The content on this page was last reviewed on 10 October 2020.

1. Overview

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

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(m) the character, antecedents, age, means and physical or mental condition of the person

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

• Summary Disposition for Mental Illness;
• Hospital Orders;
• Psychiatric Probation Orders; and
• Program Probation Orders.

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2. Definition of ‘Mental Condition’

The Crimes Act 1914 (Cth) does not define ‘mental condition’, ‘mental illness’ or ‘intellectual disability’.¹

The meaning of ‘mental condition’ was considered in R v Verdins [2007] VSCA 102 which reformulated the sentencing principles first expressed in R v Tsiaras [1996] 1 VR 398.²

 The Court in Verdins held that the sentencing considerations regarding mental condition are not confined only to where an offender has a ‘serious psychiatric illness’. The plurality in Verdins held at [5]:

The sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of “serious psychiatric illness.” One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.³

In the state sentencing case of Brown v The Queen [2020] VSCA 212, the Victorian Court of Appeal held that Verdins considerations can apply to offenders suffering from diagnosed personality disorders. The Court stated at [6]:

[A]n offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins.⁴

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3. When to Consider Mental Condition

In DPP (Cth) v De La Rosa [2010] NSWCCA 194, McClellan CJ at CL (Simpson J and Barr AJ agreeing) held that despite an absence of legislative clarity, all aspects of an offender’s mental health and capacity must be considered when sentencing federal offenders. McClellan CJ at CL stated at [171] that:

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 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 … (emphasis added).

McClellan CJ at CL (Simpson J and Barr AJ agreeing) further noted at [176]:

Section 16A(2) requires that the catalogue of matters identified in the subsection be taken into account when relevant and “known to the court.” This is not to be understood as requiring formal proof of any matter (Weininger v The Queen (2003) 212 CLR 629 at [21]). However, when the issue is an offender’s mental condition, there must be some material from which it can be known rather than merely assumed.

Simpson J made the following observation at [279] (with which Barr AJ agreed):

Section 16A(2)(m) of the Crimes Act (Cth) enables, and requires, the court to take into account the mental condition of a person standing for sentence — where evidence is given of that condition.

Section 16A(2)(m) can include distress and anxiety referable to the trial, sentencing or appeal process. In DPP (Cth) v De La Rosa [2010] NSWCCA 194, Simpson J, made the following observation at [180], with which McClellan CJ at CL and Barr AJ agreed:⁵

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.

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4. Proving Mental Condition

A mental condition must be established through expert assessment and diagnosis. For example, in Kaveh v The Queen [2017] NSWCCA 52, Latham J found at [27] that:

I am unpersuaded that her Honour was not entitled to reject Mr Gorrell’s [the psychiatrist’s] ‘diagnosis’ of PTSD. His reference to the 2010 diagnosis by a psychiatric registrar arguably underpinned every reference to PTSD thereafter. Simply recording the fact that the applicant expressed feelings consistent with some of the DSM 5 criteria for PTSD, and attaching those criteria to his report, falls short, in my view, of an independent diagnosis. Mr Gorrell was not qualified to make a definitive diagnosis. It remained doubtful that the applicant had established the diagnosis to the relevant standard (emphasis added).

A Court will not presume that an offender is affected by stress or anxiety resulting from the trial, sentencing or appeal process. Rather, any such mental condition must be established by material adduced on sentence. In Bui v Director of Public Prosecutions (Cth) [2012] HCA 1, the High Court stated at [28] that:

[P]resumed anxiety and distress on re-sentencing is not one of the matters to which the Court is to have regard under sub-s (2) …⁶

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5. Significance of Mental Condition in Sentencing

In R v Z [2006] NSWCCA 342, [53], Beazley JA (Howie J agreeing) adopted the following paragraph from Channon v The Queen [1978] FCA 16.⁷

In Channon, Brennan J identified the varying ways in which an offender’s mental condition may influence sentencing, stating at [7]:

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 (emphasis added).⁸

5.1 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, the Victorian Court of Appeal reformulated sentencing principles first expressed in R v Tsiaras [1996] 1 VR 398, 400.⁹

The Court in Verdins stated at [32] that mental 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.

