Donna-Maree Cross, Barrister at Lorne Street Chambers outlines how mental health considerations factor into sentencing, with practical insights into approaching sentencing hearings for those with mental health concerns. She will delve further into this topic at the Sentencing in Criminal Law: Critical Issues and Recent Cases on Thursday 10 June.
Estimates as high as 91 per cent have been recorded for those in our criminal justice system who have faced a mental health disorder at some point in their lifetime (with 62 percent having received such a diagnosis in the preceding 12 months).[i] Regardless of any contest around percentages, clearly practitioners are required to be familiar with how mental health concerns can and do factor into sentencing processes and outcomes, and how to best advocate for our clients as and when these concerns do arise.
The plethora of authorities and experts in the area can be daunting. This is undoubtedly a difficult area of the law. Aspects of it continue to perplex legal academics and practitioners alike. However, from a practical perspective, there are some key tenets that guide practitioners facing such concerns with any client encountering criminal prosecution. This article aims to provide an overview of the field as something of a roadmap for practitioners.
The rise of mental health advocacy
“When mental illness is a factor in lawlessness and that fact is ignored, the result can be an unproductive recycling of the perpetrator through the criminal justice system.”[ii]
We do not have dedicated Mental Health Courts in New Zealand. Overseas, such specialist Courts deal with mentally-ill defendants and have as their primary purpose diverting those participants into mental health services.
The premise for Mental Health Courts, though, is incorporated into our system in other ways. That premise is that offending committed by mentally ill persons essentially derives from an inability, or materially reduced ability, to control or manage mental health symptoms – rather than from any more deliberate criminality.[iii] On that basis, treatment is prioritised to punishment.
Regrettably, a large number of mentally ill offenders in our legal system do not receive treatment (either at all or, often, insufficiently) for their mental health issues. There appear to be three key causes for this. These are that:
- The ability of the Court to order transfer of a mentally-disordered person to a hospital or secure facility under section 34(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2011 (CP (MIP) Act) has depended significantly on the availability of secure forensic beds.[iv]Likewise, Corrections staff have been limited in transferring mentally-disordered prisoners to hospital under sections 45 and 46 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA).[v]
- Offenders who do not meet the definition of “mentally disordered” under the MHA, but nevertheless suffer from some form of mental disability or impairment, face very limited options for a dedicated treatment programme. A sentence of supervision (or intensive supervision) is the obvious option, but clearly will not be available in many cases, including where imprisonment or home detention is ordered.
- If prison is the sentencing outcome, offenders who do not meet the definition of “mentally disordered”, for whom a secure bed is available, are left with simply accessing mental health services provided in prison.
Against that reality, it is obviously essential that practitioners utilise the legal authorities and avenues that are available to best advocate for clients facing criminal prosecution as well as mental health concerns.
The key authorities and avenues
Mental health concerns interface with sentencing in a number of ways. In terms of the sentencing process itself, they may be factored in when:
- Setting the starting point;
- Discounting for personally mitigating features; and
- Determining the type of end sentence mandated in the particular case.
More broadly, they may justify adjournment of sentencing under section 25 of the Sentencing Act 2002 (Sentencing Act) to enable the Court to make appropriate enquiries as to the most suitable method of dealing with a case and any appropriate course of rehabilitation to be undertaken.
Further, whilst the focus of this article is on preparation for sentencing, it is equally clear that obtaining information on any mental health concerns in issue as early as possible in the prosecution process will be indispensable in ensuring the client is adequately advised and represented at the plea and trial (if any) stages also. Even in circumstances where no identifiable mental illness is diagnosed, it may be that the information obtained in the form of mental health assessments and reports identifies a need for communication assistance under section 80 of the Evidence Act 2006. That is of obvious importance to ensuring that the defendant understands the proceedings and participates meaningfully with that knowledge.
Against that background, it becomes apparent that securing a record of the defendant’s mental health history as well as up-to-date expert reports is important for providing an appropriate evidential foundation for counsel to assess the available options, and ultimately for the Court to apply the relevant statutory provisions and case authorities.
Turning to some of the key authorities and avenues to be aware of in this field, reference is made (by way of introduction) to:
- The assessment of culpability for starting point For any offence, culpability can vary widely – and this includes for mental health reasons. Section 8(a) of the Sentencing Act is the starting point in this context.
An example towards the more serious end of our criminal calendar is R v Johnson  NZHC 169. In that case, an offender received an end sentence of home detention for attempting to drown her severely disabled son. Importantly for present purposes, the Court found that her severely disturbed mental state greatly reduced her culpability and affected the gravity of the offending. That impacted the starting point adopted as well as the type of end sentence imposed. In this context, the existence of a causal link with the offending in question should be evidenced for the sentencing court.
- The adherence to principles against disproportionate severity and in favour of rehabilitative purpose The Court must take into account the particular circumstances of an offender that mean a sentence or other means of dealing with him or her that would otherwise be appropriate would, in the particular instance, be disproportionately severe. This is provided by section 8(h) of the Sentencing Act. So too the Court must take into account the offender’s personal background in imposing a sentence or other means of dealing with him or her with a rehabilitative purpose (per section 8(i) of the Sentencing Act). Personal circumstances and personal hardship, including in the form of significant mental health problems that would be exacerbated by incarceration (for instance), can result in a determination that what would otherwise be an appropriate term of imprisonment would be disproportionately severe in the particular case. An example is found in Zheng v R  NZCA 451 (note that other factors included the offender’s poor physical health and very limited command of the English language). Similarly, an offender’s ill health or medical condition can justify reducing the term of imprisonment that would otherwise be ordered. However, care is taken by the Courts with this. The key is to identify how the length of an otherwise appropriate term would be disproportionately severe because of the offender’s mental health position. Consideration to whether such can be appropriately catered for within the prison environment will be an important factor. Likewise, a similar approach applies where imprisonment would impose a serious risk to the health and safety of the offender because of his or condition and which cannot be sufficiently managed within prison.
