Sentencing offenders with self-induced mental disorders: towards a theory of meta-culpability.

Around Australia, the Verdins principles govern the sentencing of offenders with mental health problems. The first Verdins principle holds that mental health problems may reduce an offender's culpability, and thus the punishment that is considered just in the circumstances. But how should this principle be applied where the offender's mental health condition was triggered by drug use, or by a failure to take prescribed psychiatric medication? Should the offender be precluded from relying on the principle because of the self-induced nature of their condition, or should they continue to receive a sentencing reduction because their mental functioning was impaired at the time of the offence? This article analyses the way in which Australian courts have addressed this issue to date, highlighting key problems with the current approach. It uses Duff's account of crime and punishment to sketch out an alternative approach that focuses on the offender's 'meta-culpability': their culpability for the reduced level of culpability ordinarily associated with impaired mental functioning. It concludes by demonstrating how that approach would work in practice, by applying it to the facts of a recent Victorian criminal case. Keywords: communicative retributivism; culpability; drug-induced mental health problems; medication non-adherence; mental disorder; mental health; mental illness; punishment theory; sentencing; Verdins principles.

Sentencing and mental disorder: the evolution of the Verdins Principles, strategic interdisciplinary advocacy and evidence-based reform.

In DPP v O'Neill, the Victorian Court of Appeal excluded personality disorders from the scope of the sentencing principles that apply to offenders with mental health problems around Australia (the 'Verdins principles'). This decision was based on a fundamental misunderstanding of the nature of personality disorders and had the potential to create serious injustice for many marginalised people. To redress this problem, the authors engaged in a unique process of strategic advocacy, which resulted in the Victorian Court of Appeal overturning O'Neill in the recent case of Brown v The Queen. This article examines the evolution of the Verdins principles, the problems that arose in O'Neill, the collaborative strategy used to address those problems and the successful outcome of that interdisciplinary strategy.

"Mental Disorder" and Sentencing: Resolving the Definitional Problem.

Mental health problems affect the majority of people who face the sentencing process. The fact that a convicted offender has mental health problems may be taken into account in various ways: it may mitigate or aggravate the penalty, or may affect the type of sanction that is imposed or its conditions. At present, sentencing judges use a two-stage process to determine the effect (if any) that an offender's mental health problems should have on the sentencing determination. First, they ascertain whether the offender has a relevant mental health problem. If they find that he or she does, they then decide what effect that mental health problem should have on the sentencing determination. This article compares recent approaches that have been taken to the first stage of this process in Australia and Canada. It highlights difficulties with both approaches, and recommends replacing the current two-stage process with an integrated, single-stage approach.

Personality disorders and forensic assessments: The benefits of ICD-11.

A recent landmark case in the Australian state of Victoria clarified the ways in which personality disorders may be taken into account when the courts are sentencing convicted offenders. The ruling especially emphasised: the need for evidence to be 'cogent'; the need to determine 'severity' of the personality disorder; the need to consider whether there is a 'connection to the offending'; the need for caution when diagnoses are based solely on behaviour; and the need to consider rehabilitative prospects and community protection. The ruling has significant implications for how forensic experts in all jurisdictions might most effectively assist the courts with the task of sentencing offenders with personality disorders. In this paper we argue that the approach to diagnosis taken in the newly published ICD-11 manual, that eschews 'categories' of personality disorder, in favour of a dimensional model supported by trait theory, is of much greater utility to forensic mental health experts striving to address these issues, compared to traditional 'categorical' approaches.