The correlation between those suffering from mental health conditions and those implicated in the criminal justice system is irrefutable. This unique intersection is well documented and has extensive impacts, ranging from potential defences for an offender suffering from a psychiatric condition that has triggered a ‘mental impairment’, to impacts on sentencing for those found guilty of an offence. The longstanding and continued overrepresentation of those suffering from psychiatric conditions within the justice system raises further questions as to whether our justice system truly prioritises rehabilitation for suffering offenders. This article will explore these pertinent issues.
Mental Impairment – Fitness & Defences
Foremost, the law recognises that mental illnesses should be considered when a person is tried for a crime. This is evidenced in Victoria by the establishment of the Crimes (Mental Impairment) Act 1997 (‘CMIA’). This legislation established several laws that must be followed if an offender person presents with a diagnosed mental impairment. Depending on the severity of the condition, an offender may be found unfit to stand trial. In accordance with section 6 of the CMIA, a person is unfit to stand trial for an offence if, because the person’s mental processes are discorded or impaired, the person is, or at some time during trial will be, unable to understand the nature of the charge; or, unable to enter a plea/challenge jurors or the jury; or, unable to understand the nature of the trial; or, unable to follow the course of the trial; or, unable to understand the substantial effect of the evidence; or, unable to give instructions to their legal representative. Given there is a presumption that an offender is fit to stand trial, this is a very high threshold to meet and is to be determined on the balance of probabilities by a jury.
Additionally, section 20 of the CMIA establishes a defence for offenders who were suffering from a mental impairment at the time of the alleged offending. This requires the offender to establish that at the time of the offence they were suffering from a mental impairment that had the effect that a) the offender did not know the nature and quality of the conduct; or b) the offender did not know the conduct was wrong. It should be noted that this defence only applies to those suffering from recognised mental impairments. These include schizophrenia, brain injuries and trauma-based disassociation. Whilst conditions such as depression and anxiety are commonly prevalent amongst offenders, these conditions are not categorised as ‘mental impairments’, and therefore cannot be relied on to substantiate a mental impairment defence. However, they will likely be a relevant consideration when a Judge is sentencing.
The Impact of Mental Illness Upon Sentencing
Psychiatric conditions are often considered by Judges’ when sentencing offenders. In the renowned case of 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. They state that mental impairment could:
- Reduce the offender’s moral culpability 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 impose 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 impairment and how this 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 a 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.
These considerations are tendered extensively by criminal defence teams by way of mitigation in pleas. Given the significant impact that such conditions can have on a sentencing outcome, it is typical for defence lawyers to engage with expert forensic psychologists to assess and provide reports on their clients. These reports can help the court in assessing what impact the offender’s mental illness had on their offending, and the likely impact that sentence will have on their rehabilitation. In cases where an offender presents with a mental illness, it is imperative to engage experienced forensic experts.
Societal Impacts – Rehabilitation & Recidivism
Given the prevalence of mental illness amongst criminal offenders, rehabilitation is a crucial determinant in sentencing. Judges will commonly order that an offender seek treatment. Such treatment orders are commonly required for both custodial and non-custodial sentences. Whilst services such as Forensicare offer a plethora of treatment options for offenders suffering mental conditions, it is evident that more is required to effectively address offenders suffering from mental illnesses. This is demonstrated by a high level of recidivism in Victoria, with 37% of incarcerated offenders returning to prison within two years (between 2021-2022). This indicates that more is needed to properly treat and rehabilitate mentally unwell offenders.
How Galbally Parker can Help those with Mental Illness who have Been Charged
If you, or someone you know, is suffering from a mental illness and has been implicated in a criminal offence, you will need an expert criminal lawyer to help assess your options. The lawyers at Galbally Parker have experience and expertise in matters involving mental impairment/illness, whether that be running a defence based on mental impairment or preparing a plea. Contact us today to discuss your options. Our team has expertise in a number of legal areas including assault, criminal damage, customs offences, intervention orders, and murder.