- The assessment of personally mitigating featuresCompletion of a treatment programme addressing a mental health factor causative (at least in part) of the offending will be important to put before the sentencing Judge. This may be the case in instances such as bi-polar disorder where such has substantially contributed to the tendance to anger or aggression evident in the offending before the Court (an example is found in R v Bridger  1 NZLR 636 (CA)). It has also been identified in some cases of post-traumatic stress disorder (see R v Mohamed  NZCA 170).
- Determining the appropriate type of sentencing outcomeReference beyond the Sentencing Act is mandated when considering potential sentencing outcomes.Section 34(1)(a) CP (MIP) Act
The aim of this provision is to provide the Court with a therapeutic option for dealing with a defendant with a mental disorder or intellectual disability, as defined, whilst also ensuring that the traditional goals of punishment, responsibility, and protection of the community are met.The requirements under section 34 are that the person is:
- Convicted of an imprisonable offence;
- Sentenced to a term of imprisonment;
- Either “mentally disordered” or “intellectually disabled” in the relevant sense – and that:
- Such requires “compulsory treatment or care”; and
- Such a course of action is in the best interests of the defendant or for the safety of the public or any other person.
In those circumstances, the Court may make an order for detention in a hospital or secure facility under the MHA or Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDA).
However, if at any stage the defendant, being treated under the MHA or IDA during the term of the sentence, ceases to be “mentally disordered” or “intellectually disabled”, then they must be transferred back to prison to fulfil the remainder of their sentence (per s 84(1) of the MHA).
Further, if he or she remains “mentally disordered” or “intellectually disabled” at the expiration date of the sentence of imprisonment, then they remain detained, transferring from “special patient” to “compulsory patient” under the MHA, and from “special care recipient” to “compulsory care recipient” under the IDA.
Given the background sentence of imprisonment in place, this provision is usually utilised for the more serious of offending where principles of deterrence and protection of the public are to the fore.
Section 34(1)(b) CP (MIP) Act
This provision provides for the convicted defendant to be treated as a “compulsory patient” under the MHA or “care recipient” under the IDA. Unlike section 34(1)(a), there is no background sentence of imprisonment. As a result, under this provision, the defendant is released if and when he or she ceases to be “mentally disordered” or “intellectually disabled”, as defined. As a result, such a provision is usually utilised for less serious offending – although not at such a low level as supervision and intensive supervision may address.
Sections 45 to 54A of the Sentencing Act
A sentence of supervision may be appropriate where it would reduce the likelihood of further offending by the person through their rehabilitation and reintegration.
“Special conditions” can be imposed, including receipt of psychiatric or other counselling, attendance at a medical and/or rehabilitative programme, and taking of prescription medicine (refer sections 51 and 52). However, as specified by section 50, before imposing any special condition(s) related to a programme, the Court needs to be satisfied that:
- There is a “significant risk of further offending”;
- Standard conditions alone would not adequately reduce that risk; and
- The person requires a programme to reduce the likelihood of further offending through his or her rehabilitation and reintegration.
Each sentence is of a set duration. Supervision is set between 6 months and 12 months. Intensive supervision may be up to 2 years.
There of course is no requirement to meet any definition of “mentally disordered” or “intellectually disabled” for either sentence to be imposed.
It is well known that many of those who face criminal prosecution in our legal system face mental health difficulties, to a lesser or greater degree.
A central concern for practitioners is to ensure that those in this situation, and therefore vulnerable in a particular sense and with associated special needs, receive the best representation possible at sentencing (and indeed more broadly). Key to that is an understanding of the avenues available to investigate, and potentially pursue, to assist in addressing both the best approach to sentencing process and outcome in the particular case as well as the offender’s underlying treatment needs. This is to the benefit of the person himself or herself, those impacted by his or her case, and indeed the public interest more generally.
If you are interested in learning more about how mental health considerations factor into sentencing, and how best to approach these cases, you can attend the upcoming Sentencing in Criminal Law: Critical Issues and Recent Cases in June 2021, where the programme offering includes a presentation on this topic.
[i] Devon Indig, Craig Gear and Kay Wilhelm Comorbid substance use disorders and mental health disorders among New Zealand prisoners (2016) at 9.
[ii] Judith Kaye NYS Office of Mental Health Release (25 November 2002) as cited in Matthew D’Emic “The Promise of Mental Health Courts: Brooklyn Criminal Justice System Experiments with Treatment as an Alternative to Prison” (2007) 22 Crim Just 25 at 28.
[iii] Richard Schneider, Hy Bloom and Mark Heerema Mental Health Courts: Decriminalising the Mentally Ill (Irwin Law, Toronto, 2007) at 5.
[iv] Beverly Wakem and David McGee Investigation of the Department of Corrections in relation to the Provision, Access and Availability of Prison Health Services (Presented to the House of Representatives 2012) at 153.
Donna-Maree Cross is a barrister practicing from Lorne Street Chambers. She is a specialist in criminal defence and privacy law. Connect with Maree via LinkedIn .