NCJ Number
88475
Journal
International Journal of Law and Psychiatry Volume: 4 Issue: 1-2 Dated: (1981) Pages: 107-122
Date Published
1981
Length
16 pages
Annotation
Australian courts are developing positive and realistic principles for sentencing offenders who are considered to be mentally disordered either at the point of commission of their offenses or during the sentencing stage of the proceedings.
Abstract
The psychiatrist's role in sentencing should be to determine whether the offender's mental condition would allow the court to reduce a sentence below the just deserts limit without unduly putting the community at risk. Australian courts recognize that judicial discretion in sentencing operates within the principles of law resulting from court decisions. Over the year, the sentencing of serious offenders has reflected the philosophy of deterrence and the principle of just deserts. The offender's personal characteristics and predictions relating to the offender's future conduct have received secondary consideration. Nevertheless, sentencers have not abandoned the rehabilitation model. The rhetoric of rehabilitation is particularly prevalent in pleas of mitigation of penalty, in presentence and psychiatric reports, and in the written judgments of sentencing courts. However, determining the penalty commensurate with the offense should occur separately from a decision regarding a reduction of the penalty on the grounds of mental infirmity. The Veen case, which resulted in a reduced sentence, is the leading Australian case on the sentencing of mentally disordered offenders. Although the search for ways to prevent future criminality on the part of individual offenders should continue, the concept of preventive detention should be eliminated both from the laws and from the minds of sentencers. Courts should not impose punishment or greater punishment than deserved because of the lack of nonpunitive preventive detention. Footnotes are provided.