Psychology and Human Mind

It is the awareness, of course, which is the foundation of the attribution of legal responsibility

As it was drawn in Green v The Queen,  [2011] VSCA 311, [23]

Criminal responsibility ‘is founded in capacity’

‘In Search of Criminal Responsibility’( Oxford University Press, 2016, pp 27–31) Professor Nicola Lacey explores the idea that criminal responsibility ‘is founded in capacity’.

At the heart of this vision of criminal responsibility, she says, is: the notion of an agent endowed with powers of understanding and self-control.

‘Capacity responsibility’ assumes that we are responsible for the specific acts which we choose to do. In this sense, criminal law:

In Professor Lacey’s view, human agency is the key. An attribution of responsibility for specific actions:

And further:

Offenders are only punished to the extent justified by their culpability and degree of responsibility for their offences

In Director of Public Prosecutions v Herrmann,[ [2021] VSCA 160, [13]–[14] the Court of Appeal said:

In R v Verdins [(2007) 16 VR 269]

Significance of assessing moral culpability

The Court there said:

• a.  Impairing the offender’s ability to exercise appropriate judgment;

• b.  Impairing the offender’s ability to make calm and rational choices, or to think clearly;

• c.  Making the offender disinhibited;

• d.  Impairing the offender’s ability to appreciate the wrongfulness of the conduct;

• e.  Obscuring the intent to commit the offence; or

• f.  Contributing (causally) to the commission of the offence.

Again in Director of Public Prosecutions v Patterson[2009] VSCA 222, [47]–[49], the Court said:

Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?

In Carroll v The Queen[[2011] VSCA 150, [20]–[22] the Court said:

Sentencing judge had failed to give sufficient weight to his personality disorder

R v Hatherley (Victorian Court of Criminal Appeal, Young CJ, King and Beach JJ, 6 February 1986)

In R v Hatherley, the offender had a severe personality disorder, which created a strong tendency to sexual deviation. He was convicted, inter alia, of multiple counts of aggravated rape. On appeal, it was argued that the sentencing judge had failed to give sufficient weight to his personality disorder. While the Court accepted that ‘where an accused is mentally defective or psychiatrically disturbed little weight should be given, on sentence, to general deterrence’, it held that personality disorders should not be equated with ‘mental deficiency or psychiatric disturbance’, and so should not provide a basis for reducing the importance of general deterrence as a sentencing consideration. The Court based this decision on its understanding of the underpinnings of the Mooney principle:

The basis for treating someone who is mentally deficient or the subject of psychiatric disturbance as not an appropriate vehicle for the imposition of a sentence which reflects general deterrence is that such a person may be taken not fully to comprehend the nature and quality of the acts that he or she has done, or not fully to comprehend that those acts are wrong. If that is … the true basis of the decisions to which I have referred, then I think it is plain that what is described as a personality disorder or a personality defect cannot be equated with mental deficiency or psychiatric disturbance.

Serious psychiatric illness not amounting to insanity

The Victorian Court of Appeal provided an overview of five ways in which ‘serious psychiatric illness not amounting to insanity’ could affect the sentencing determination:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health. [R v Tsiaras [1996] 1 VR 398, 400 (Charles and Callaway JJA and Vincent AJA).

An offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins. Statements to the contrary in O’Neill should no longer be followed. Whether and to what extent the offender’s mental functioning is (or was) relevantly impaired should be determined on the basis of expert evidence rigorously scrutinised by the sentencing court. [DPP v Brown [2020] VCC 196, [3]]

Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR)

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR) features the most current text updates based on scientific literature with contributions from more than 200 subject matter experts. The revised version includes a new diagnosis (prolonged grief disorder), clarifying modifications to the criteria sets for more than 70 disorders, addition of International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-10-CM) symptom codes for suicidal behavior and nonsuicidal self-injury, and updates to descriptive text for most disorders based on extensive review of the literature. In addition, DSM-5-TR includes a comprehensive review of the impact of racism and discrimination on the diagnosis and manifestations of mental disorders. The manual will help clinicians and researchers define and classify mental disorders, which can improve diagnoses, treatment, and research.

To create the DSM-5, the APA gathered more than 160 mental healthcare professionals from around the world, including psychiatrists, psychologists and experts from many other professional fields.

The types of conditions that can be found in the DSM-5 include: