An Analysis of New South Wales Sentencing Statistics
Published by the Judicial Commission of New South Wales
Editor – Ivan Potas – Research Director
Number 23 – September 2002
Sentencing Mentally Disordered Offenders:
The Causal Link
Sally Traynor Research Officer
This paper examines the development of case law and sentencing jurisprudence in different jurisdictions with regard to sentencing offenders with a mental illness, mental condition or intellectual disability, and with specific emphasis on the position in NSW.1 Of particular interest is whether it has been universally accepted that a causal connection is required between the offender’s mental disorder and the offence committed before a more lenient sentence may be imposed, and whether it is appropriate to apply this same approach to the sentencing of offenders with an intellectual disability.
The treatment by the criminal justice system of people with a mental illness, mental condition or intellectual disability has been the subject of much discussion. Numerous reports,2 papers and newspaper articles3 have focused on issues such as an accused’s fitness to be tried, the defence of mental illness4 or the partial defence of substantial impairment by an abnormality of the mind.5 There has also been considerable debate in many jurisdictions concerning the availability of alternative sentencing options for people with a mental illness, such as the use of hospital orders6 or indeterminate sentences where an offender is considered to be mentally ill and dangerous to the community. Although these issues are important, this paper explores the sentencing principles that apply when an offender’s mental illness, mental condition or intellectual disability arises for consideration at the sentencing stage of proceedings.
It is now accepted in all Australian jurisdictions that, for the purposes of sentencing, the principle of general deterrence may be given less weight where an offender is suffering from a mental illness or condition, on the basis that he or she is an inappropriate vehicle to use as an example to others. In addition, a second line of emerging authority suggests that to justify a mitigation in the penalty imposed, the mental disorder or disability needs to have some causative role in the commission of the offence so as to reduce the offender’s culpability.7 Conversely, where the crime is very grave and there is no particular link between the disorder and its commission, the goal of general deterrence takes primacy and no mitigating circumstances need be found. Courts in NSW, however, have not always appeared to be so accepting of this principle, particularly in cases involving offenders with an intellectual disability.
Renewed focus on the treatment of people with mental illness within the criminal justice system in the 1980s led to a range of legislative reforms to ensure that offenders suffering from a mental illness were provided with adequate treatment and that those offenders who were found unfit to be tried were not detained indefinitely.8 These provisions were the precursor to the Mental Health (Criminal Procedure) Act 1990 (NSW), which sets out the current procedure for dealing with issues of fitness and the defence of mental illness.
Section 3 of the Mental Health (Criminal Procedure) Act defines “mental condition” as “a condition of disability of mind not including either mental illness or developmental disability of mind”. This Act is to be read in conjunction with the Mental Health Act 1990 (NSW) which contains definitions of mental illness,9 mentally ill person10 and mentally disordered person.11 These definitions, however, do not apply in the same way at the sentencing stage of proceedings. Rather they are directed at considerations relating to the preliminary disposal of a matter in summary proceedings, fitness inquiries and the defence of mental illness. In relation to sentencing, s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 merely indicates that the offender’s “mental condition” must be taken into account in sentencing, without providing any definition of this term. It is likely, therefore, to have a much broader meaning than that contained in the mental health legislation.
For the purposes of this paper, the terms “mental disorder”, “mental condition” and “mental illness” are used (at times interchangeably), as well as the term “intellectual disability”, to encompass the broad range of mental health considerations raised in sentencing proceedings.12
2. Sentencing methodology
During the 1970s and 1980s there was considerable debate as to the appropriate sentencing methodology to apply to mentally disordered offenders. As new developments were made in the area of psychology there was a shift away from a philosophy of incarceration as punishment to an increased emphasis on deinstitutionalisation and treatment. This was not only considered to be more humane to the individual, but ultimately to be of benefit to the community. However, not all commentators were convinced that an emphasis on treatment would provide a more positive outcome for the offender. During this period, much of the literature focused on the merits of the “just deserts” theory of punishment as opposed to rehabilitation. It is therefore prudent to briefly examine the underlying ideology of these two approaches.13
2.1 Just deserts
Retribution in its most simplistic form is based on the premise that those who inflict harm on others should suffer a commensurate penalty. However, sentencing practice based on this theory of justice has been heavily criticised for its failure to examine the underlying causes of crime and to adequately address an offender’s personal circumstances, such as deprived social background.
The more modern adaptation of the theory of retribution (just deserts) asserts that the severity of the sanction imposed should be commensurate with or proportionate to the seriousness of the wrongdoing or moral culpability of the offender. This is said to be of particular importance when an offender has a mental disorder that may cause the offender to be less culpable for his or her actions. In these cases the mental disorder is often considered a mitigating factor.14
2.2 Treatment-based punishment
In contrast, rehabilitation or reformation seeks to address those factors considered to cause or contribute to the offending behaviour and offers an alternative to conventional sentencing options. This has been particularly contentious in the area of mental health. According to Professor Richard Fox the emphasis on treatment or rehabilitation led to a serious “…watering down of the concept of proportionality as a factor in sentencing”.15 Instead, there was a tendency to sentence offenders for longer periods or for indeterminate sentences in order to achieve therapeutic purposes. Indeed, it has been suggested that behind this policy lay a hidden agenda of sheer incapacitation, with offenders often being forced into treatment against their will.16
Evidence of this approach is highlighted by the use of life sentences in England as a “merciful” alternative to fixed term sentences. Under this system, offenders may be released earlier than they might otherwise be should they recover quickly, or be detained indefinitely on the basis of predictions as to their future dangerousness.17 Similar provisions used in nearly all Australian States and Territories, other than NSW, are often based more on community protection than the rehabilitation of the individual offender.18 However, the logic of rehabilitative sentencing – which suggests that if the offender cannot be treated successfully, he or she must be detained indefinitely – has not met with approval at common law.
