43ZWhen supervision orders are made

43Z When supervision orders are made The court must make a supervision order under this Division in respect of a person if: (a) the court declares under section 43I(2)(a), 43X(2)(a) or (3) or 43XB(a) that the person is liable to supervision; or (b) the Court of Criminal Appeal remits a matter to the court under section 412A(3) for the making of a supervision order in respect of the person. 43ZA Nature of supervision orders (1) A supervision order may, subject to the conditions the court considers appropriate and specifies in the order: (a) if it is a custodial supervision order – commit the accused person to custody: (i) subject to subsection (2) – in a custodial correctional facility; or (ii) subject to subsection (3) – in another place (an appropriate place) the court considers appropriate; or (b) if it is a non-custodial supervision order – release the accused (2) The court must not make a custodial supervision order committing the accused person to custody in a custodial correctional facility unless it is satisfied that there is no practicable alternative given the circumstances of the person. (2A) Without limiting subsection (1), the court may decide a supervision order is subject to the condition that a person (an authorised person) authorised by the CEO (Health) may use any reasonable force and assistance: (a) to enforce the order; and (b) without limiting paragraph (a) – to take the accused person into custody, or to restrain the accused person, in order to prevent the accused person harming himself or herself or someone else. Criminal Code Act 1983 69 (2B) The CEO (Health): (a) must, by Gazette notice, make supervision directions about: (i) the qualifications of an authorised person; and (ii) the reporting by an authorised person of any use of force or assistance for subsection (2A); and (b) may, in the supervision directions, provide for any other matters about the use of such force and assistance as decided by the CEO (Health). (2C) An authorised person may use reasonable force or assistance as provided in subsection (2A) only in accordance with the supervision directions. (3) Unless the court receives a certificate from the CEO (Health) mentioned in subsection (4), the court must not make a supervision order: (a) committing the accused person to custody in an appropriate place; or (b) providing for the accused person to receive treatment or other services in, at or from an appropriate place. (4) The certificate of the CEO (Health) must state: (a) facilities or services are available in the appropriate place for the custody, care or treatment of the accused person; and (b) if the appropriate place is a secure care facility – the accused person fulfils the criteria for involuntary treatment and care under the Disability Services Act 1993. 43ZB Appeals against supervision orders (1) A supervision order (including a supervision order varied under section 43ZD or 43ZE) is subject to the same rights of appeal as a sentence. (2) In addition to appeals referred to in subsection (1), the CEO (Health) may appeal to the Court of Criminal Appeal against a supervision order if he or she considers that: (a) a different supervision order should have been made; and (b) an appeal should be brought in the public interest. Criminal Code Act 1983 70 (3) On an appeal under subsection (2), the Court of Criminal Appeal may confirm the supervision order or quash the supervision order and make another supervision order in substitution for it. 43ZC Term of supervision order Subject to sections 43ZD, 43ZE and 43ZG, a supervision order is for an indefinite term. 43ZD Variation or revocation of supervision order (1) Any of the following persons may apply to the court for an order varying or revoking a supervision order: (a) the Director of Public Prosecutions; (b) the supervised person; (c) a person having the custody, care, control or supervision of the supervised person; (d) any other person who has an interest that the court recognises as proper for the purposes of making the application. (2) A person who makes an application under subsection (1) must give notice of the application at least 14 days before the hearing of the application to: (a) the Director of Public Prosecutions; and (b) the supervised person; and (c) the next of kin (if any) of the supervised person; and (d) a person having the custody, care, control or supervision of the supervised person. (3) If, on an application to vary or revoke a supervision order by the supervised person, the court refuses the application, the supervised person must not make another application within 12 months after the date of the court's refusal or any other period (which may be lesser or greater) the court fixes. (3A) The court may adjourn the hearing for the application if the court (3B) If the court adjourns the hearing under subsection (3A), the court may make interim orders for the supervised person (including, for example, an order that the supervised person be remanded in custody in a custodial correctional facility or another place the court Criminal Code Act 1983 71 considers appropriate). (3C) The court must not make an interim order under subsection (3B) (3D) To avoid doubt: (a) the making of an interim order under subsection (3B) does not revoke the supervision order; and continues to have effect while an interim order under subsection (3B) is in force. (4) On hearing the application, the court may: (a) confirm the supervision order the subject of the application; or (b) if the application is for an order revoking the supervision order: (i) revoke the supervision order and release the supervised person unconditionally; or (ii) vary the conditions of the supervision order; or (c) if the application is for an order varying the supervision order: (i) vary the conditions of the supervision order; (ii) where the supervision order is a non-custodial supervision order – vary the supervision order to a custodial supervision order; or (iii) where the supervision order is a custodial supervision order – vary the supervision order to a non-custodial supervision order. 