Mental impairment can be very relevant to sentencing. It is an important part of an offender's personal circumstances. It is also one of many considerations a court must take into account when sentencing an offender. Some sentencing orders are only available if the offender has a mental illness.
Mental Impairment as a Sentencing Factor
The term impaired mental functioning is defined in section 10A of the Sentencing Act 1991 (Vic) to include a mental illness, intellectual disability, acquired brain injury, autism spectrum disorder or a neurological impairment such as dementia.
In the case R v Verdins & Ors [2007] VSCA 102, the Court of Appeal stated that mental impairment was relevant to sentencing in at least five ways. These are known as Verdins principles.
Mental impairment could:
- reduce the offender's moral culpability (but not their legal responsibility) for the offence. This could affect the weight given to just punishment and denunciation as purposes of sentencing the offender
- influence the type of sentence that could be imposed and the conditions in which the sentence could be served
- reduce the weight given to deterrence as a purpose of sentencing. This would depend on the nature and severity of the mental impairment and how this impairment affected the mental capacity of the offender at the time of their offending and at the time of sentencing
- increase the hardship experienced by an offender in prison if they suffered from mental impairment at the time of sentencing
- justify a less severe sentence where there was a serious risk that imprisonment could have a significant adverse effect on the offender's mental health.
In some cases, a person’s mental impairment is so significant that they do not have capacity to be held criminally responsible for their actions. This is known as the defence of mental impairment. This means the person is found not guilty, and courts have the power to make a supervision order. A supervision order requires the person to receive mandatory psychiatric treatment for an indefinite period to treat their mental health condition and minimise their risk to the community.
Orders for Offenders with Mental Illness
Section 3 of the Sentencing Act 1991 (Vic) states that the definition of mental illness is the same as the definition in the Mental Health and Wellbeing Act 2022 (Vic). That Act defines a mental illness as a ‘medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’.
Courts can make two additional types of order for offenders with mental illness who are found guilty of an offence:
- a court assessment order
- a court secure treatment order.
Court Assessment Order
A court assessment order requires a person to be assessed by a psychiatrist. This may involve detaining the person at a mental health service. The court makes the order before sentencing. The court can then decide whether to make a court secure treatment order or impose another type of sentence based on the psychiatrist's assessment.
Court Secure Treatment Order
A court secure treatment order requires an offender to be detained and treated at a mental health service. A court imposes this type of order where the offender has a mental illness and needs mental health treatment to prevent serious deterioration in their health or to prevent serious harm to the offender or another person.
A court can only make a court secure treatment order where imprisonment would have been imposed had the offender not had a mental illness. The court must be satisfied that no other less restrictive sentence is available for the offender to receive the treatment that they need.
The court cannot impose a court secure treatment order for a period longer than the term of imprisonment that would have otherwise been imposed.
Further information about assessment orders and treatment orders is available in the Department of Health’s Mental Health and Wellbeing Act 2022 Handbook.
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