3. Sentencing rationale
Australian courts have put forward a number of different objectives as the primary aim of sentencing,19 for example, rehabilitation,20 retribution, general and specific deterrence21 and the protection of the community.22According to Bargaric the pronouncement of different sentencing objectives partially arises from the fact that there is no consistent approach to the underlying theory of punishment.23 However, the task of sentencing is a complex and often difficult one. The court must balance the competing aims of sentencing by looking at the individual circumstances of each case –
“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”24
The various purposes of sentencing are also reflected in s 16A of the Crimes Act 1914 (Cth) and s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which set out all the factors the court must consider when imposing a sentence.25 However, the legislation provides no guidance on how these factors should be balanced where there is a conflict between the different sentencing considerations. According to Professor Andrew Ashworth, there is no reason why a primary sentencing rationale cannot be declared, while acknowledging that in certain cases a different rationale may require priority.26
3.1 Sentences should fit the crime: proportionality
It has long been recognised that in determining a sentence courts must look at the concept of proportionality to ensure that the penalty is just in all the circumstances. That is, the penalty imposed must generally be commensurate with the seriousness of the offence. However, within the context of mental disorders, there often appears to be an inherent conflict between the concept of proportionality and community protection. A tension exists between providing a discount in sentence on the basis that the mentally disordered offender is less culpable, and increasing the sentence on the basis that the offender has little control over his or her actions and may be a continuing threat to society. Courts are often left to consider the appropriate balance between the protection of the community, and the most appropriate and humane method of dealing with the offender.27
In the oft-quoted case of R v Clarke,28 a mentally disturbed young woman, with a long history of relatively minor offences, was convicted of damaging a flower pot valued at one pound. She was sentenced to 18 months imprisonment for the protection of society. In quashing the sentence Lord Justice Lawton indicated that responses must be measured to fit the offence and not the offender.29 Similarly, in R v Gascoigne30 the trial judge sentenced the defendant on the basis of his mental state, rather than on the offence committed. The Queensland Court of Appeal found this to be wrong in principle. According to Hanger J, when sentencing an offender reference may only be had to the offence committed, not to some feature about the offender.31
The dilemma between balancing the competing considerations of community protection and proportionality was explicitly addressed by the High Court in Veen v The Queen (No 2)32 –
“Mental disorder, as exemplified by Veen’s case, is a particularly paradoxical factor in sentencing because it is relevant, retrospectively, to the offender’s level of culpability for the offence presently charged (suggesting, on desert grounds, a reduction in penalty), yet also bears, prospectively, upon his or her likely future conduct (suggesting, on social defence grounds, an increase in penalty).”33
3.2 Setting the outer limits
In Veen v The Queen (No 2),34 the High Court made it clear that proportionality is the key consideration to take into account in sentencing. Veen was an unusual case that captured the attention of many authors at the time. It acutely brought into focus issues surrounding the appropriate sentencing principles to apply when the offender is considered dangerous to the community. In this case the applicant suffered from alcohol-induced brain damage, rather than any diagnosed mental disorder.
The applicant had previously been before the High Court in Veen v The Queen (No 1).35 In that case he stabbed a person he had engaged in homosexual intercourse with after the victim refused to pay him. The Court of Criminal Appeal upheld the original sentence of life imprisonment, but this was overturned by the High Court. Instead, the High Court reduced the sentence to 12 years imprisonment and Veen was released on licence after eight years. Within a month of being released Veen stabbed another man to death in strikingly similar circumstances. He was again convicted of manslaughter on the grounds of diminished responsibility and sentenced to life imprisonment. Special leave to appeal to the High Court was granted and it was once more asked to consider whether a life sentence was appropriate on the basis of proportionality.
The High Court held (per Mason CJ, Brennan, Dawson and Toohey JJ; Gaudron, Wilson and Deane JJ dissenting in separate judgments) that the principle of proportionality was firmly established. Consequently, they found it was impermissible to increase a sentence beyond that which is proportionate to the crime in order merely to extend the period of protection to society from the risk of recidivism on the part of the offender. Nor could the sentence be increased simply to serve an “educative purpose”, or to provide the offender with access to psychiatric or other services –
“The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen [No 1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.”36
However, the principle of proportionality as expressed in Veen (No 1) was further qualified.37 The court found that when sentencing a mentally disordered offender it is not necessarily inappropriate to take into account the fact that the offender is a danger to society, provided this element does not lead to a more severe penalty than would have been imposed, had the offender not been suffering from a mental abnormality –
“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”38
Except where otherwise provided for by legislation, the common law prohibits judges or magistrates from awarding sentences beyond that which is commensurate to the gravity of the crime being punished. While the court unanimously endorsed proportionality as the paramount consideration in sentencing, not all the justices agreed on the correctness of the outcome. In particular, Deane J saw a need for statutory intervention to counter the problems of mentally ill offenders who were considered dangerous to the community.39
The requirement of proportionality at common law subscribes to the retributive view of punishment, as it prevents the courts from imposing a sentence for the purpose of rehabilitation that is longer than a sentence passed against a non-disordered offender –
“From the retributive point of view, mental abnormality appears to operate in only one way, to reduce the severity of punishment below the punishment that is proportionate to the offence of which the offender has been convicted.”40
Since the High Court decision in Veen (No 2) a substantial body of case law has developed across all Australian jurisdictions concerning the sentencing of mentally disordered offenders and people with an intellectual disability. Trends in recent cases are discussed below.
4. Sentencing mentally disordered offenders
The defence of mental illness is rarely used in the Local Court in NSW, where there is no statutory defence of mental illness. Although the common law defence of mental illness may be raised, a number of diversionary procedures at the magistrate’s disposal are more commonly used. Part 3 of the Mental Health (Criminal Procedure) Act 1990 (NSW) provides a magistrate with discretion to make a finding that a defendant is suffering from a mental illness or condition. Section 32(3) allows a magistrate to dismiss proceedings against a defendant considered to be developmentally disabled or suffering from mental illness, and discharge the defendant into the care of a responsible person. According to the Bureau of Crime Statistics and Research only a small proportion of offenders are dealt with in this manner with 505 persons out of 111,045 for whom criminal charges were finalised in 1996 having their charges dismissed under the Act.41
In the higher courts, a significant number of offenders who suffer from some kind of mental illness or personality disorder42 request that this be taken into account at the sentencing stage, rather than relying on the defence of mental illness. A special verdict of not guilty by reason of mental illness is available in the higher courts pursuant to s 38 of the Mental Health (Criminal Procedure) Act 1990 (NSW),43 however, a defendant who suffers from a mental illness may not wish to plead “not guilty by reason of mental illness” due to the stigma attached to the defence or because his or her condition does not necessarily fall within the legal definition set out in the legislation.44 A defendant may also be afraid that they will receive a more severe sentence of imprisonment in a psychiatric unit as a “forensic patient”, than if they were sentenced to a term of general imprisonment.45 As a result, many offenders seek to raise the presence of a mental disorder or other condition at sentence.46
Once the issue of mental illness is raised at sentencing, a judge must sentence an offender on the basis that issues such as fitness to be tried and the defence of mental illness have been excluded, and that the defendant is responsible for his or her conduct.47 This is not the same as saying that the mental condition of the offender ceases to have any relevance for the purposes of sentencing. While there is no clear guidance as to what types of mental abnormalities may be taken into account at sentencing, it is suggested that these will often be broader than those illnesses taken into account under the Mental Health Act 1990 (NSW)48 –
“Indeed, there is no agreement as to who should be considered a mentally abnormal offender for the purposes of sentencing. In the criminal trial process, the definition of mental disorder varies from stage to stage. Different concepts of disorder apply for the purposes of unfitness to stand trial, the defence of insanity, and the defence of diminished responsibility. However, there have been no judicial attempts at arriving at a formal definition of the types of mental disorder that are pertinent to sentencing.”49
4.1 General deterrence
There is considerable authority, particularly from Victoria, for the view that when sentencing an offender with a mental disorder the principles of general deterrence may have less weight than if the offender was of sound mind. General deterrence is based on the concept that others who are likely to commit a similar offence will be deterred from doing so due to an awareness of the likely consequences should they be caught. Deterrence implies that an offender is acting with some rational judgment, however, in the case of an offender with a mental disorder, he or she may have a reduced ability to assess the wrongfulness of particular conduct, or to control his or her actions. Therefore, a sentence in which general deterrence is the primary factor may not be considered acceptable to the community when the offender suffers a disability of the mind.