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.

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.

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.

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 (emphasis added).

For commentary on Verdins principles three and four, see: Deterrence.

5.1.1 Mental Condition and Culpability (Verdins 1)


Culpability goes to the first Verdins principle. 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.¹⁰

In R v Z [2006] NSWCCA 342 at [48], Beazley JA quoted with approval the following passage from the state sentencing case of R v Israil [2002] NSWCCA 255, where Spigelman CJ stated at [23] that:

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.¹¹

In Thompson v The Queen [2005] WASCA 223, Steytler P (McLure JA agreeing) indicated at [53] that:

[T]he 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 … (emphasis added).¹²

The offender’s gambling addiction was not found to mitigate the offender’s moral culpability in R v Jafari [2017] NSWCCA 152, where the offender pleaded guilty to theft of Commonwealth property.  However, Basten JA (Johnson and Davies JJ agreeing) held that addiction may be mitigating in other circumstances at [91]–[93]:

In broad terms, there is support for this approach in the authorities. In considering pathological gambling, the Victorian Court of Appeal in R v Grossi identified such a particular mental condition as potentially available to reduce moral culpability and mitigate the propriety of general deterrence.
…
It is nevertheless clear from the authorities relied upon in Johnston [[2017] NSWCCA 53] that moral culpability, as assessed for the purposes of sentencing an offender, may be reduced, in circumstances which fall short of demonstrating a lack of capacity to exercise judgment or demonstration that the act was not voluntary. A better understanding as to the susceptibility of an individual to addictive behaviour and a better understanding of the changes to personality and indeed the physical symptoms which can accompany addictive behaviour may satisfy a court in a particular case that the offence is not one which provides an appropriate vehicle for general deterrence or retribution, to the full extent that such an offence might otherwise call for such a response. In any event, the circumstances set out above indicate that the sentencing judge was correct not to rely on the fact that the offence arose out of a gambling addiction as a basis for leniency (emphasis added).

See also: 6.2 Gambling Addiction.

5.1.1.1 Causal Connection Required

The offender’s mental condition must be causally connected to the commission of the offence in order for the offender’s moral culpability to be lessened.¹³

 In Ibrahim v The Queen [2016] NSWCCA 6, Bellew J (MacFarlan JA and Rothman J agreeing) held at [36] that:

[The psychologist] did not suggest that the applicant’s mental state was causally connected to her offending. Accordingly, the applicant’s mental state did not provide any basis for a lessening of her moral culpability (emphasis added).

Similarly, in the tax fraud sentencing decision of R v Thorn [2016] ACTSC 217, Refshauge J observed that while the offender suffered from mental impairment, it was not at such a level as to be causative to his offending. His Honour held at [77] that:

My assessment is that Mr Thorn’s mental impairment is a significant indirect contributor to his offending. It seems to me he is vulnerable and easily led, with some limited capacity to appreciate all the consequences of his actions. Nevertheless, his participation in the offending had a significant level of culpability. I do not consider that his mental impairment contributed directly in any significant way to the commission of these offences (emphasis added).

5.1.1.2 Impairment of Mental Functioning Must be Involuntary

Impairment of mental functioning must be involuntary in order for moral culpability to be reduced.¹⁴

 For example, in DPP (Cth) v Boyles [2016] VSCA 267, the first limb of the Verdins principle was not enlivened as the offender had chosen not to take prescription medication when the offender was aware of the adverse effects of not doing so. Maxwell P and Osborn JA (Tate JA agreeing) held at [42]–[43] that:

Where Verdins 1 is relied on in mitigation, the offender must establish that his mental functioning was impaired involuntarily. That is, his ability to reason or make decisions was adversely affected by a mental condition beyond his control, such that he should be regarded as less morally culpable for the offending than someone who had not been so affected.

