The fraught issue of how we deal with mentally ill offenders

Convicted killer Arthur Freeman is led away from the Supreme Court in Melbourne. AAP

Arthur Freeman’s involvement in an altercation in Victoria’s Barwon prison this week has again highlighted the fraught issue of how we deal with offenders who commit crimes that many of us assume could only be carried out by someone with a mental illness.

When Freeman faced trial for throwing his daughter over the West Gate Bridge, there was never any question about whether or not he did it.

The issue for the jury was whether he should be convicted of murder, or whether he was so mentally ill at the time of the killing that he should be found “not guilty because of mental impairment”.

His lawyer neatly summarised this issue by asking “Was Mr Freeman mad or was he bad? Should he be condemned forever for the killing of his daughter or should he ultimately be treated until he’s well enough to function in society?”

These are familiar questions, having been asked many times since 1843, when the defence of “insanity” was developed. According to this defence (and its modern equivalents) people are not responsible for their acts if, at the time they committed those acts, they were suffering from a mental illness that caused them either to not understand their nature and quality, or to not know that they were wrong.

These requirements have been interpreted very strictly, so it is not surprising that many people who try to raise the defence, such as Arthur Freeman, ultimately fail. That does not mean, however, that they were not suffering from a mental illness when they committed the offence. For example, when sentencing Mr Freeman, the judge accepted that he was suffering from a depressive illness when he killed his daughter. However, that illness was not severe enough, or of the “right kind”, to satisfy the test for the defence of mental impairment".

This raises an interesting question that has received little attention to date: when and how should the fact that a person suffers from a mental illness be taken into account when sentencing convicted offenders?

In answering this question, the High Court of Australia has focused on the need for judges to balance two conflicting matters. On the one hand, they must take into account the fact that the offender’s blameworthiness may be reduced by the mental illness, calling for a lesser sentence. On the other hand, they must take into account the possibility that the offender may pose a greater danger to the community due to that illness, suggesting the need for an increased penalty.

While this approach has the appeal of simplicity, it provides little guidance to judges. How are they supposed to resolve this conflict? When exactly is a person’s ‘blameworthiness’ reduced on account of mental illness? How is this to be balanced against questions of “risk”? In addition, its focus on the “risks” posed by offenders with mental illnesses reinforces negative stereotypes of people with mental illnesses as being “dangerous”.

A more sophisticated approach has been taken by Victorian courts, which have identified at least five circumstances in which a mental illness should lead to a reduced sentence:

  1. If it [the illness] reduces the offender’s moral culpability, for example by impairing the offender’s ability to think clearly;
  2. If it makes it inappropriate to sentence the offender in order to “set an example” to others;
  3. If it makes it inappropriate to sentence the offender in order to deter him or her from reoffending;
  4. If it means that a sentence would weigh more heavily on the offender than on a person in normal health;
  5. It imprisonment is likely to have a significant adverse effect on the offender’s mental health.

Victorian courts have also held that the existence of a mental illness can affect the kind of sentence that should be imposed. For instance, an offender with a mental illness may be sent to a hospital instead of a prison.

While this approach is preferable to the more simplistic focus on blameworthiness and danger, it also leaves a large number of questions unanswered. For example, when is a person’s ability to “think clearly” sufficiently impaired to require a reduced sentence? Why is it inappropriate to use offenders with mental illnesses to “set an example” to others?

It seems likely that the answers to these questions can only be found by closely considering the reasons why we sentence offenders, and carefully relating them to the issues raised by mental illness. This will not be an easy task, for sentencing is a contentious issue, and the problems involved in applying sentencing theories to the area of mental health are complex.

Yet given the prevalence of offenders who suffer from mental illnesses (one study in a Melbourne prison found 82% of those surveyed to have at least one mental disorder), it is essential.

Otherwise, the law in the area is likely to be developed in an ad hoc fashion, rather than being founded on well-developed guiding principles – and that will prevent those who suffer from mental illnesses from being treated fairly and consistently by our criminal justice system.