In R v Mooney,50 the Victorian Court of Criminal Appeal considered whether an offender, diagnosed as having a manic depressive psychosis, should be granted a reduction in sentence for an unprovoked attack on two policewomen. The question for the court was whether the interests of society should permit a reduction in sentence from what would otherwise be an appropriate sentence, rather than whether the offender’s responsibility for the offence should be regarded as having been reduced. The court found the appellant was an “inappropriate person to be made the medium of a deterrent sentence” that would have been justified in normal circumstances. Chief Justice Young stated –
“In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight…General deterrence should often be given very little weight… because such an offender is not an appropriate medium for making an example to others.”51
A similar view was also expressed by the court in R v Kilmartin,52 where a severely intellectually disabled man pleaded guilty to charges of child stealing, indecent assault and common assault. Although the offender had a long history of such offences, the court found that the defendant was not an appropriate subject for general deterrence.53
In R v Scognamiglio54 the NSW Court of Criminal Appeal was asked to consider whether the concept of general deterrence applied when sentencing an applicant who was clearly disturbed at the time of the offence. The applicant was sentenced to a minimum term of five years and nine months for attempted murder and two associated offences. He had been behaving strangely for some time and set fire to his employer’s house with his colleague locked inside. Grove J observed (Newman and Clarke JJ agreeing)55 –
“The question arises therefore whether general deterrence, as the concept can be conveniently phrased, should be applied in the sentencing process in the manner which his Honour indicated or at all. That mental handicap, short of providing a defence on the grounds of mental illness, is a basis for reduction of sentence has long been recognised.56 Even if the offender is suffering from a condition which predicates further violence, the potential loss of reduced sentence on that account does not justify increase either for personal deterrence of the offender or general deterrence.”57
Of course, courts do not look at one principle in isolation. For example, in R v Israil58 the NSW Court of Criminal Appeal rejected a Crown appeal against the leniency of a sentence imposed upon an offender convicted of armed robbery who displayed a mental illness of a particularly high order, noting that this “gave rise to issues of culpability, personal deterrence and general deterrence, as well as rehabilitation”.
4.2 Causal link
In R v Man,59 the Victorian Court of Criminal Appeal again held that the principle of general deterrence has little weight when an offender suffers a mental disorder, however, they also examined whether the defendant’s culpability was reduced by virtue of such a disorder. Here the applicant suffered from longstanding chronic paranoid schizophrenia. A manifestation of his mental illness was that he considered himself a person with a social conscience and formed an organisation called the “Social Systems Intervention Unit”. In order to raise the necessary funds for the organisation the applicant committed a bank robbery. He was not considered a suspect by the police, but voluntarily confessed to the crime two years later. Crockett J found the offender was not driven by greed, but that the motivation for the offence was inextricably linked to his mental illness, thereby reducing his culpability –
“The applicant’s motive was not greed in the usual way. It is true that he did what he did to get money and he wished to have money to serve his own personal purposes. But the motive to get the money and to get it by the means he employed, so that he might then spend it for the purposes that he had in mind, all sprang from his mental illness. He needed the money to further some bizarre ends connected with his view about the inadequacies of society which he thought required him to take steps to remedy or eradicate. The judge was required to consider whether the applicant’s being so moved to act as he did reduced the applicant’s culpability. If so, this could serve to mitigate the offence.”60
Endemic to the court’s reasoning is the ideology of just deserts or commensurate justice. According to this view, a defendant who suffers from a mental disorder has limited capacity to control his or her actions through no fault of their own. Indeed, the language used in the judgment suggests that the defendant had no real choice “being so moved to act”. A defendant with reduced capacity and culpability therefore deserves less punishment.61 A reduction in sentence is not warranted on the basis that the defendant requires treatment, although treatment may very well be required, but on the basis that they are not accountable for their conduct in the same way as a person of normal mental health.62
“To reduce a penalty otherwise appropriate on the grounds of mental infirmity on the part of the individual offender is a perfectly normal and acceptable practice if the determination of penalty is assessed from the point of view of the offender’s culpability.”63
Emphasis on the culpability of the offender has played a prominent part in modern sentencing practice. However, it has been suggested that the mere presence of a mental disorder will not necessarily equate to a discount in the sentence to be imposed. A line of authority has emerged which suggests that the mental disorder must have had some impact on the defendant’s ability to control his or her actions at the time of the offence, effectively reducing the defendant’s culpability. That is, there needs to be some “causal connection” or nexus between the mental disorder and the commission of the offence in order for a discount to be warranted –
“In our courts, merely to establish a degree of mental illness is not, of itself, sufficient to alter the sentence that would normally be appropriate for the crime in question. Though it might be thought difficult to say, with a high degree of confidence, that any one element, such as mental disorder, caused a person to behave in a particular way, there are obviously enough psychiatrists and psychologists prepared to say so.”64
A number of cases in the Queensland Court of Criminal Appeal also highlight the need for some causal connection between the mental disorder and the crime for it to be considered an important factor in sentencing. In R v Matherson,65 the court pointed out that there are two lines of authority regarding a reduction in sentence based on mental disorder. The first refers to the fact that the principle of general deterrence may require less weight, while the second relates to the fact that the disorder has in some way reduced the defendant’s culpability –
“There is authority for the proposition that where an offender suffers from a substantial degree of mental or intellectual impairment, general deterrence is still relevant in sentencing but its weight is less than it will be in a case of a person whose mental or intellectual capacity is in the normal range.66 There are other authorities which suggest that lesser moral guilt because of low intelligence and diminished responsibility is the mitigating factor.”67
In R v Dunn68 the court also focused on the issue of culpability, finding that some reduction in sentence may be warranted on the basis of the defendant’s lack of responsibility.69 Similarly, in R v Milini70 the court held that the applicant’s conduct was clearly influenced by his mental illness and therefore his culpability was diminished –
“The culpability of the applicant is less than that of the accused in those cases because his involvement in the conduct which constitutes criminal negligence was a product of his mental illness. It is recognised that psychiatric illness not amounting to insanity is relevant to sentencing by reducing the moral culpability of the offender, making it inappropriate to impose a sentence as a means of a general deterrence and reduces the relevance of specific deterrence.”71
4.4 Western Australia
Western Australian courts have accepted that the principle of general deterrence may be given less weight in the case of an offender suffering a mental disorder or intellectual disability. However, they too have indicated that this must be examined in the context of whether the disorder was a factor causing the offence. In R v Western72 the offender was a 67-year-old man who suffered from brain damage, dementia and significant cognitive impairment. He had pleaded guilty to having a sexual relationship with a girl under the age of 16 years. The court found (Wallwork J dissenting) that the sentencing judge had failed to give adequate weight to the principle of general deterrence73 –
“…it was correctly argued that for significant mitigatory weight to be attached to that condition it must be shown to have contributed to the commission of the offence or at least reduced the moral culpability of the offender.74It was argued that in this case there was not a particularly strong nexus between the offending behaviour and the mental condition of the respondent.”
