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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 12 November 2010

List of Sub-headings:

Sentencing Persons With a Mental Condition under the Crimes Act 1914 (Cth)
- Definition of Mental Condition
Scope of s 16A(2)(m)
- Mental Condition as a Mitigating Factor
--- Mental Condition and Culpability
--- Mental Condition and the Effect of a Custodial Sentence
- Mental Condition and Rehabilitation

Commentary on Sentencing Persons With a Mental Condition under the Crimes Act 1914 (Cth)

Section 16A(2)(m) requires a court to take into account various factors personal to the offender including mental condition:

Note: Part IB, Division 9 of the Crimes Act 1914 (Cth) details different schemes available to courts sentencing federal offenders with a mental illness and an intellectual disability. For further information see federal commentary:

• Hospital Orders;
• Psychiatric Probation Orders; and
• Program Probation Orders.

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Definition of 'Mental Condition'

The Crimes Act 1914 (Cth) does not define 'mental condition', 'mental illness' or 'intellectual disability'.

The definition of ‘mental condition’ in s 16A(2)(m) was considered at length in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.

McClellan CJ at CL addressed the difficulty of defining 'mental condition', mental condition' and 'intellectual disability'.[1]

McClellan CJ at CL (with whom Simpson J and Barr AJ agreed on this point) held that despite an absence of legislative clarity, all aspects of an offender’s mental health and capacity must be considered when sentencing for a federal offence. McClellan CJ at CL stated at [171]:

Although an amendment which clarified the position would be advisable, the common law deals with the present situation. In DPP (Cth) v El Karhani (1990) 51 A Crim R 123, this Court determined (at 378) that the ss 16A and 16B catalogue of matters to which a court must have regard when sentencing a person for a federal offence is not comprehensive and further, that Part 1B is not exhaustive: see Putland at 181. The obvious example is the omission from s 16A(2) of any reference to general deterrence. The same reasoning would require the court to have regard to a person’s mental health or mental capacity. Whether because they are within the meaning of “mental condition” in s 16A(2)(m) or because they are required to be considered by the common law, all aspects of an offender’s mental health and mental capacity must be considered when sentencing that person.

Justice Simpson, adding to the reasons of McClellan CJ at CL, made the following observation with which McClellan CJ at CL and Barr AJ agreed:

In my experience, as a sentencing judge, and having observed sentencing practices from this Court, distress and anxiety, referable to the anticipated sentencing process, will be taken into account – where demonstrated. It will not be presumed. To fail to take it into account, where there is relevant accepted evidence, would, in the case of federal sentencing, be contrary to s 16A(2)(m). The weight to be accorded to such evidence will vary from case to case.[2]

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Scope of s 16A(2)(m)

‘In circumstances where mental illness is not sufficient to constitute a defence, it remains a relevant consideration in the sentencing process’: R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, [48].

Case law reflects a clear tension in regard to how a mental condition factors into the sentencing process.

In R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, [53], Beazley JA (with whom Howie J agreed) extracted the following paragraph from Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433, 436-437. In Channon, Brennan J identified the varying ways in which an offender’s mental condition may influence sentencing:

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. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe.

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Mental condition as a mitigating factor

Courts have identified a number of circumstances in which an offender’s mental condition may have a mitigating effect on the sentence imposed.

In R v Verdins [2007] VSCA 102; (2007) 169 A Crim R 581, the Victorian Court of Appeal reformulated sentencing principles first expressed in R v Tsiaras [1996] 1 VR 398, 400. These principles have been cited in subsequent federal sentencing decisions: Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, [52]; R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, [56]; R v Atik [2007] VSC 299, [38]; R v Kent [2009] VSC 375, [40].

The Court in Verdins stated at [32] that the condition may be relevant in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. (See below).


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


3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms 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. (See federal commentary ‘General Deterrence’).


4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition 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 the sentence or both. (See federal commentary ‘Specific Deterrence').


5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. (See below).


6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

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Mental Condition and Culpability

An offender’s moral culpability may be reduced if they have a mental condition which, while falling short of an excuse at law, contributes to the commission of the offence: R v Pham [2005] NSWCCA 314, [35].

In R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, [48], Beazley JA extracted the following passage from R v Israil [2002] NSWCCA 255:

To the extent that mental illness explains the offence ... then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.

Moral culpability is affected by the contribution made by the mental condition to the commission of the offence. In Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, Steytler P (with whom McLure JA agreed) indicated at [53] that:

…the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. To the extent that there is a moral lessening of culpability, that should be reflected in the penalty imposed…

See also R v Lappas [2003] ACTCA 21; (2003) 139 A Crim R 77, [125]; R v Atik [2007] VSC 299, [38].

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Mental Condition and the Effect of a Custodial Sentence

In the case of an offender with a mental condition, particular consideration must be given to the effect of any custodial sentence on that person: R v Pham [2005] NSWCCA 314, [35]; R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436, [50].

For example, in R v Kent [2009] VSC 375, the offender pleaded guilty to one count of being a member of a terrorist organisation and one count of making a document connected with preparation for a terrorist act. Bongiorno JA, at [41], observed that:

The fact that Kent is currently suffering a psychiatric disorder…makes it appropriate to take into account the probable conditions under which he will serve his sentence and the effect of those conditions on his psychological state.

See also R v Atik [2007] VSC 299, [38].

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mental condition and rehabilitation

The rehabilitative prospects of an offender suffering from a mental condition may be considered in sentencing. However, courts should remain conscious of s16A(2)(n), which refers specifically to the offender’s prospect of rehabilitation.

See further: Rehabilitation.

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Footnotes

[1] Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, [165]-[166].

[2] Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, [280]. The observations of Simpson J were agreed with by McClellan CJ at CL at [180], and Barr AJ at [315].