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Mental Impairment: A relevant defence in criminal court cases

By Peter Ward

An accused’s mental state, either at the time of sentencing or at the time of the commission of the criminal offence, can be a significant sentencing factor.

A causal relationship between the offending and the impairment is significant for a consideration of the impact on moral culpability and deterrence. It is significant to point out that impaired mental functioning may be relevant to sentence, whether the condition was present at the time of the offence, or only at the time of sentence.

It is imperative that a criminal lawyer, in dealing with a person charged with a criminal offence, clearly ascertains whether a person is suffering from a mental illness. In many cases, a mental illness may have a direct causal link to the commission of the offence, for which the person has been charged.

The issue was considered in the Queen v Verdins. This decision was handed down on 25 July 2006 in the Court of Appeal.

The following is a summary of the major points raised by the Court of Appeal.

As raised by the Court of Appeal, impaired mental functioning, whether temporary or permanent, is relevant to sentencing in the following six ways:

• the mental condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. When that is so, the condition affects the punishment that is just in all the circumstances, and the denunciation is less likely to be a relevant sentencing objective;

• the condition may have a bearing on the kind of the sentence that is imposed and the conditions in which it should be served;

• whether general deterrence should be moderated or eliminated as a sentencing consideration depends on the nature and severity of the symptoms exhibited by the criminal offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;

• whether specific deterrence should be moderated or eliminated as a sentencing consideration, likewise depends upon the nature and severity of the symptoms of the conditions as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending, or at the date of sentence or both;

• the existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person of normal health;

• where there is a serious risk of imprisonment having a serious, adverse effect on the offender’s mental health, this will be a factor leading to mitigate punishment.

The courts in recent times have expressed the view that in order for an accused to rely on any of the principles set out in Verdins there must be an evidentiary basis upon which the court can act. This may require calling expert evidence.

If the mental condition can be established, this can have a material effect on the sentence imposed by the court. Meticulous preparation is required by the criminal lawyer, and all efforts should be made to obtain psychological, psychiatric and/or medical reports.

The production of thorough medical material can greatly assist a sentencing court in determining what sentence should be imposed.

Galbally & O’Bryan Lawyers have vast experience in preparing pleas in criminal mitigation. A thorough presentation of the appropriate medical material can be of great assistance to an accused person charged with a criminal offence.

For further information contact Peter Ward on 03 9200 2533 or by email to assist you in these matters.