In the present case, the fundamental cause of the active bipolar state in which RB committed the offences was his own choice not to take medication prescribed by a specialist medical practitioner. He well knew the nature of the condition he was suffering from and he knew that, in the absence of medication, his mood and behaviour might be affected (emphasis added; citations omitted).

However, in Marks v The Queen [2019] VSCA 253, the offender pleaded guilty to attempting to take or exercise control of an aircraft making an international flight by threat of force. The offender’s psychosis triggered by the ingestion of an illicit drug was held to reduce their moral culpability in the ‘special circumstances’ of the case.¹⁵

Whelan, Emerton and Osborn JJA stated at [60], [62]–[64], [66] that:

In the circumstances of this case the applicant’s psychotic state should be regarded as reducing his moral culpability. We take this view despite the fact that generally speaking an offender’s culpability is unlikely to be reduced by a state of mind resulting from the use of illicit drugs if that person has a history of drug use leading to hallucinations and bizarre behaviour.
…
The critical question in judging whether an offender’s own actions prevent a mental condition from constituting a mitigating circumstance involves considering ‘what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences.’ The onus fell on the applicant to establish that his mental condition constituted a mitigating factor.

In the present case, Prof Carroll’s evidence established that the applicant was in an early very fragile state of partial recovery from his earlier psychotic episode at the time of discharge, which would have rendered him particularly sensitive to the psychosis inducing effect of the methamphetamine which he took.

Further, his evidence was that the applicant would not have known or anticipated the likely degree of the consequences of taking the methamphetamine which he consumed.
…
It follows that in the special circumstances of this case, the applicant’s moral culpability should be regarded as reduced despite the fact that his psychosis was triggered by the consumption of an illicit drug (emphasis added; citations omitted).

A cannabis-induced psychosis at the time of the offence was considered to reduce the offender’s moral culpability in Avan v The Queen [2019] VSCA 257, where the offender caused a dangerous article to be carried by a postal service. The offender was not aware prior to offending that cannabis use could induce him into a psychotic state. Priest and Hargrave JJA stated at [18] that:

It was not contended in this case that the appellant had been put on notice by previous cannabis use that his use of that drug could induce in him a psychotic state likely to precipitate criminal offending. In those circumstances, we consider that the appellant’s psychotic state at the time of offending should be regarded as reducing his moral culpability, despite the fact that his psychosis was precipitated by cannabis use (citations omitted; emphasis added).

5.1.2 Mental Condition and Sentence Conditions Imposed (Verdins 2)


Consistently with the second Verdins principle, an offender’s mental condition may have a bearing on what sentence conditions are imposed, but must be balanced with other relevant factors.¹⁶

In R v White [2016] ACTSC 237, Elkaim J considered that there was a “high risk” of the offender committing suicide if sentenced to full-time imprisonment, but imposed a condition of counselling on his release on recognizance, stating at [29]–[30], [32] that:

I have come to the conclusion that the offender’s mental disability, which he suffers, has suffered at all relevant times, and will continue to suffer, should be regarded as an exceptional circumstance. It affects not only his moral culpability in the offence but also, as noted by the Crown, the offender would “run a high risk of suicide” if sentenced to full-time imprisonment.

I therefore do not propose to impose a sentence of full-time imprisonment.
…

I have come to the conclusion that the appropriate course I should take is by way of a term of imprisonment which is suspended with immediate effect together with a Good Behaviour Order and Recognizance Order with appropriate conditions. The only condition suggested by the defence, and the Crown, related to the offender attending appropriate counselling. I will impose such a condition (emphasis added).

