Victorian Current Acts Victorian Current ActsS. 40(1) amended by Nos 7/2002 s. 19(1), 55/2014 s. 127.
(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A 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
S. 40(2)(ab) inserted by No. 7/2002 s. 19(2)(a).
(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
S. 40(2)(da) inserted by No. 7/2002 s. 19(2)(b).
(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.
S. 40(3) substituted by No. 7/2002 s. 19(3).
(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.
S. 40(4) inserted by No. 7/2002 s. 19(3).
(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.
S. 41 (Heading) inserted by No. 68/2009 s. 97(Sch. item 39.37).