It is difficult to define the length of time an individual should be in custody based on an alleged crime, given the person has not been found guilty and given the large number of factors that are taken into account when sentencing. However it is clear that some people held under the Act have been in custody longer than their offence would normally warrant. They are typically Aboriginal and placed in prison. Some examples include:
- An Aboriginal man with schizophrenia, polysubstance abuse, and a cognitive impairment who was charged with trespassing and performing an indecent act with intent to insult or offend. He has been in prison for over three years.
- An Aboriginal man with a congenital intellectual impairment who was placed in police custody for street drinking and obscene acts in public. He damaged cells in the police lockup, and has since been in prison for over four years.
- An Aboriginal man diagnosed with organic brain damage who was charged with stealing with violence. He was under the Act for seven years before being unconditionally released.
- An Aboriginal man with an intellectual impairment who was charged with sexual penetration of a child and indecent dealings and was made subject to a custody order in March 2003. He disputed these charges and in 2010 a psychological report concluded that he was now fit to stand trial. He was not given the opportunity to plead not guilty to the charges in court as the Director of Public Prosecutions filed a notice of discontinuance, advising that the period of time he had served in prison already exceeded any sentence a court would reasonably impose. With no avenue to appeal the initial custody order, this man continues to be under the Act. He spent a decade in prison before being granted a conditional release order.