Mental Impairment and Sentencing

Mental impairment or illness is relevant to sentencing in two main ways:

  • mental impairment is an important part of an offender's personal circumstances and is one of many factors 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 mental impairment refers to any temporary or permanent restriction on mental or intellectual functioning or any mental disorder or abnormality. It can arise from a defined mental illness or from other mental conditions such as post-traumatic stress disorder, Asperger's syndrome, post-natal depression, schizophrenia, or intellectual disability. For mental impairment to be a relevant consideration in sentencing, there is no need for the offender to have a diagnosable mental illness or for the illness/impairment to be of a particular level of severity.

In R v Verdins (2007) 16 VR 269, the Court of Appeal stated that mental impairment was relevant to sentencing in at least five ways. Mental impairment could:

  1. reduce the offender's moral culpability (but not his or her legal responsibility) for the offence – this could affect the weight given to just punishment and denunciation as purposes of sentencing the offender
  2. influence the type of sentence that could be imposed and the conditions in which the sentence could be served
  3. 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 his or her offending and at the time of sentencing
  4. increase the hardship experienced by an offender in prison if he or she suffered from mental impairment at the time of sentencing
  5. 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.

Judges and magistrates may consider the Verdins principles when sentencing an offender who has a mental impairment at the time of the offence and/or at the time of sentencing.

Orders for Mentally Ill Offenders

A mental illness is a ‘medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. This definition applies under the Sentencing Act 1991  and the Mental Health Act 2014.

In Australia, mental illness is nearly three times more prevalent among people in prison than in the general community (Australian Institute of Health and Welfare, Australia’s Health 2012, Australia’s Health Series no. 13, cat no. 156 (2012) 132).

If an offender has a mental illness, two additional types of order can be made:

  • court assessment order
  • court secure treatment order.

Court Assessment Order

A court assessment order is made before sentencing. This order allows a person to be compulsorily examined by a psychiatrist. This may involve detaining the person at a mental health service. Based on this assessment, the court decides whether to make a court secure treatment order or impose another type of sentence.

Court Secure Treatment Order

A court secure treatment order allows a person to be compulsorily detained and treated at a mental health service. A court imposes this type of order where it is satisfied that the offender has a mental illness and needs mental health treatment to prevent serious deterioration in his or her health or to prevent serious harm to the offender or another person (among other factors). This type of order can only be made where imprisonment would have been imposed had the offender not had a mental illness. The court must also be satisfied that no other less restrictive option is available to the court for the person to receive the treatment that he or she needs. The court cannot impose a court secure treatment order for a period longer than the term of imprisonment the court would have otherwise imposed. 

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