43ZE Urgent variation of non-custodial supervision order (1) If it appears to the Director of Public Prosecutions that a supervised person who is subject to a non-custodial supervision order is not complying or is not likely to comply with the supervision order and, because of that, the supervision order should be varied urgently, the Director of Public Prosecutions may make an urgent application to the court for an order varying the supervision order. Criminal Code Act 1983 72 (2) In making an application under subsection (1): (a) the Director of Public Prosecutions may give notice of the application to one or more of the persons specified in section 43ZD(2) and the notice he or she gives may be less than the 14 days required under that subsection; and (b) the Director of Public Prosecutions may make the application orally by telephone or in writing by facsimile or any other available electronic means of communication. (3) If the supervised person fails to appear at the hearing of the application, the court must issue a warrant for the apprehension and arrest of the supervised person. (3A) The court may adjourn the hearing for the application if the court (3B) If the court adjourns the hearing under subsection (3A), the court may make interim orders for the supervised person (including, for example an order that the supervised person be remanded in custody in a custodial correctional facility or another place the court considers appropriate). (3C) The court must not make an interim order under subsection (3B) (3D) To avoid doubt: (a) the making of an interim order under subsection (3B) does not revoke the supervision order; and continues to have effect while an interim order under subsection (3B) is in force. (4) On hearing the application, the court may: (a) confirm the non-custodial supervision order; or (b) vary the conditions of the non-custodial supervision order; or (c) vary the non-custodial supervision order to a custodial supervision order and impose the conditions on the custodial supervision order that the court considers appropriate. Criminal Code Act 1983 73 (5) If the court makes an order under subsection (4)(c) varying the supervision order to a custodial supervision order: (a) unless the term fixed under section 43ZG in respect of the supervision order has expired, that period continues to apply in respect of the custodial supervision order; or (b) if the term referred to in paragraph (a) has expired – the court must fix the term it considers appropriate during which the supervision order as varied is to be in force and specify the term in the supervision order (and section 43ZG applies to and in relation to the supervision order as varied as if that term were a term fixed under section 43ZG(1)). 43ZF Emergency power of apprehension (1) If a member of the Police Force suspects on reasonable grounds (a) a supervised person is failing or has failed to comply with the supervision order to which he or she is subject (including a supervision order that has just been varied); (b) the safety of a supervised person is at risk unless the supervised person is apprehended; or (c) the safety of the public is at risk if a supervised person is not apprehended, the member may apprehend the supervised person. (2) A supervised person who is apprehended under subsection (1) must be detained: (a) if the supervised person is subject to a custodial supervision order – in the place where he or she is committed to custody under the supervision order; or (b) if the supervised person is subject to a non-custodial supervision order – in an appropriate place (which would, if there is no practicable alternative in the circumstances, be a custodial correctional facility or a police station). (3) If a supervised person who is apprehended under subsection (1) is subject to a non-custodial supervision order, an application for an order varying the non-custodial supervision order is to be made to the court under section 43ZD or 43ZE. Criminal Code Act 1983 74 43ZG Major review of supervision orders (1) When the court makes a supervision order, the court must fix a term in accordance with subsection (2), (3) or (4) that is appropriate for the offence concerned and specify the term in the order. (2) Subject to subsections (3) and (4), the term fixed under subsection (1) is to be equivalent to the period of imprisonment or supervision (or aggregate period of imprisonment and supervision) that would, in the court's opinion, have been the appropriate sentence to impose on the supervised person if he or she had been found guilty of the offence charged. (3) If: (a) the offence charged carries a mandatory penalty of life imprisonment; or (b) the court is of the view that life imprisonment would have been an appropriate penalty for the offence charged; the court must fix the period it would have set as the non-parole period for the offence under the Sentencing Act 1995 if the supervised person had been found guilty of the offence charged as the term under subsection (1). (4) If the supervised person was charged with the commission of multiple offences, the court must fix the term under subsection (1) by reference to the offence carrying the longest maximum period of imprisonment. (4A) A reference in subsection (2) to a period of supervision is a reference to a period of custody or any other form of supervision of a person under a court order (including, for example, a home detention order) on the court finding the person guilty of an offence. (4B) The court may decide the term fixed under subsection (1) is taken to have commenced from a specified time that was: (a) before the making of the supervision order; and (b) at or after the time the supervised person was first taken into custody for an offence because of which the court may make the supervision order. (5) At least 3 months (but not more than 6 months) before the expiry of the term fixed under subsection (1) in respect of a supervision order, the court must conduct a review to determine whether to release the supervised person the subject of the supervision order from it. Criminal Code Act 1983 75 (5A) The court may adjourn the proceedings for the review to a time that is after the expiry of the term fixed under subsection (1) if the court (5B) If the court adjourns the proceedings under subsection (5A): (a) the court may make interim orders for the supervised person (including, for