Mental illnesses are being exploited by some defence lawyers to reduce sentences for people found guilty of serious offences, despite a lack of evidence linking the ailments to criminal behaviour, mental health experts say.
Groups including the Mental Health Council of Australia and beyondblue have urged more rigorous psychological examinations of people charged with crimes when mental illness is claimed in mitigation. They say those with mental health problems are more likely to be victims of crime than perpetrators.
One senior prosecutor said defence lawyers were exploiting a Victorian Court of Appeal decision in 2007 that reduced the moral culpability, but not legal responsibility, of those diagnosed with mental disorders.
Mental Health Council of Australia chief executive Frank Quinlan said there were doubts about the diagnosis of some mental illnesses. Distinctions between normal sadness and clinical depression were still widely debated in the mental health profession, he said.
”It seems to me, that on the back of the very poor evidence we have, there is no prima facie case of a link between crime and mental illness.”
Mr Quinlan was critical of a recent attempt by a defence lawyer to seek leniency for a client with depression, after the man was found guilty of downloading child pornography.
”Some people who suffer severe psychotic conditions may have an argument about not being able to form intent, but those suffering high-prevalence mood disorders such as acute anxiety and depression have an inability to find motivation and plan, which would obviously impact their ability to commit a crime,” he said.
His claims are at odds with a Corrections Victoria report that found almost half of adults in custody had a history of mental illness and 34 per cent of children in detention centres had psychological disorders. Beyondblue estimates major mental illnesses are up to five times more prevalent among prisoners than in the general community.
Law Institute of Victoria president Michael Holcroft said there was a correlation between mental disorders and a range of criminal behaviour. It was ”totally appropriate” for a lawyer to raise mental health when entering a pre-sentencing plea, Mr Holcroft said.
”People under the influence of drugs and alcohol or suffering from mental health episodes are far more likely to get themselves into trouble than the standard person in the street. And to avoid re-offending, the courts need to address the underlying source of the problem.”
He said lawyers relied on expert medical opinion and had a responsibility not to mislead the courts.
”To say there is no link between crime and mental health is extraordinary. People come before the courts with myriad issues,” Mr Holcroft said.
In 2010, the Magistrates Court set up a specialist court and program to provide extra support for the rising number of accused people claiming to have depression and other mental disorders. At the time, magistrate John Lesser said more than a third of those who appeared before Victorian courts had some form of mental illness.
But Superintendent Spiros Kalliakmanis, of the police prosecutions division, raised concerns about the growing number of cases diverted to the specialist court. ”It is a matter for the court to determine the legitimacy of a plea. However, any abuse of these jurisdictions and services has an impact on the ability to offer quality services to members of the community who are in real need,” he said.
Beyondblue chief Kate Carnell said depression had no bearing on a person’s propensity to commit a crime.
”The reality of mental health issues is people don’t do things that they wouldn’t otherwise do or behave dramatically out of character. Magistrates should listen to the mental health experts and make sure that the information that is being presented in court is evidence based,” she said.
Kristen Hilton, director of civil justice at Victoria Legal Aid, said about 20 per cent of its clients had mental health problems. ”The research and our practical experience shows that someone with a mental health issue is far more likely to come into contact with the criminal justice system.
”I would hope there’s a general community consensus that someone’s mental condition should be taken into account during sentencing,” she said.
A spokesman for Attorney-General Robert Clark said genuine mental illness was relevant in sentencing. ”But claims of mental illness should not be used as an excuse to avoid responsibility for culpable conduct.”
As first appeared in The Age, 20 May 2012
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