5.1.3 Mental Condition and the Effect of a Custodial Sentence (Verdins 5 & 6)


Consistently with the fifth and sixth Verdins principles, particular consideration must be given to the effect of any custodial sentence on a person with a mental condition.¹⁷

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 considered the effect of a high security prison on the offender’s mental state, where the offender suffered from depressive disorder and substance abuse. It was observed at [41] 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.¹⁸

In R v Joffe; R v Stromer [2015] NSWSC 741, Hulme J considered a custodial sentence would be more onerous for the offender as the offender suffered from anorexia nervosa.¹⁹

 A custodial sentence was imposed, but with immediate release on recognizance.

In the terrorism case of R v Khan (No 11) [2019] NSWSC 594, Bellew J found that the fact the offender had a mental illness would impact on their experience of incarceration. Bellew J stated at [114] that:

The offender’s mental illness was not, in any way, causally connected to his offending. That said, I am unable to accept the submission of the Crown that the fact that the offender’s current mental health is being satisfactorily treated in custody leads to a conclusion that his custodial conditions are not rendered more onerous than might otherwise be the case. The fact that the offender has a mental illness at all must have some effect upon his conditions of custody and I have taken that into account. However, given the nature of the offending in the present case, general deterrence remains relevant and is not significantly moderated by mental health considerations (emphasis added).

In Ching v The Queen [2018] NSWCCA 101, a federal drug importation case, Adamson J considered (at [25]) there was no error in the sentencing judge’s approach to taking into account the offender’s mental illness (major depressive disorder). Adamson J described the sentencing judge’s approach at [15]:

The sentencing judge found that there was insufficient evidence to conclude that the family hardship was exceptional but accepted that the applicant’s “serious medical conditions, both physical and mental, are matters that properly call for some mitigation of sentence”. Her Honour accepted that the applicant’s depression would mean that a custodial sentence would “weigh more heavily on her” and that account should be taken of her physical conditions and chronic anxiety (emphasis added).

In R v Taleb (No 5) [2019] NSWSC 720, Hamill J considered that imprisonment was more onerous for the offender on account of his mental condition, stating at [64] that:

Finally, accepting Dr Greenberg’s view that the stress of his arrest and incarceration precipitated the severe schizophrenic attack, it is clear that imprisonment is more onerous on Mr Taleb than it would be on somebody who was not pre-disposed to a schizophrenic illness. I accept Dr Nielssen’s opinion that “the security regime at the HRMCC creates a very anti-therapeutic environment”, that this would “have an adverse effect on the course of Mr Taleb’s illness and impede his recovery” and that “the conditions of detention are counter therapeutic and would be likely to make his medical condition worse and have an adverse effect on his longer term rehabilitation” (emphasis added).

Hamill J concluded at [66] that:

On the basis of those findings, the penalty to be imposed on this young, mentally ill, and vulnerable offender must be at the bottom of the putative range of sentences that might otherwise be imposed for such an offence. This is not to lose sight of the seriousness of the conduct, the fact that Mr Taleb knew what he was doing was illegal, the important role of general deterrence in offences of this kind, or the maximum penalty

In R v Donald [2013] NSWCCA 238, where the offender suffered from bipolar disorder, Latham J (Hidden and Adamson JJ agreeing) did not accept that the offender’s mental condition would make a custodial sentence more onerous as there was no evidentiary basis the sentence would be more burdensome for the offender than other offenders. The Court held at [77] that:

I also accept the Crown’s submission that there was no evidentiary basis for the finding that the respondent’s time in custody would weigh more heavily upon him than other offenders. The evidence established that the bipolar disorder was in remission and that the respondent was adequately medicated. There was no basis to assume that the respondent would not receive appropriate treatment in custody (emphasis added).²⁰

See further: Hardship to the Offender: Mental Condition.²¹

6. Mental Condition and Other Sentencing Factors

In R v Z [2006] NSWCCA 342, Beazley JA (Howie J agreeing) noted the observations of Malcolm CJ in the state sentencing case of Lauritsen v The Queen [2000] WASCA 203. Malcolm CJ stated at [48] that:

[M]ental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence (emphasis added).²²