Reference to the lack of connection between disorder and offence was also made in Saveka v The Queen.75 In this case Anderson J found that although the applicant suffered from a depressive illness, it was difficult to see any direct connection between the illness and offending behaviour.
4.5 South Australia
In the recently reported case of R v Maddeford,76 the South Australian Court of Criminal Appeal examined this issue at length. The court determined that in order for a reduction in sentence, there needed to be a nexus between the offender’s disorder and the commission of the offence. The respondent was convicted of armed robbery and assault with intent to resist arrest. As the sentence was being passed the respondent leapt from the dock into the body of the courtroom. He produced a previously concealed knife that he had taped to his arm, grabbed the court reporter around the neck and took her hostage. The respondent threatened to kill the court reporter and continually repeated “I’m not going to gaol”. The court reporter was detained for a number of hours and later released when the respondent surrendered. The Crown appealed against the sentence on the basis that it was manifestly inadequate. In particular, the Crown argued that the sentencing judge gave inappropriate weight to factors personal to the respondent, particularly his mental illness.
At first instance, the sentencing judge acknowledged the importance of general deterrence. However, on appeal the court found this did not appear to be reflected in the sentence itself. There was evidence before the sentencing judge that the respondent suffered from a longstanding mental disorder: although not amounting to mental incompetence, this disorder involved a state of anxiety which contributed to his distress and abnormal agitation on the day of sentencing. The sentencing judge took this fact, and the difficulties the respondent had in coping with prison life, into account.
The Court of Criminal Appeal found that the respondent’s conduct could not be treated as a spur of the moment decision caused by his disorder. While the mental disorder was a mitigating factor to some degree, the respondent acted with full knowledge of what he was doing. This was not an instance in which the respondent could be considered as a special case whose punishment would not be regarded as a useful example to others. The court applied the approach to sentencing adopted in R v Wiskich77 where the South Australian Court of Criminal Appeal addressed the impact of an offender’s mental disorder on the sentencing process. The court observed –
“The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and capacity of the offender to appreciate the gravity and the significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and NSW authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.”78
Williams J found that Maddeford’s case lay somewhere between the two extremes referred to in Wiskich. Maddeford had suffered from an obsessive compulsive disorder since the age of 16. This initially involved the repetition of routine tasks and led to him washing his hands repeatedly to avoid germs. He was eventually affected to the point where his fear of germs led him to shun contact with members of the public in the course of performing his duties as a police officer and he was transferred to other duties. It was therefore recognised that on the day of sentencing, Maddeford’s mental disorder served to heighten his anxiety. According to one report he was consumed with despair as to how he might combat the germs while in prison. The court found that Maddeford’s condition contributed to him seeking a way out of what lay ahead, however, despite his fears he had acted with full knowledge of what he was doing. Williams J held that anyone in his anxious state must be deterred from acting as he chose to do and be made aware of the severe penalty such an offence will attract.
4.6. Development of law in NSW
The principle that there needs to be some causal link between the disorder and the offence, in order for a discount in sentence to be warranted, has not always met with approval in NSW.79 The courts in NSW have recently begun to acknowledge the importance of this principle. This has often been expressed in terms of whether the offender had knowledge of his or her wrongdoing.
The relevance of a defendant’s culpability in the sentencing process was expressly addressed by the NSW Court of Criminal Appeal in R v Letteri.80 In this case the applicant suffered from an intellectual disability and was convicted of two counts of robbery in company. The court found ample authority for the proposition that when an offender suffers from a mental disorder or other abnormality, general deterrence should be given less weight than in other cases, as such an offender is not an appropriate medium for making an example of to others.81
The court indicated, however, that it was not concerned with whether the disorder or disability was a factor motivating or inducing the commission of the offence. Despite finding that in each of the earlier cases the mental illness or retardation was a factor inducing the commission of the offence, Badgery-Parker J found that this was not a necessary condition for the principle to apply.
The significance of a casual connection between the offender’s mental disorder and the commission of the crime was re-examined in R v Heather.82 In this case the applicant was found guilty of kidnapping and three counts of aggravated sexual assault on an 11-year-old girl. He had previously been admitted to psychiatric hospitals and diagnosed with a variety of mental disorders, including schizophrenia. Despite what had earlier been said in R v Letteri, Dunford J found that the relationship between the offender’s mental condition and the offence was a relevant factor to consider in sentencing and influenced the extent to which general deterrence should be reduced –
“The relationship, if any, between the mental illness or condition [sic] offender and the commission of the offence will always be a factor relevant to the culpability of the offender for the offence. But, having regard to the passage I have referred to in R v Letteri, although it is not a necessary condition for the application of the principle that the mental illness or retardation was a factor inducing the commission of the offence, I do not understand the relationship, if any, between the illness or condition and the offence as being totally irrelevant; but it is one of the factors which affects the degree to which the factor of general deterrence should be reduced in assessing the sentence.”83
In Heather the extent to which the offender’s mental disorder reduced the need for general deterrence was limited due to the lack of any connection between the disorder and the commission of the offence –
“This is a case where, in my view, having regard to the serious nature of the offences, and the limited connection between the offences and the applicant’s mental condition, serious and all as that is, I am satisfied that this is a case where general deterrence must still play a significant, albeit reduced part.”84
Newman J went even further, suggesting that the decision in R v Letteri may be in need of review. While his Honour agreed with the orders proposed and the reasons given, he saw no reason why the full weight of general deterrence should not be felt when an offender’s actions were not influenced by the mental disorder. Of particular interest is his Honour’s view that such a test may not be appropriate where the disability suffered is an intellectual disability, rather than mental illness –
“While I agree with the orders proposed, and indeed the reasons given by my brother Dunford J, I too am of the view that the principle adumbrated in R v Letteri should perhaps be the subject of review by this Court. If at the time of the commission of an offence the perpetrator’s actions were not influenced by any mental illness which he or she may suffer, I see no reason why a sentence passed upon that person should not give full weight to considerations of general deterrence. Perhaps I distinguish the case of mental illness from that of mental retardation in this respect. However, I agree this case does not seem to be an appropriate one for such a review to take place.”85
The issue of whether there needs to be some causal connection between the mental disorder and the commission of the offence was also explored in R v Engert.86 In this case, the appellant pleaded guilty to an offence of homosexual intercourse with a male over the age of 10 and under the age of 18. The appellant suffered a mental disorder and had prior convictions for committing similar acts of indecency. The case raised similar questions to those addressed in Veen v The Queen (No 2),87 such as the protection of society, deterrence of the offender and others, retribution and reform. Gleeson CJ found that while the mental illness suffered by the appellant warranted sympathy, the real question for the court was whether there should be a discount in the sentence to be imposed.
