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Mental Illness and Sentencing
Mental Illness and Sentencing
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.
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]
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.
Although, it has recently been remarked that none of these principles are
stated as absolute but rather they “direct attention to considerations that
experience has shown commonly arise in such cases. There is, however, no
presumption.”[4] Each particular matter will turn on the facts.
Objective seriousness and moral culpability:
The mental condition of the offender at the time of the offence is a critical
component of moral culpability, which in turn affects the assessment of the
objective seriousness of the offence.[6]
“To the extent that mental illness explains the offence…then an offender’s
ability 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.”[7]
Prospects of rehabilitation:
General deterrence:
Ordinarily, the court factors in that the sentence imposed on the offender
should also send a message to the public at large – it should be a future
deterrent for other potential offenders. This is referred to as general
deterrence.
The moderation need not be great if the offender acts with knowledge of
what he is doing and has knowledge of the gravity of his actions,[13] or if the
mental health issue was self-induced (e.g. drug use)[14].
Specific deterrence:
Custodial hardship:
People with mental illnesses can be more vulnerable in prison than the
general prison population.
For this reason, the court may consider if the imposition of a custodial
sentence may weigh more heavily on the offender due to the mental illness.
Evidence should be provided to the court about the particular difficulties the
offender will face in custody.[22] For example: whether or not the offender
would be able to obtain treatment in custody, whether the mental illness
would place him in protected custody, the offenders ability to socialise with
other inmates.
https://lamontlaw.com.au/legal-articles/mental-illness-and-sentencing-in-new-south-wales/