Common Law Sentencing of Mentally Impaired Offenders in Australian Courts: A Call for Coherence and Consistency

Abstract

This article discusses the common law sentencing of mentally impaired offenders in Australian courts. In Part A, the author discusses the significant correlation between mental impairment and crime. In Part B the author considers how courts have used different sentencing purposes (incapacitation, rehabilitation, deterrence, and proportionate retribution) in determining appropriate sentences for this class of offender. The author highlights the inconsistencies that have developed within and between jurisdictions. In Part C the author argues that the inconsistencies have arisen as a result of the theoretically incoherent use of general deterrence, rather than proportionality, as a site for the consideration of diminished offender culpability.