According to Gleeson CJ, the existence of a causal relationship between the mental disorder and the commission of the offence in a particular case does not automatically result in a lesser sentence. Indeed, in the present case there was no evidence of such a causal relationship. His Honour found that when sentencing an offender with a mental disorder, there will be times when general deterrence should be given little weight, however, ultimately it is a matter of balancing all the relevant considerations. In reviewing the relevant case law he found there was some authority to suggest that the principle regarding the weight to be given to general deterrence only applies in cases where the mental disorder is causally related to the commission of the offence. However, his Honour highlighted the need to look at all the circumstances of the particular case, rather than simply applying a blanket rule to all situations –
“In truth however…the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to the circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.”88
Allen J found that the principles to be taken into account in determining the weight to give to general deterrence are no different, in respect of a mental disorder, than for any other characteristic suffered by an offender that might make it inappropriate to pass a sentence carrying the full weight of general deterrence, such as physical disability or illness suffered after the commission of the offence.89 However, it is respectfully suggested that physical illness or disability is not to be considered in the same way as mental disorders when determining the weight to be given to general deterrence. His Honour appears to be confusing this issue with considerations of “mercy” or “sympathy”. Physical health, such as disease or disability, is often taken into account in sentencing on the basis that it will make the offender’s incarceration more burdensome and, subsequently, a lesser sentence may be more humane.90 In terms of desert theory, the sentence should be determined primarily by reference to the circumstances existing at the time of the offence. Reduction in sentence thereafter is generally based on principles of mercy, or utilitarian considerations.
4.7 Knowledge of wrongdoing
There is case law to suggest that even where there is some nexus between the disorder and the commission of the offence, this will not necessarily reduce the weight to be given to general deterrence if the offender knew that his or her conduct was unlawful. In R v Wright91 the Crown appealed against the leniency of the sentence imposed on the respondent for armed robbery. According to the respondent he heard voices and said that a small man with a beard told him to do things and would punish him if he did not comply. At the time of the offence he was not taking the prescribed medication for his hallucinations and had been smoking marijuana.
The Court of Criminal Appeal found that the sentencing judge was in error in treating the psychotic state and intoxication as a matter mitigating the offence. Hunt CJ at CL found that the respondent’s criminal history demonstrated that, by his recklessness in bringing on these psychotic episodes, he was a continuing danger to the community, thereby reducing the mitigation he would have otherwise received for his medical condition. According to Hunt CJ at CL –
“[I]f the offender acts with the knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.”92
Alternatively, it may be difficult to demonstrate that there is any particular relationship between the person’s mental condition and a pattern of behaviour.93 In R v Bus,94 the court was asked to consider whether less weight should be given to the principle of general deterrence when the accused suffered an intellectual disability and was convicted of a number of sexual offences in company all involving the same 17 year old girl. Hunt CJ at CL stated that when sentencing a person with a mental disorder or intellectual disability, considerations of general deterrence are not rendered completely irrelevant. The significance of the offender’s mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. In the present case his Honour found that there was nothing in the evidence to suggest that despite the offender’s low intellectual functioning he was under any disadvantage in understanding that what he was doing was against the law –
“The reason for the principle is that the interests of society do not require such a person to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. It was submitted that the cases stating those propositions were wrongly decided, but I do not agree.” 95
5.Should the same test be applied to mentally disordered and intellectually disabled offenders?
Within the criminal justice system, a strange anomaly has occurred in that offenders with a mental condition and offenders with an intellectual disability are often dealt with according to the same principles. In the recent case of R v Mailes96 the Court of Criminal Appeal highlighted the overlap in the treatment of mentally disordered persons and those with an intellectual disability in the context of an accused’s fitness to be tried. Wood CJ at CL found that at common law the distinction between the deaf-mute, who was unable to plead, and the insane defendant who could not plead sensibly, had become somewhat blurred.97 As illustrated by Mailes, Part 2 of theMental Health (Criminal Procedure) Act 1990 (NSW) also fails to deal with this distinction, and is silent as to what constitutes unfitness and to whom the legislation applies. In light of this gap in the legislation, the legislative history and common law, the court found that the Mental Health (Criminal Procedure) Act should not be read down so as to exclude the intellectually disabled.
The decision in R v Mailes highlights the failure of both the courts and the legislature to comprehensively address the key differences between offenders with an intellectual disability and those suffering a mental illness. Similarly, within the case law, there appears to be little distinction made between the sentencing of mentally disordered offenders and those who suffer from an intellectual disability. According to Professor Fox –
“There is no principle that directs that greater mitigative weight in sentencing be given to psychosis than neurosis or less to psychopathy than to retardation.”98
Clearly, the same principles that apply to sentencing mentally disordered offenders will not always be appropriate for offenders with an intellectual disability. The NSW Law Reform Commission canvassed the unique problems encountered by intellectually disabled people from arrest to trial, including issues of fitness and the defence of mental illness.99 It also made a number of recommendations regarding the sentencing of intellectually disabled offenders, particularly in relation to the availability of pre-sentence reports. An accurate assessment of an offender’s mental state is of crucial importance to the sentencing officer when deciding the principles to be applied in sentencing. Professor Susan Hayes has also advocated using pre-sentence reports for intellectually disabled people to ensure that the courts treat them fairly and appropriately –
“It is important to distinguish intellectual disability from mental illness, because the legal implications and possible sentencing dispositions may differ for the two groups. A mentally ill person suffers from a serious psychological disorder, which seriously affects his or her personality functioning, behaviour, and perception of the environment, and which in legal terms, may involve a threat to themselves or to others. The differential diagnosis is sometimes difficult, and must be made after a meticulous process of history taking, assessment and observation by health professionals experienced in the area of psychiatric illness and intellectual disability. The situation can be further confused by the fact that intellectually disabled people may also suffer from psychiatric illness or behavioural disturbance, and are thus ‘dually diagnosed’.”100
Although the courts have traditionally sought to apply the same sentencing principles to intellectually disabled and mentally disordered offenders, this may not always be appropriate. Indeed, it is in those cases involving an intellectually disabled offender that a divergence of opinion has evolved concerning the need for a causal connection. The NSW cases do not require that intellectual disability be proved as a factor inducing the commission of the offence in order for the sentencing officer to give less weight to the principle of general deterrence.
