Mental Illness and Sentencing in New South Wales

Mental Illness and Sentencing in New South Wales

There are many ways in which mental health issues are taken into account in the criminal justice system. It may have some bearing on the proceedings and the way they are conducted, and it may also factor in if the matter proceeds to sentence.


In relation to indictable matters, mental health issues may raise questions in respect of fitness to plead, or the criminal responsibility of the accused (such as whether to pursue a defence of not guilty by reason of mental illness, or the partial defence of substantial impairment).


In respect of matters which are triable summarily, an application can be made to the court to divert the offender out of the criminal justice system and into a treatment program.[1]


Where the above applications are not applicable or they are not successful, the person will stand trial (or plead guilty), and if convicted they will be subject to the normal sentencing process.


In order for mental illnesses to be taken into account on sentence, the mental illness must have been present at the time of the commission of the offence, and/or at the time of sentence.[2]


The following is a summary of the sentencing considerations when a person with mental health issues is before the court.



General sentencing principles:


There are five general principles which are applicable when sentencing those with a mental or cognitive condition or intellectual disability.[3] The principles are:


Principle 1: Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in sentence.


Principle 2: It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in the reduction in the sentence which would otherwise have been imposed.


Principle 3: It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.


Principle 4: It may reduce or eliminate the significance of specific deterrence.


Principle 5: Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.


Although, it has recently been remarked that none of these principles are stated as absolute but rather they “direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption.”[4] Each particular matter will turn on the facts.


Objective seriousness and moral culpability:


In assessing the objective seriousness of an offence, the Court is to have regard to facts which directly relate to its commission. This includes factors which may explain why the offence was committed.[5]


The mental condition of the offender at the time of the offence is a critical component of moral culpability, which in turn affects the assessment of the objective seriousness of the offence.[6]


The reason for this is:


To the extent that mental illness explains the offence…then an offender’s ability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender.”[7]


If the offender’s moral culpability is to be reduced, there must be some causal link between the impairment and the offending.[8] In determining whether there is a link is a matter particular to the circumstances of the individual case.


Prospects of rehabilitation:


When assessing the prospects of rehabilitation of an offender at sentence, mental health may be considered, even in situations where the mental disorder has no causal connection to the commission of the offence.[9]


 General deterrence:


Ordinarily, the court factors in that the sentence imposed on the offender should also send a message to the public at large – it should be a future deterrent for other potential offenders. This is referred to as general deterrence.


When an offender is suffering from a mental disorder or abnormality, general deterrence should be given very little weight.[10] It should be given little weight because an offender not in full control of his/her conduct is not an appropriate medium to be making an example to others.[11]


The psychiatric illness does not need to be sufficiently serious before it is relevant to the sentencing process. It has been stated that:


“The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence.”[12]


The moderation need not be great if the offender acts with knowledge of what he is doing and has knowledge of the gravity of his actions,[13] or if the mental health issue was self-induced (e.g. drug use)[14].


Specific deterrence:


Specific deterrence is intended to discourage future criminal behaviour by the offender.


The requirement for specific deterrence on sentence may be reduced or eliminated as a sentencing requirement when an offender suffers from a mental illness.


The following will likely factor into consideration: the nature and severity of the symptoms of the condition, the effect of the condition on the mental capacity of the offender and whether the symptoms occurred at the time of the offending or at the date of sentence or both.[15]


Protection of the community and future dangerousness:


One of the purposes of sentencing is to protect the community from the offender.[16] If an offender appears to present more of a danger to the community because of a mental illness, there may be more emphasis placed on specific deterrence.[17]


Findings of future dangerousness do not need to be established beyond reasonable doubt[18], it has been held to be sufficient that a risk of re-offending is established by the Crown.[19] In the prediction of future risk, the presence of a mental disorder is not the sole indicator of dangerousness, but other factors such as drug dependency and history of prior offending are considered.


While a person’s risk of future violent offending is relevant to the assessment of the need for protection of society, it must not lead to a sentence disproportionate to the gravity of the offence.[20]


Proportionality requires the upper boundary of a sentence to be set by the objective circumstances of the offence, which does not encompass prior convictions. Prior criminal history can aggravate the sentence, but it can not be used to increase the upper limit of objective seriousness of the offence.[21]


Custodial hardship:


People with mental illnesses can be more vulnerable in prison than the general prison population.


For this reason, the court may consider if the imposition of a custodial sentence may weigh more heavily on the offender due to the mental illness.


Evidence should be provided to the court about the particular difficulties the offender will face in custody.[22] For example: whether or not the offender would be able to obtain treatment in custody, whether the mental illness would place him in protected custody, the offenders ability to socialise with other inmates.



[1] Mental Health (Forensic Provisions) Act 1990 (NSW), Part 3.

[2] R v Anderson [1981] VR 155; (1980) 2 A Crim R 379.

[3] DPP v De La Rosa [2010] NSWCCA 194; 69 NSWLR 1, at [177].

[4] Aslan v R [2014] NSWCCA 114 per Simpson J, at [34].

[5] R v Way (2004) 60 NSWLR 168, at [118].

[6]Yun v R [2017] NSWCCA 317 per Latham and Bellew JJ, at [47].