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6.1 Mental Condition Caused by Delay

While it has been recognised that delay can ‘give rise’ to an offender’s mental condition, the mental condition must be established through evidence, and cannot be presumed. For example, Basten JA (Campbell and N Adams JJ agreeing) held in the tax offences case of Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42 at [96] that:

One issue which has caused some difficulty in relation to consequences is the extent to which the courts can presume that delay has given rise to stress and perhaps psychological complaints and the extent to which such matters need to be established by evidence. As the relevant factors identified in s 16A(2)(m) are physical and mental condition, these should be established as actual, not presumed, conditions, in accordance with Bui (emphasis added).

6.2 Mental Condition and Deterrence

General and specific deterrence may have reduced significance in the sentencing exercise where the offender suffers from a mental condition, and there is a causal connection between the condition and offending.²³

Mazza J (McLure P and Buss JA agreeing) held in the obtaining financial advantage by deception case of Gok v The Queen [2010] WASCA 185 at [59]–[60] that:

The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, ‘sensibly moderated’. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely …

The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions: R v Wright (1997) 93 A Crim R 48, 51 (Hunt CJ) (emphasis added).

Courts sentencing for terrorism offences have also considered that where an offender’s radicalisation is causally linked to their mental condition, they may be an inappropriate vehicle for general deterrence. For example in R v Sharrouf [2009] NSWSC 1002, the offender was diagnosed with suffering from schizophrenia during and after the commission of the offence. Whealy J held at [61]–[62] that the considerations of punishment, deterrence and incapacitation will need to be qualified in these circumstances:

These propositions need to be qualified, however, where, as is the case here, the circumstances of the offending are significantly clouded by the presence of a substantial and chronic mental illness. In such a case, the presence of that kind of mental illness is relevant in the assessment of objective criminality. It is also relevant to a determination as to whether or not the case is one that calls for a particular measure of general or specific deterrence.

In my opinion, the offender, on account of his schizophrenia is by no means a suitable vehicle for general deterrence… (emphasis added; citations omitted).

However, the offender’s mental condition did not moderate the need for general deterrence in the terrorism case of R v Khan (No 11) [2019] NSWSC 594 where the offender’s schizophrenia and/or obsessive compulsive disorder was not causally connected to his offending. Bellew J stated at [114] that:

The offender’s mental illness was not, in any way, causally connected to his offending. That said, I am unable to accept the submission of the Crown that the fact that the offender’s current mental health is being satisfactorily treated in custody leads to a conclusion that his custodial conditions are not rendered more onerous than might otherwise be the case. The fact that the offender has a mental illness at all must have some effect upon his conditions of custody and I have taken that into account. However, given the nature of the offending in the present case, general deterrence remains relevant and is not significantly moderated by mental health considerations (emphasis added).

Similarly, in the child exploitation case of Dennis v The Queen [2017] VSCA 251, the fourth limb of the Verdins principles (moderation or elimination of specific deterrence) was not enlivened where the offender’s mental condition of brain damage did not prevent offender from exercising choice, even though mental condition made it difficult for the offender to learn from their mistakes. Kyrou and Hansen JJA held at [118] that:

In our opinion, Verdins limb 4 was not satisfied in the present case. Although the appellant’s neuropsychological condition made it difficult for him to learn from his mistakes, as he knew that his offending conduct was unlawful and could result in a lengthy prison sentence, it could not be said that his condition prevented him from exercising a choice between engaging in the conduct and abstaining from it (emphasis added).