Rather, the cases involving intellectually disabled people merely focus on the principle that less weight should be given to general deterrence on the basis that an offender is an inappropriate medium to make an example of to others. According to Hayes and Craddock, the South Australian Court of Criminal Appeal’s approach to the same issue, is “possibly more realistic in recognising intellectual disability as a mitigating factor, but only if it reduced moral blameworthiness”.101
Applying the principle that there needs to be some causal connection between the disorder and the offence may be inappropriate in cases involving a person with an intellectual disability. It may be impossible to prove that there was a connection between an intellectual disability and the commission of an offence, particularly where a crime is very grave. In addition, it may be repugnant to the community to have a principle based on a premise that an intellectual disability per se can cause a person to commit crime. Rather, an enquiry, based on whether it was within the defendant’s knowledge that their conduct was unlawful, such as presently exists in NSW, would seem to be a more appropriate test to apply.
Authority on whether there needs to be some causal connection between an offender’s mental disorder and their offence in order for a mitigation in sentence to be warranted is not uniform across all jurisdictions. From the case law in NSW it appears that the existence of a causal relationship between the offender’s mental disorder and the offence may be taken into account to reduce the weight to be given to general deterrence, but this is not a necessary condition for the principle to apply. Each case must be looked at on its individual circumstances. There is also some authority to suggest that even where the offender suffers from a mental disorder or intellectual disability the weight to be given to general deterrence should not necessarily be reduced if the offender knew that what he or she was doing was wrong.
Finally, even where a causal link is established and there are good grounds for mitigating the sentence, regard must always be had to the application of other principles of sentencing. In particular, the court should also have regard to the protection of the community. Thus, while at common law, the sentence should never exceed the penalty that is commensurate with the seriousness of the offence, an assessment of the risk that the offender presents to the community may persuade the sentencing judge or magistrate to moderate any reduction of penalty that might otherwise flow by reason of the offender’s mental condition or infirmity. Where there are grave concerns as to the control the offender has over his or her actions, little prospect of rehabilitation and a history of violence, very little leniency may be extended to the offender. Such an assessment will rely on a careful balancing exercise of the different objectives of sentencing and must be determined in the full context of the offence and the offender.
1 This paper does not purport to cover means of disposal other than sentencing, such as disposal under the Mental Health (Criminal Procedure) Act 1990 (NSW), Part 3.
2 NSW Law Reform Commission, Report No 80, People with an Intellectual Disability and the Criminal Justice System, 1996; Human Rights and Equal Opportunity Commission, Human Rights & Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness, 1993, Australian Government Publishing Service; I Potas, Just Deserts for the Mad, 1982, Australian Institute of Criminology.
3 V Walker, “The forgotten ones”, The Australian, 29 April 2002; P Toohey, “The man the law can’t jail”, The Australian, 10 April 2002; P Toohey, “Anger at release in knife hearing”, The Australian, 10 April 2002.
4 Mental Health (Criminal Procedure) Act 1990 (NSW), Part 4, which commenced 3 September 1990.
5 Crimes Act 1900 (NSW), s 23A. The defence of diminished responsibility was repealed and reformulated as the defence of substantial impairment by the Crimes Amendment (Diminished Responsibility) Act 1997 (NSW), commencing 3 April 1998.
6 A hospital order may be passed by way of sentence under the Sentencing Act 1991 (Vic), s 93(1).
7 In the recent case of R v Maddeford (2001) 120 A Crim R 497, discussed in detail below, the South Australian Court of Criminal Appeal adopted this approach.
8 See the Crimes (Mental Disorder) Amendment Act 1983, which inserted Parts 11A and 11B into the Crimes Act 1900 (NSW). These legislative changes were prompted by general dissatisfaction with the previous system whereby a person who was found unfit to be tried was kept in indeterminate detention “at the Governor’s Pleasure”. “At present, if an accused person is found unfit to plead, the trial judge, in virtually all cases, will order that the accused be kept in strict custody in such place and manner as the judge thinks fit. This means detention in a mental hospital or prison. The major weakness in the present system is that a person may be detained indefinitely without having the opportunity to present a defence case. In particular, if a person is mentally retarded, he or she may never become fit in the future so as to come before a court for trial. He or she may never get out, in effect.” Honourable Mr Brereton, NSW Parliamentary Debates, Hansard, Legislative Assembly, 24 November 1982 at 3005. The Crimes (Mental Illness) Amendment Act 1986 also altered the terminology used and amended s 428W of the Crimes Act 1900 concerning the definition of mental condition, to ensure that those persons who were not considered to be mentally ill under the Mental Health Act, but who suffered from an abnormal mental condition could receive treatment where they consented.
9 The definition of mental illness is found in the Mental Health Act 1990 (NSW), Schedule 1:
“‘mental illness’ means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).”
10 See the Mental Health Act 1990 (NSW), s 9(1):
“A person is a mentally ill person if the person is suffering from a mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment and control of the person is necessary:
(a) for the person’s own protection from serious harm, or
(b) for the protection of others from serious harm.”
11 See the Mental Health Act 1990 (NSW), s 10:
“A person (whether or not the person is suffering from a mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:
(a) for the person’s own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.”
12 In addition, it is important to note that while Part 3 of the Mental Health (Criminal Procedure) Act 1990 (Proceedings before a Magistrate) explicitly refers to “developmentally disabled” offenders with regard to issues of fitness, this Act does not apply to issues of sentencing post conviction. Moreover, while Part 3 deliberately includes a reference to the “developmentally disabled” the Act otherwise fails to mention the developmentally disabled.
13 For further reading, see A Ashworth, Sentencing and Criminal Justice, 1995, 2nd edition, Butterworths; R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, 1999, 2nd edition, Oxford University Press, Chapter 3.4.
14 I G Campbell, “Justice and utility in sentencing: Gascoigne revived?” (1981) 12(1) The University of Queensland Law Journal 43.
15 R G Fox, “The killings of Bobby Veen: The High Court on proportion in sentencing” (1988) 12 Criminal Law Journal 339 at 352.
