Monash University

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Sentencing offenders with mental health problems: a principled approach

posted on 2017-02-26, 23:33 authored by Walvisch, Jamie Mark
It is widely acknowledged that a significant proportion of offenders suffer from mental health problems. While much has been written about the circumstances in which such offenders should be held responsible for their actions, or should be considered fit to stand trial, little academic work has been done to examine the ways in which their mental health problems should be taken into account in sentencing. This thesis addresses that gap. Part One of the thesis examines the current approach to this issue. It begins by examining the data concerning the incidence of mental health problems amongst offenders. These data indicate that as many as 90 percent of offenders may suffer from mental health problems. This establishes the importance of ensuring that the sentencing system is capable of dealing with the complexities raised by mental health problems in a just and principled fashion. The thesis next focuses on the ways in which mental health problems are currently taken into account in sentencing offenders in Victoria, Australia’s leading jurisdiction in this area. It provides the first comprehensive analysis of the 465 higher court cases in which this issue has been raised since 2007. It highlights a number of problems with the Victorian approach, and argues that the only way to overcome these problems is to reform the sentencing framework. Part Two of the thesis develops a new sentencing framework. This framework is based on Antony Duff’s account of punishment, which holds that the purpose of punishment should be to communicate the censure offenders deserve for having committed a crime, in the hope that they will repent, reform and be reconciled with the community. The thesis contends that Duff’s theory of attacks and endangerments should be used to determine the seriousness of an offence, and uses this theory to create a novel approach to determining a proportionate sentence. It also sets out the circumstances in which it is appropriate to alter or remit an offender’s punishment on the grounds of mercy, and the types of sanction that may be used to achieve the purposes of punishment. Part Three of the thesis shows how this new sentencing framework would operate when sentencing offenders who suffer from mental health problems, and demonstrates the merits of the framework. It examines the different points at which an offender’s mental health problems may need to be taken into account by a sentencer: when assessing the offender’s level of culpability; when ascertaining the appropriate mode of punishment; when determining the severity of the sanction to impose; and when considering whether the offender should be shown mercy. It outlines the types of mental health problems that should be taken into account at each of these points, and the circumstances in which they will be relevant. It concludes by establishing a clear four-stage process that a sentencer should follow in sentencing offenders with mental health problems.


Campus location


Principal supervisor

Patrick Emerton

Additional supervisor 1

Bernadette McSherry

Year of Award


Department, School or Centre



Doctor of Philosophy

Degree Type



Faculty of Law

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