Mental illness and sentencing in New South Wales

• Published date: 24 September 2021
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Criminal Law, Crime
• Law Firm: Lamont Law

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...