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7. Mental Condition and Sentencing Particular Offences

7.1 Mental Condition and Terrorism Offences

When sentencing for terrorism offences, courts have considered the relationship between an offender’s mental condition and their radicalisation. For example, in R v Bayda; R v Namoa (No 8) [2019] NSWSC 24 the Court found that the history of mental illness of one of the offenders contributed to their radicalisation. Fagan J held at [104], [117] that:

Having considered Namoa’s developmental history, her extensive text exchanges and intercepted phone conversations with Bayda, her letters, her oral evidence and her demeanour in the witness box, I have no hesitation in accepting Dr Furst’s analysis. Any 18-year-old can be seduced by an ideology. The jihadists’ propaganda would be highly persuasive for anyone susceptible to divine dogma, given the impressive scriptural scholarship offered in support. Most would balk at a doctrine of purported instruction from a deity to kill people who do not share one’s religious beliefs. Namoa lacked the intellectual strength to bring reason and humanity to prevail against this outrageous concept.

…

With respect to Namoa the part of s 16A(2)(m) which concerns the offender’s mental condition is relevant. I consider that her history of mental health problems, described by Dr Furst in the extract from his report at [102], materially contributed to her engagement with militant Islamic ideas and hence to the commission of the offence. In accordance with the principles stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177], this reduces the need for specific deterrence and for denunciation. The causal effect of Namoa’s mental disturbances makes it inappropriate to penalise her at a level which might otherwise have been called for by way of deterrent to others (emphasis added).

Similarly, Hamill J found the offender’s mental condition in R v Taleb (No 5) [2019] NSWSC 720 contributed to the offender’s radicalisation and subsequent offending, which involved conduct preparatory to committing a foreign incursion offence. Hamill J stated at [54], [74] that:

I am satisfied that his mental illness played a significant role in his offending. There were signs of (at least) psychological distress when he was admitted to Bankstown Hospital in 2014. It was after this episode of possible self-harm that he became devoutly religious. He was vulnerable to religious ideas and extremist ideology. This finding is consistent with the report of Dr Nielssen dated 8 May 2019. His illness caused him to be isolated and this increased his vulnerability. His delusional beliefs three years later included the belief that the chip was planted in his brain during his admission at Bankstown Hospital.

…

As I have said, his devotion to Islam increased after his admission to Bankstown Hospital. Dr Nielssen said, and I accept, that his mental illness made him more susceptible to religious ideas. Based on his care for his mother, I think he is a person of reasonably good character. He is a man of limited means and has a serious mental illness which will require ongoing, probably life-long, intervention (emphasis added).

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7.2 Mental Condition and Child Exploitation Offences

In the child exploitation case of Cluett v The Queen [2019] WASCA 111, the offender was charged with two counts of using a carriage service to access child exploitation material and a state child exploitation material possession offence. The Court accepted the medical evidence which found that the offender’s autism spectrum disorder with intellectual impairment suggested the offender’s ‘viewing of the material was not motivated by a sexual attraction towards children’.²⁴

Accordingly, the court held at [74] that:

[T]he appellant’s autism spectrum disorder was a contributing factor to his offending. On the sentencing judge’s unchallenged findings, the appellant’s fixation on his ‘research’ led him to obtain or access the images. While there was no rational basis for thinking that viewing the images was required for that purpose, the lack of rationality in the appellant’s thought processes was a product of his autism spectrum disorder. In our view, although the appellant appreciated the illegality of his conduct, his autism spectrum disorder reduces both his moral culpability and the significance of general deterrence as a sentencing consideration (emphasis added).

A mental condition may operate in a variety of ways on sentence. For example, paraphilic disorders will not necessarily operate to mitigate a sentence for child exploitation offences.²⁵

In DPP (Cth) v Beattie [2017] NSWCCA 301, Basten JA (Walton and Price JJ agreeing) stated that while the offender’s paraphilic disorder ‘may be seen to provide an explanation for his offending and reduce to some extent his moral culpability’, it ‘heighten[ed] the need for specific deterrence’.²⁶

The Court quoted with apparent approval the primary judge, who had stated at [41]:

In Veen v R [No 2] [[1988] HCA 14], a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to reoffend. But the majority noted that, although the condition may be said to diminish his or her ‘moral culpability for a particular crime’, it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case.

