ABSTRACT
In the leading Australian case of R v Verdins (2007) 16 VR 269, the Victorian Court of Appeal held that an offender’s mental health condition may affect a sentencing judge’s assessment of (i) culpability; (ii) the kind of sentence to be imposed; (iii) general deterrence; (iv) specific deterrence; (v) the burden of the sentence; and (vi) the effect of imprisonment. While these principles have been addressed in over 500 sentencing decisions in Australia and New Zealand, there has been very little discussion of the second principle. This chapter addresses that gap. It starts by outlining the circumstances in which courts have held that an offender’s mental illness or mental disorder should affect the kind of sentence to be imposed, and the conditions in which it should be served. It then examines two different notions of capacity that are implicit in the courts’ approach to this issue, and the courts’ justification for mandating mental health treatment. It concludes by critiquing the current framework, and suggesting a revised approach to the second Verdins principle.