[7]R v Israil [2002] NSWCCA 255 per Spigelman CJ, at [23].

[8] See for example: R v Cotterill [2012] NSWSC 89 per McCallum J, at [30]; R v Mohammed Fahda [2012] NSWSC 114 per Harrison K, at [38].

[9] R v Engert (1995) 84 A Crim R 67 per Gleeson CJ at [71].

[10] Muldrock v The Queen [2011] HCA 39, at [53].

[11] R v Windle [2012] NSWCCA 222, at [41].

[12] DPP (Cth) v De La Rosa [2010] NSWCCA 194, at [168].

[13] Clay v R [2007] NSWCCA 106; Carroll v R [2012] NSWCCA 118.

[14] R v Wright (1997) 93 A Crim R 49, at 51-52.

[15] R v Verdins [2007] VSCA 102, at [32].

[16] Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(c).

[17] Barbieri v R [2016] NSWCCA 295 per Simpson J, at [54].

[18] R v SLD (2003) 58 NSWLR 589, at [40].

[19] R v Harrison (1997) 93 A Crim R 314, at [319].

[20] Potts v R [2012] NSWCCA 229.

[21] R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242, per Spigelman CJ.

[22] R v Wright [2013] NSWCCA 82.


An assault occurs when a person either physically interferes with another person or makes another person reasonably think that they will be interfered with. There are many different charges for different types of assault, each applying to different degrees of seriousness. You can even be charged with an assault if you act recklessly where you did not intend to assault the person but you ought to have known that a person could be assaulted by your actions.




Common Assault is dealt with under Section 61 of the Crimes Act 1900. It can be heard in the Local Court or under indictment in the District Court. A common assault occurs when a person is physically struck or interfered with by another person and there is minimal damage done or minimal medical attention required. A common assault can be committed with a hand, fist, any other part of the body or a handheld implement. It can also occur where a person has a reasonable apprehension that they will be assaulted, for example, where someone raises a hand or fist to another person.

If you are found guilty of Common Assault, it can be dealt with by the court in a number of ways, the most serious being a maximum of 2 years imprisonment and the least serious being a Section 10. All of these outcomes will result in a criminal record, however, a Section 10 will not record a conviction against your name.




Assault Occasioning Actual Bodily Harm (‘ABH’) is dealt with under Section 59 of the Crimes Act 1900. It can be heard in the Local Court or under indictment in the District Court. ABH is more serious than Common Assault and is generally a common assault that results in more serious injuries that may require proper medical attention. In general, the DPP or Police must prove that the accused person intended to cause these serious injuries, however, a conviction can also be reached if the accused recklessly caused these injuries, for example, by assaulting someone so badly that it caused ABH even if they didn’t mean to.

If you are found guilty of ABH, it can be dealt with by the court in a number of ways, the most serious being a maximum of 5 years imprisonment in the District Court and the least serious being a Section 10.




Wounding or Grievous Bodily Harm with Intent (‘GBH’) is dealt with under Section 33 of the Crimes Act 1900. This is a strictly indictable offence, meaning it must be heard in the District Court or higher. After a serious assault takes place, a person may suffer wounding or GBH as a result of injuries from the assault.

Wounding is caused when both the outer and inner layers of the skin are broken for example by stabbing, cutting or laceration. Minor abrasions or scrapes would not generally constitute a wound as they would not pierce the inner layer of the skin.

GBH is caused when a person causes any permanent or serious disfiguring or a person, inflicts a grievous bodily disease on a person or caused the destruction of the foetus of a pregnant woman (unless it is a medical procedure) even if the pregnant woman does not suffer any harm.

If you are found guilty of Wounding or GBH with Intent, it can be dealt with by the court in a number of ways, the offence carries a maximum term of 25 years imprisonment.




Reckless Grievous Bodily Harm (‘GBH’) or Wounding is dealt with under Section 35 of the Crimes Act 1900. It can be heard in the Local Court or under indictment in the District Court. Reckless GBH or Wounding can come about when a person causes GBH or a Wound to a person even without intending to, as a result of causing Actual Bodily Harm to that person.

The law does not specifically define the term ‘reckless’, however, the courts take the general view that where a person is reckless, it is reasonable that they should have known that their actions would result in a wounding or GBH of the other person, whether they meant for it to happen or not.

If you are found guilty of Reckless GBH, it can be dealt with by the court by way of a maximum of 10 years imprisonment in the District Court and 2 years imprisonment in the Local Court and/or a fine of up to $11,000.

If you are found guilty of Reckless Wounding, it can be dealt with by way of a maximum of 7 years imprisonment in the District Court and 2 years imprisonment in the Local Court and/or a fine of up to $11,000.




Assault Causing Death when Intoxicated is dealt with under Section 25B of the Crimes Act 1900. This occurs if you are intoxicated, assault a person and that person dies as a result of the assault. The law indicates that a person can be considered intoxicated with 0.15 grams of alcohol per 100 mL of blood which is equivalent to high range drink driving.

If you are found guilty of Assault Causing Death when Intoxicated the court must impose a mandatory minimum sentence of no less than 8 years imprisonment.