example, an order that the supervised person be remanded in custody in a custodial correctional facility or another place the court considers appropriate); and continues to have effect until the completion of the review. (5C) The court must not make an interim order under subsection (5B)(a) (6) On completing the review under subsection (5), unless the court considers that the safety of the supervised person or the public will or is likely to be seriously at risk if the supervised person is released, the court must release the supervised person (7) If the court considers that the safety of the supervised person or the public will or is likely to be seriously at risk if the supervised person is released unconditionally, the court must: (a) confirm the supervision order; or (b) vary the conditions of the supervision order (including, if the supervision order is a custodial supervision order, the place of custody where the supervised person is detained); or (c) if the supervision order is a non-custodial order – vary the supervision order to a custodial supervision order and impose the conditions on the order that the court considers appropriate; or (d) if the supervision order is a custodial order – vary the supervision order to a non-custodial order and impose the conditions on the order that the court considers appropriate. Criminal Code Act 1983 76 43ZH Periodic review of supervision orders (1) After considering a report submitted by an appropriate person under section 43ZK, if the court considers it is appropriate, the court may conduct a review to determine whether the supervised person the subject of the report may be released from the supervision order. (2) On completing the review of a custodial supervision order, the court must: (a) vary the supervision order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order; or (b) if the court is satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order: (i) confirm the order; or (ii) vary the conditions of the order, including the place of custody where the supervised person is detained. (3) On completing the review of a non-custodial supervision order, the court may: (a) confirm the order; (b) vary the conditions of the order; (c) vary the supervision order to a custodial supervision order and impose the conditions on the order the court considers appropriate; or (d) revoke the order and release the supervised person 43ZI Right of persons to appear at hearings under this Division (1) Subject to subsection (2), a person who is or is likely to be the subject of a supervision order has a right to appear before the court at a hearing of an application for an order making, varying or revoking the supervision order or of a review of the supervision order under this Division. Criminal Code Act 1983 77 (2) If the person who is or is likely to be the subject of the supervision order does not appear before the court, the court must satisfy itself (a) the person has been informed of his or her right to appear but has elected not to appear; or (b) appearing before the court would be detrimental to the person's health. (3) Subsection (2) does not apply to the hearing of an urgent application for an order varying a non-custodial supervision order under section 43ZE. (4) The Director of Public Prosecutions may appear before the court at a hearing referred to in subsection (1). (4A) In addition, the CEO (Health) is entitled to appear at a hearing of an application for an order varying or revoking the supervision order, or of a review of the supervision order, for a person who is in custody in an appropriate place mentioned in section 43ZA(1)(a)(ii), including, for example, a resident of a secure care facility under the Disability Services Act 1993. (5) Also, the court may give leave to a person who it considers has a proper interest in the matter the subject of a hearing mentioned in subsection (1) to appear before the court at the hearing. (6) A person who is entitled to appear before the court under this section is a party to the matter in which he or she appears and is entitled to be legally represented. 43ZJ Court to receive report on condition of accused persons declared liable to supervision (1) If the court declares under Division 2 or 4 that an accused person is liable to supervision, the appropriate person must, within 30 days after the date of the declaration or the longer period (if any) agreed to by the court, prepare and submit a report to the court on the mental impairment, condition or disability of the accused person that is the reason he or she was found to be not guilty of the offence charged because of mental impairment or to be unfit to stand trial. Criminal Code Act 1983 78 (2) A report referred to in subsection (1) is to contain: (a) a diagnosis and prognosis of the accused person's mental impairment, condition or disability; (b) details of the accused person's response to any treatment, therapy or counselling he or she is receiving or has received and any services that are being or have been provided to him or her; and (c) a suggested treatment plan for managing the accused person's mental impairment, condition or disability. 43ZK Periodic reports on condition of supervised persons (1) If the court makes a supervision order, the appropriate person must, at intervals of not more than 12 months, until the supervision order is revoked, prepare and submit a report to the court on the treatment and management of the supervised person's mental impairment, condition or disability. (2) A report referred to in subsection (1) is to contain: (a) details of the treatment, therapy or counselling that the supervised person has received, and the services that have been provided to the supervised person, since the supervision order was made or the last report was prepared (as the case may require); and (b) details of any changes to the prognosis of the supervised person's mental impairment, condition or disability and to the plan for managing the mental impairment, condition or disability. 