February 20, 2019
Alexander Angel-Graham

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.