Whether you have just been charged with an offence, or you are about to face an upcoming sentence, your mental health may be relevant to your criminal proceedings.

The three major ways in which your mental health might be considered are:

1. Pre-trial stage: to determine whether you are mentally fit to plead
2. During the trial: to consider whether you might be found not guilty because of a mental impairment or whether it is appropriate for the charges to be dismissed because of your mental health
3. Sentencing: where your mental health might be a factor which reduces the severity of the sentence you receive

It is important to understand that, during stages 1 and 2, your mental health might mean you are found not criminally responsible for your actions. In stage 3, your mental health won’t prevent you from having a criminal record – however, you may be able to receive a lighter penalty.

Pre-trial: fitness to plead

The Court will presume that you are fit to plead unless you can prove otherwise on the balance of probabilities.

Usually, proving unfitness to plead is very difficult and will likely require examination by a psychiatrist or another health practitioner. If the Court finds that you are unfit to plead and are unlikely to become fit to plead within the next 12 months, the Court must hold a ‘special hearing’, in which it is taken that you have pleaded ‘not guilty’ to the offence. The judge or jury must then acquit you unless they are satisfied beyond reasonable doubt that you did engage in the conduct required to prove the offence.

As you can see, a finding that you are unfit to plead does not prevent you from being found guilty of an offence, although it may make it more difficult.

If you are found guilty of the offence despite being unfit to plead, the Court may order that you either be detained in custody, or, that your matter is referred to the ACT Civil and Administrative Tribunal for a mental health order.

During trial: mental health as a defence or as a reason to dismiss charges

If your mental health was particularly bad at the time you committed an offence, you may be found not guilty by reason of your mental impairment. As this defence results in no criminal liability, there is a very high threshold to proving this defence. As a default position, the Courts will presume that you were not suffering from a mental impairment unless you, or your lawyer, can prove the following:

• That you were suffering from a mental impairment; and
• That you did not understand the nature and quality of your conduct; or
• That you did not know that you conduct was wrong; or
• That you could not control your conduct.

These elements must be satisfied on the balance of probabilities.

The definition of ‘mental impairment’ includes ‘senility, intellectual disability, mental illness, brain damage and severe personality disorder’. To prove that you have a mental impairment, it will normally require you to have evidence from a psychologist or psychiatrist who has assessed you.

It is important to know that this defence is notoriously hard to prove and very few people who are suffering from some form of mental illness will be able to demonstrate that their illness is severe enough to warrant fully excusing them of criminal liability.

For less-serious offences, the Court has the option to dismiss charges against you, without determining your guilt, if it is satisfied you are mentally impaired, and it is appropriate to do so. This is different to raising mental impairment as a defence.

If you have been found not guilty by way of mental impairment, or your charges have been dismissed because of your mental impairment, you may be referred to the ACT Civil and Administrative Tribunal and be required to undergo a mental health assessment. After this assessment, you may be subject to a psychiatric treatment order, which involves treatment in a mental health facility, or a community care order, which involves treatment, care and support either in a mental health facility or in the community.

If you are looking for a more thorough explanation of how mental health can be used as a defence, see our other blog, titled ‘What does it mean to be found ‘not guilty’ by way of mental impairment?’

Mental health in sentencing

Once you have pleaded guilty or been found guilty of an offence, your mental health can no longer protect you from criminal liability. However, depending on the nature and gravity of your mental health symptoms, it may be able to mitigate (reduce the severity of) your sentence.

Section 33 of the Crimes (Sentencing) Act 2005 (ACT) provides the Court with a list of mandatory considerations it must take into account when determining an offender’s sentence. One of these mandatory considerations is mental health.

The legislation itself does not specify the exact influence that mental health will have on your sentence. However, it is generally accepted that mental health concerns will mitigate the severity of the sentence imposed on you.

The ‘Verdins Principles’ are sentencing guidelines which provide the Court with directions for how mental health or mental impairment should be taken into account on sentence. Specifically, the Verdins principles can do the following:

1. Reduce your moral culpability for the offending
2. Influence the type of sentence and conditions imposed on you
3. Reduce the weight the Court gives to the sentencing purpose of ‘general deterrence’ when considering what sentence to impose (ie discouraging other people from committing the same offence)
4. Reduce the weight the Court gives to the sentencing purpose of ‘specific deterrence’ when considering what sentence to impose (ie discouraging you from committing the same offence again)
5. Justify a less severe penalty where there is a risk that gaol time could have a significant adverse effect on your mental health

To raise these principles, you or your lawyer must be able to establish that you were suffering from a mental impairment at the time or offending or at the time of sentencing. Often, these principles are raised where your mental impairment was not severe enough to satisfy the defence of mental impairment.

It is generally helpful to give the Court an expert report written by a psychologist or psychiatrist who has assessed your mental health. This report would explain to the Court how your mental health affected your offending at the relevant time, and/or, how your mental health is likely to make a particular sentence more onerous for you, compared to someone without mental health concerns. Relying on this type of report can enliven the Verdins principles.

Again, these principles do not mean you are ‘not guilty’ of an offence but, if they apply, they are likely to reduce the seriousness of the penalty you receive.

If you need advice, contact one of our experienced criminal lawyers at info@codalaw.com.au