs found unfit for trial, a custody order in respect of a MID
found not guilty on account of unsoundness of mind made under subsection 22(1)(c) is openended and, therefore, contrary to the principle that a period of custody should not exceed the
maximum for a defendant without mental impairment. The review has also accepted a
submission arguing for specific inclusion of the youth community based order and intensive
youth supervision order as options of the court for juvenile MIDs.
Proposal 4.2
The Way Forward: Orders that may be Made by Courts
The review may recommend changes to section 22 of part 4 of the CLMID Act, to increase the
range of options for defendants acquitted on account of unsoundness of mind, while also
applying the principle of no custody for offences for which the statutory penalty does not
include imprisonment. These changes are as follows:
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amend subsection 22(1)(b) to include the additional options of a youth community based
order and an intensive youth supervision order; and
amend subsection 22(1)(c) such that a custody order must not be made in respect of a
defendant unless the statutory penalty for the offence is or includes imprisonment and the
judicial officer is satisfied that a custody order is appropriate having regard to – (i) the
nature of the offence and the circumstances of its commission; (ii) the MID’s character,
antecedents, age, health and mental condition; and (iii) the public interest; and
add a new subsection to section 22 stating that the custody order shall be for a term set by
the judicial officer and shall not be for a term longer than the maximum term of
imprisonment provided by the statutory penalty for the offence.
The review may also recommend the addition of a section at the end of part 4 of the CLMID
Act, requiring that a judicial officer, in making a custody order or an order for structured
supervision under this part of the Act with respect to a MID of indigenous background, must
take into account indigenous culture and, having received advice from a person with relevant
knowledge of indigenous culture, may include conditions in any order that pertain to indigenous
practices.
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