16 Human Rights and Equal Opportunity Commission, op cit n 2, Chapter 1.
17 The use of indeterminate sentences to incapacitate offenders considered to be dangerous to the community is available in most Australian States and in other common law countries: see Sentencing Act 1991 (Vic), s 18A;Sentencing Act 1995 (WA), s 98; Penalties and Sentences Act 1992 (Qld), s 163; Sentencing Act (NT), s 65(2); Criminal Justice Act 1991 (UK), s 2(b); Canadian Criminal Code, s 753(4). For an overview of legislative developments in other countries see also John Howard Society of Alberta, “Dangerous offender legislation around the world” (1999) at http://www.johnhoward.ab.ca/PUB/C20.htm and Anne-Marie McAlinden, “Indeterminate sentences for the severely personality disordered” (2001) Criminal Law Review 108.
18 Fox, op cit n 15 at 352.
19 See generally, I Potas, Sentencing Manual: Law, Principles and Practice in New South Wales, 2001, Law Book Company, Sydney, pp 2-22.
20 In his dissenting judgment in R v Williscroft  VR 292 Starke J favoured rehabilitation as the primary goal of sentencing, both for its benefit to the individual and its utilitarian value to the community. He stated at 303-304: “Retribution as an element of punishment has by now, in my opinion, disappeared, or practically disappeared from our criminal law. It is often taken for granted that if leniency for the purpose of rehabilitation is extended to a prisoner when the judge is passing sentence, that this leniency bestows a benefit on the individual alone. Nothing, in my opinion, is further from the truth. Reformation should be the primary objective of the criminal law. The greater success that can be achieved in this direction the greater the benefit to the community.”
21 In R v Rushby  1 NSWLR 594, Street CJ held that the chief purpose of criminal law is deterrence, both general and specific. He quoted from the well-known passage from R v Radich  NZLR 86: “…one of the main purposes of punishment, …is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.”
22 R v Channon (1978) 20 ALR 1.
23 M Bargaric, “Sentencing: The road to nowhere” (1999) 21(4) Sydney Law Review 597.
24 Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.
25 Section 21A(1) states that in determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case. Section 21A(2) directs that the court must take into account a number of factors, including:
“(f) the need to deter the offender or other persons from committing an offence of the same or a similar character,
(g) the need to protect the community from the offender,
(h) the need to ensure that the offender is adequately punished for the offence,
(i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender,
(j) the prospect of rehabilitation of the offender.”
26 Ashworth, op cit n 13, p 61.
27 “Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender’s psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period.” R v Channon (1978) 20 ALR 1 at 4-5 per Brennan J, quoted in R G Fox, “Sentencing the mentally disordered offender” (1986) 60 Law Institute Journal 416 at 417.
28 (1975) 61 Cr App R 320.
29 “The first thing to be said, and said very firmly indeed, is that Her Majesty’s Courts are not dustbins into which the social services can sweep difficult members of the public. Still less should Her Majesty’s judges use their sentencing powers to dispose of those who are socially inconvenient. If the courts became disposers of those who are socially inconvenient the road ahead would lead to the destruction of liberty. It should be firmly understood that Her Majesty’s judges stand on that road barring the way. The Courts exist to punish according to the law those convicted of offences. Sentences should fit the crimes.” Cited in Fox, op cit n 27 at 421; see also Potas, op cit n 2, p 112.
30  Qd R 539.
31 Campbell, op cit n 14 at 44; see R v Gascoigne  Qd R 539 at 545: “[B]ut the sentence imposed is to be in respect of and related to the offence committed; it is punishment for that offence; only within this field is criminal punishment to be used for this purpose because, by reason of mental illness, the prisoner is a menace when at large. Such protection must be left to other appropriate authorities.”
32 (1988) 164 CLR 465.
33 Fox, op cit n 15 at 358.
34 (1988) 164 CLR 465.
35 (1979) 143 CLR 458.
36 (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ.
37 Fox, op cit n 15 at 347.
38 (1988) 164 CLR 465 at 473 per Mason CJ, Brennan, Dawson and Toohey JJ.
39 Ibid at 495 per Deane J: “[T]he protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts.” For a further discussion of this issue in Victoria, see C R Williams, “Psychopathy, mental illness and preventive detention: Issues arising from the David case” (1990) 16(2) Monash University Law Review 161. For an overview of indeterminate sentencing options in the UK, see A Ashworth and L Gostin, “Mentally disordered offenders and the sentencing process” Criminal Law Review 195.
40 Campbell, op cit n 14 at 43-44.
41 See K Freeman, “Mental health and the criminal justice system” (1998) 38 Crime Justice Bulletin 4.
42 There are a number of specific personality disorders, including paranoid personality disorder, schizoid personality disorder, antisocial personality disorder, borderline personality disorder, narcissistic personality disorder and avoidant personality disorder. These are often characterised by a pattern of behaviour and experience that markedly deviates from accepted norms. To the author’s knowledge there is no NSW case law which attempts to define what is an accepted personality disorder for the purposes of sentencing.
43 Section 38 of the Mental Health (Criminal Procedure) Act 1990 (NSW) provides a statutory basis for the defence of mental illness: “If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.”
44 See n 9; see also the Mental Health Act 1990 (NSW), ss 9 and 10.
45 Also note the following exchange reported in R v Mailes (2001) 53 NSWLR 251 at 262, where the offender was intellectually disabled and questions of fitness arose. “Mr. Golding: What does unfit mean? Mr. Mailes: Forensic patient, not guilty, mentally ill. He then added: I don’t want to be a forensic patient, I want to go home. Mr. Golding: What do the doctors want to do. Do they like you? Mr. Mailes: No, they want to lock me up. If I’m made a forensic, I’ll be in for 3 years.”
46 See the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(i).
47 See the comments of Lush J in R v Mooney (unrep, 21/6/78, Vic CCA), where the court found that the common law defence of insanity could probably have been made out on the defendant’s behalf. As the defence was not taken, the court could not deal with the defendant on this basis. Rather the court must proceed on the basis that the offender has accepted legal responsibility for the offence whether by plea or verdict: cited in R v Anderson(1979) 2 A Crim R 379 at 384.
48 For an example of disorders raised, see R v Smallbon  NSWCCA 27 where the court was asked to consider whether the sentencing officer failed to take into account the defendant’s mental disorder, being a gender disorientation; see also R v Bowker (unrep, 31/8/93, NSW CCA), where the defendant suffered from Munchausen’s disease by proxy.
49 Fox, op cit n 27 at 417.
50 (unrep, 21/6/78, Vic CCA); see  2 Crim LJ 351 for case note and comment.
51 Cited in R v Anderson (1979) 2 A Crim R 379 at 383.
52 (1989) 41 A Crim R 22.