In Dennis v The Queen [2017] VSCA 251, the offender’s mental impairment of brain damage from a motorcycle crash was found to have had a causal connection with the offender’s failure to comply with reporting obligations under the Sex Offender Registration Act 2004 (Vic) (‘SORA’), although it failed to reduce the offender’s moral culpability for Commonwealth and state child exploitation offences. Kyrou and Hansen JJA held at [114]–[115] that:

As appears from above, the expert evidence was to the effect that, due to his neuropsychological condition, the appellant had difficulty processing information and organising himself with a view to complying with legal obligations, and learning from his mistakes. This evidence explains why he failed to comply with his SORA reporting obligations. Accordingly, his moral culpability in relation to the breach of those obligations was moderated and specific deterrence had limited application.

The appellant’s moral culpability in relation to the offending the subject of charges 1 and 3 was not affected by his mental impairment because Mr Jackson specifically found that the appellant was able to understand that what he was doing was wrong. This finding is supported by the fact that the appellant deliberately concealed his offending from his partner, Mr Li, for the entire period of his offending. Mr Jackson’s further opinion that the appellant’s neuropsychological condition is ‘not related’ to his child pornography offending means that the causal link required by O’Neill in order to engage Verdins limb 1 cannot be satisfied (emphasis added, citations omitted).