43ZL Reports on views of victim or next of kin (1) At the time the court is considering whether to make, vary or revoke a supervision order in respect of an accused person or a supervised person, or whether to determine to release a supervised person from a supervision order, the victim of the offence concerned or the next of kin of the victim (who may be a deceased victim) may prepare and submit a report to the court setting out the views of the victim or next of kin concerning one or more of the (a) the conduct of the accused person or supervised person; (b) the impact of the accused person's or supervised person's conduct on the victim or the next of kin or any other member of the victim's family; Criminal Code Act 1983 79 (c) if the court is considering whether to release a supervised person from a supervision order – the impact the supervised person's conduct could have on the victim or next of kin or any other members of the victim's family if the supervised person is released. (2) The court must receive all reports made to it under subsection (1). (3) The court may, on its own initiative if it considers it will assist in determining whether to make, vary or revoke a supervision order in respect of an accused person or a supervised person, or whether to release a supervised person from a supervision order, request one or more of the following reports: (a) a report setting out the views of the next of kin of the accused person or supervised person and the impact of the accused person's or supervised person's conduct on the next of kin or other members of the accused person's or supervised person's family; (b) if the accused person or supervised person is a member of an Aboriginal community – a report setting out the views of the members of the Aboriginal community. (4) The court must consider all reports made to it under this section. 43ZLA Definition order means: (a) a declaration that an accused person is liable to supervision; or (b) an order releasing an accused person unconditionally; or (c) an interim order for the bail of an accused person; or (d) an interim order providing for the custody of an accused person or supervised person; or (e) an order making, varying or revoking a supervision order; or (f) an order releasing a supervised person. Criminal Code Act 1983 80 43ZM Principle court to apply when making order In determining whether to make an order under this Part, the court must apply the principle that restrictions on a supervised person's freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community. 43ZN Matters court must take into account when making order (1) In determining whether to make an order under this Part, the court must have regard to the following matters: (a) whether the accused person or supervised person concerned is likely to, or would if released be likely to, endanger himself or herself or another person because of his or her mental impairment, condition or disability; (b) the need to protect people from danger; (c) the nature of the mental impairment, condition or disability; (d) the relationship between the mental impairment, condition or disability and the offending conduct; (e) whether there are adequate resources available for the treatment and support of the supervised person in the community; (f) whether the accused person or supervised person is complying or is likely to comply with the conditions of the supervision order; (g) any other matters the court considers relevant. (2) The court must not make an order under this Part releasing a supervised person from custody (whether conditionally or otherwise) or significantly reducing the supervision to which a supervised person is subject unless: (a) the court has: (i) obtained and considered 2 reports, each report being prepared by a person who is a psychiatrist or other expert (but the same person must not prepare both reports); and (ii) considered the reports submitted to the court under sections 43ZJ and 43ZK and received by the court under section 43ZL, if any; and Criminal Code Act 1983 81 (b) subject to subsections (3) and (4), the court is satisfied that each of the following persons was given reasonable notice of the proceedings concerned: (i) the victim of the offence concerned; (ii) if the victim concerned is deceased – the victim's next of kin; (iia) the next of kin of the supervised person concerned; (iii) if the supervised person concerned is a member of an Aboriginal community – the Aboriginal community. (3) Notice is not required to be given to a person referred to in subsection (2)(b) if the person cannot be found after reasonable inquiry. (4) Notice is not to be given to a person referred to in subsection (2)(b)(i) or (ii) who has given notice to the court that he or she does not wish to be notified of any hearings in relation to the supervised person concerned and has not withdrawn that notice. 43ZO Legal counsel to have independent discretion If an accused person or supervised person is unable to instruct his or her legal counsel on questions relevant to an investigation or proceedings under this Part, the legal counsel may exercise an independent discretion and act as he or she reasonably believes to be the in the person's best interests. 43ZP Counselling next of kin (1) If an application is made to the court under this Part that might result in an order for the release from custody of a supervised person, the Minister must ensure that counselling services are available to the victim, next of kin of a deceased victim and next of kin of the supervised person. (2) A person who, in the course of the provision of counselling services to a person referred to in subsection (1), discloses information about the supervised person concerned to another person does not, in doing so, contravene the law of the Territory or any code or rule of conduct or professional ethics and is taken not to have committed an offence against the law in force in the Territory because of the disclosure. Criminal Code Act 1983 82 43ZPA Protection from liability (1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act as a person authorised for section 43ZA(2A). (2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission. exercise, of a power, includes the purported exercise of the power. performance, of a function, includes the purported performance of the function. 43ZQ Regulations The Administrator may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Part to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.