The guidelines seek to redress this lacuna and are reflective of the broader efforts across society to understand and de-stigmatise such conditions.
The guidelines stipulate that “the fact that an offender has an impairment or disorder should always be considered by the court, but will not always have an effect on sentencing”.
Each case will be fact specific and an individualistic approach to sentencing is encouraged, taking into account the wide range of disorders and the varying levels of impairment between individuals.
A formal diagnosis is not always required and sentencers are urged to consider common issues, including: fluctuation of conditions, the fact that some impairments or disorders are not easily recognisable, the interplay of different conditions and the fact that the offender may be unaware or unwilling to accept that they have such an impairment or disorder.
These issues resonate loudly in relation to ABI / TBI cases, where complex cognitive, psychological, emotional and behavioural effects of a brain injury can be difficult to detect, are often hidden, but have devastating and permanent effects on an individual.
The progressive tone within the guidelines continues by highlighting the importance of taking into account relevant cultural, ethnicity and gender considerations – together with the potential stigmas that may be attached to each.
The culpability of an offender is to be considered in the first instance in accordance with offence-specific guidelines. Consideration should then be given to whether that culpability is reduced by reason of the impairment or disorder.
Culpability “will only be reduced if there is sufficient connection between the offender’s impairment or disorder and the offending behaviour”.
The question of what amounts to a “sufficient connection” will no doubt be one that comes before Courts many times in the future.
It is for the sentencer to make an assessment of culpability taking into account all relevant information, but they are not bound to follow any expert opinion that is obtained during this process if there are compelling reasons not to do so.
The sentencer will need to consider whether the impairment or condition effected the offender’s ability to exercise appropriate judgement, make rational choices or understand the nature and consequences of their actions.
The impact of any disinhibition, medication (including “self-medication”) and the offender’s insight (or lack thereof) are all relevant to such considerations.
Where the impairment or disorder is linked to the offence, then it may be relevant to the decision about the type of sentence imposed, the length of any custodial sentence, or the assessment of whether an offender is considered dangerous.
For less serious offences, the Courts can impose a range of sentences including: criminals fines, community sentences, mental health treatment requirements or drug and alcohol programs.
The guidelines say that in cases where a custodial sentence is to be considered, “the impairment or disorder may make a custodial sentence disproportionate to achieving the aims of sentencing, and that the public are better protected and crime reduced by a rehabilitative approach”.
It is the role of the sentencer to ensure that the offenders themselves are able to understand their sentence and the consequences of re-offending or breach of its’ terms.
It is yet to be seen whether there will be any discernible effects on sentencing behaviour as a result of these guidelines, but taking this step towards ensuring greater fairness and transparency for all involved in the criminal justice system is clearly one in the right direction.
Angela Batchelor is a senior associate at Irwin Mitchell LLP.