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1. The ALRC recommends that federal sentencing legislation be amended to define the terms ‘mental illness’ and ‘intellectual disability’, and to include those terms in addition to ‘mental condition’: Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006), recommendations 28-4 – 28-5. See also Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, [165]–[171] for a discussion of these recommendations and state sentencing law.[↩]
2. Mental condition was also considered at length in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [165]–[166], where McClellan CJ at CL addressed the difficulty of defining ‘mental condition’ and ‘intellectual disability’.[↩]
3. Affirmed by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, [178]. Considered in Garcia v The Queen [2013] NSWCCA 241, [51]. See also state sentencing case R v McIntosh [2008] VSCA 242, [104] (Dodds-Streeton JA, Kellam JA and Hargrave AJA agreeing). Types of mental illnesses or disorders considered by the courts to be within the definition of mental condition include, but are not limited to; schizophrenia: R v Atik [2007] VSC 299, R v Taleb (No 5) [2019] NSWSC 720, The Queen v Sharrouf [2009] NSWSC 1002; intellectual disability: R v Atik [2007] VSC 299; depressive disorder: Dordevic v The Queen [2016] VSCA 166, R v Kent [2009] VSC 375; post-traumatic stress disorder: R v Z [2006] NSWCCA 342, Dordevic v The Queen [2016] VSCA 166; anorexia nervosa: R v Joffe; R v Stromer [2015] NSWSC 741; bipolar disorder: R v Donald [2013] NSWCCA 238; autism spectrum disorder: Cluett v The Queen [2019] WASCA 111; learning difficulty and behavioural problems: R v Bayda; R v Namoa (No 8) [2019] NSWSC 24. See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 290–292.[↩]
4. The Court held that the state sentencing decision of Director of Public Prosecutions v O’Neill [2015] VSCA 325, which had held that personality disorders do not enliven Verdins principles, should no longer be followed. But note that the Queensland state sentencing case of R v Hayes [2010] QCA 96, [28] (Chesterman JA) had come to a similar conclusion as the Court in O’Neill. It does not appear to have been doubted that s 16A(2)(m) can include personality disorders: see, eg, DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. See, eg, R v Alou (No. 4) [2018] NSWSC 221 at [204]–[213] per Johnson J (not disturbed on appeal: Alou v The Queen [2019] NSWCCA 231).[↩]
5. Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, [180] (McClellan CJ at CL); [315] (Barr AJ).[↩]
6. See also Bui v Director of Public Prosecutions (Cth) [2012] HCA 1 at [21]–[23], [28]. See further DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42, [40], [96] (Basten JA).[↩]
7. See also R v Donald [2013] NSWCCA 238, [75].[↩]
8. A mental disorder may also have a neutral effect as the mitigating and aggravating factors ‘cancel each other out’. See, eg, state cases Freeman v The Queen [2011] VSCA 349, [27]–[28]; Western Australia v Khasay [2014] WASCA 58, [40]; R v Engert (1995) A Crim R 67, 71; Leach v The Queen [2008] NSWCCA 73, [12].[↩]
9. The principles from these two cases have been cited in subsequent federal sentencing decisions. See, eg, Thompson v The Queen [2005] WASCA 223, [52]; R v Z  [2006] NSWCCA 342, [56]; R v Atik [2007] VSC 299, [38]; R v Kent  [2009] VSC 375, [40]; R v White [2016] ACTSC 237, [26]–[27]; Dordevic v The Queen [2016] VSCA 166, [18]; Garcia v The Queen [2013] NSWCCA 241, [51]; Atanackovic v The Queen [2015] VSCA 136, [154]. See also DPP (Cth) v Boyles [2016] VSCA 267, [42]–[43] where not applied as affected mental condition was not involuntary (see discussion in 5.1.1.2 below).[↩]
10. R v Pham [2005] NSWCCA 314, [35] (Hall J, Scully and Hidden JJ agreeing).[↩]
11. See also R v Verdins [2007] VSCA 102, [23] where Maxwell P, Buchanan and Vincent JJA extracted the same passage.[↩]
12. See also R v Lappas [2003] ACTCA 21, [125]; R v Atik [2007] VSC 299, [38].[↩]
13. See, eg, R v Joffe; R v Stromer [2015] NSWSC 741, [121] (Hulme J).[↩]
14. See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 294.[↩]
15. Marks v The Queen [2019] VSCA 253, [66].[↩]
16. Gok v The Queen [2010] WASCA 185, [58] (Mazza J, McLure P and Buss JA agreeing). See further: Additional Sentencing Alternatives.[↩]
17. See, eg, R v Pham [2005] NSWCCA 314, [35]; R v Z [2006] NSWCCA 342, [50]. See also Atanackovic v The Queen [2015] VSCA 136, [154] (Weinberg, Kyrou and Kaye JJA).[↩]
18. See also R v Atik [2007] VSC 299, [38].[↩]
19. R v Joffe; R v Stromer [2015] NSWSC 741, [121].[↩]
20. See also Thompson v The Queen [2005] WASCA 223, [50]; Kaveh v The Queen [2017] NSWCCA 52, [33]. But see R v West [2015] ACTSC 134 where Refshauge J held at [68], ‘[t]he fact that there is a treatment available in prison moderates, but does not eliminate, the vulnerability of Ms West [due to her mental condition] in the circumstances.’[↩]
21. See also J Walvisch, “Sentencing Offenders with Impaired Mental Functioning: Developing Australia’s ‘Most Sophisticated and Subtle’ Analysis” (2010) 17 Psychiatry, Psychology and Law 187, 197.[↩]
22. Lauritsen v The Queen [2000] WASCA 203 was also applied in R v Israil  [2002] NSWCCA 255, [24] (Spigelman CJ, Simpson and Blanch JJ agreeing).[↩]
23. See, eg, The Queen v Sharrouf [2009] NSWSC 1002, [61]–[64]; Klomfar v The Queen [2019] NSWCCA 61, [29]; Ching v The Queen [2018] NSWCCA 101, [14]; Cluett v The Queen [2019] WASCA 111, [63]. Cf R v Doherty [2019] NSWDC 515, [63]. See further: 2.1.1 and 3.1.1 of Deterrence commentary page.[↩]
24. Cluett v The Queen [2019] WASCA 111, [32], [68].[↩]
25. Ryan v The Queen [2001] HCA 21, 40. See also DPP v OJA [2007] VSCA 129 at [14] (Nettle JA).[↩]
26. DPP (Cth) v Beattie [2017] NSWCCA 301, [205].[↩]