53 Ibid at 25-26 per Murphy J: “In our opinion, his Honour proceeded without error…Personal deterrence was properly seen by his Honour to be inappropriate, as the evidence strongly indicated. In our view, the respondent was not an appropriate subject for general deterrence. The High Court in Veen (1979) 143 CLR 458, has ruled that preventive detention as such cannot be justified on its own account.”
54 (1991) 56 A Crim R 81. The principle that less weight may be given to general deterrence where the offender suffers from a mental disorder or intellectual disability has also been applied in R v Champion (1992) 64 A Crim R 244 and R v Sukjai-Crawshaw (unrep, 3/6/93, NSWCCA).
55 Ibid at 85.
56 See eg R v Smith (1958) 75 WN (NSW) 198.
57 R v Kocan  2 NSWR 565.
58  NSWCCA 255 at .
59 (1990) 50 A Crim R 79.
60 Ibid at 83.
61 Fox, op cit n 15 at 360.
62 See R v Kiltie (1974) 9 SASR 452 where Bray CJ said: “I think these must be mitigating factors. There are several purposes of punishment and several principles to be observed in sentencing, but it would be a bad day for the criminal law if the degree of moral guilt of the particular defendant in the dock were to be treated as irrelevant. The law, and above all the criminal law, should not get too far out of touch with the general feelings of the community and punishment should bear some relation to desert. The purpose of the law is to give every man his due, says the celebrated maxim of Roman law, and Salmond adds that the civil law gives to the plaintiff, the criminal law to the defendant, what he deserves….”. See also R v Masolatti (1976) 14 SASR 124 at 129.
63 I Potas, “Sentencing the mentally disordered offender in Australia” (1981) 4 International Journal of Law and Psychiatry 107 at 118.
64 Fox, op cit n 27 at 418.
65 (unrep, 12/3/94, QCA, Davies, McPherson and Mackenzie JJA).
66 R v Roadley (1990) 51 A Crim R 336; R v Scognamiglio (1991) 56 A Crim R 81; R v Champion (1992) 64 A Crim R 244.
67 R v Kiltie (1974) 9 SASR 452; R v Masoletti (1976) 14 SASR 124.
68 (unrep, 13/5/94, QCA, Pincus JA, McPherson JA, Mackenzie J).
69 “For a sentencing tribunal the applicant thus presents a real difficulty, the more so as, apart from imprisonment, there is no system or establishment in the State that caters for persons whose criminal conduct is in part the result of a mental condition, which, while falling short of insanity, renders them somewhat less than fully responsible for their actions.” R v Dunn (unrep, 13/5/94, QCA, Pincus JA, McPherson JA, Mackenzie J).
70  QCA 424 (McPherson JA, Chesterman and Douglas JJ).
71 Ibid at  per McPherson JA; see also R v Smith  QCA 430, where the Court (de Jersey CJ, Chesterman and Mullen JJ) reinforced that mental illness which partially explains offending conduct reduces the moral culpability of the offender. Despite the evidence given by the psychiatrist who examined the applicant, that the depression was part of a causal chain affecting the offending behaviour, the Court found there to be no evidence of the depressive condition prior to the commencement of the offending conduct.
72  WASCA 194 (Wallwork, Steytler and Miller JJ).
73 Ibid at  per Miller J.
74 Watson v The Queen  WASCA 119 per Malcom CJ at ; Miller v The Queen  WASCA 66 per Pidgeon J at .
75  WASCA 312.
76 (2001) 120 A Crim R 497.
77 (2000) 207 LSJS 431.
78 R v Maddeford (2001) 120 A Crim R 497 at 502, citing R v Wiskich (2000) 207 LSJS 431 at 457.
79 Simpson J gave the most comprehensive overview of the development of law in NSW in R v Fahda  NSWCCA 267.
80 (unrep, 18/3/92, NSW CCA).
81 Ibid: “The principle then is clear enough. It is correctly stated as follows – that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.”
82 (unrep, 1/8/95, NSW CCA).
83 Ibid at 3 per Dunford J.
84 Ibid at 4 per Dunford J.
85 Ibid at 4 per Newman J.
86 (1995) 84 A Crim R 67.
87 (1988) 164 CLR 465.
88 R v Engert (1995) 84 A Crim R 67 at 71.
89 Ibid at 72: “Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: ‘Well, you would not expect him to get the same sentence as someone else.’ In that respect there is no difference at all between mental disability and other personal characteristics or personal conditions which would attract sympathy. Assume, for example, that an offender is perfectly able mentally in all respects but, after the commission of the offence, he has become a quadriplegic as a result of a car accident, or he has contracted some dreadful disease which is in the process of shortening his life. In those circumstances the same considerations of how members of the community would perceive the sentence would apply as in the case of mental disorder.”
90 The state of health of an offender is always relevant to the consideration of the appropriate sentence: R v Smith (1987) 44 SASR 587 at 589 per King CJ. As well as the risks associated with an offender’s medical condition, the realities of prison life should not be overlooked in the exercise of the sentencing discretion: R v Burrell  NSWCCA 262 at  per Mason P; see also R v L (unrep, 17/6/96, NSW CCA); R v Miranda  NSWCCA 89 at .
91 (1997) 93 A Crim R 48.
92 Ibid at 51.
93 Ashworth and Gostin, op cit n 39 at 197; see also R v Dole  VR 754 discussed in Fox, op cit n 27.
94 (unrep, 3/11/95, NSW CCA).
96 (2002) 53 NSWLR 251.
97 Ibid at  per Wood CJ at CL: “… it appears that this early distinction became somewhat blurred, one commentator (D Grubin, “What constitutes fitness to plead?”  Criminal Law Review 748 at 751) observing:’…. prior to Dyson and Pritchard, a clear distinction was made between defendants who were mentally defective and those who were insane in respect of their fitness to plead. Neither was in a position to have a fair trial; in the former case, trial should not take place as the accused did not have the faculty to understand what was going on, while in the latter the trial should be postponed, not cancelled, because the accused was temporarily unable to use whatever faculties he did have to defend himself adequately. This critical distinction, established by Hale and Keynon was lost in Dyson and Pritchard and has yet to be recovered.'”
98 Fox, op cit n 27 at 417.
99 NSW Law Reform Commission, Report No 80, op cit n 2; see also NSW Law Reform Commission, Discussion Paper No 35, People with an Intellectual Disability and the Criminal Justice System: Court and Sentencing Issues, 1994, which discusses the law applicable to sentencing intellectually disabled offenders.
100 S Hayes, “Intellectual disability…legal inability” (1993) 4 Polemic 49; for further discussion of the failure to distinguish between intellectually disabled and mentally disordered offenders, see S Hayes, The Accused with an Intellectual Disability – Fitness and Sentencing, Paper presented at the Public Defenders Seminar, 14 May 1992.
101 See NSWLRC Discussion Paper 35, op cit n 99 at 11.6.
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