Sentencing offenders with self-induced mental disorders: towards a theory of meta-culpability

Abstract

Around Australia, the Verdins principles govern the sentencing of offenders with mental health problems. The first Verdins principle holds that mental health problems may reduce an offender’s culpability, and thus the punishment that is considered just in the circumstances. But how should this principle be applied where the offender’s mental health condition was triggered by drug use, or by a failure to take prescribed psychiatric medication? Should the offender be precluded from relying on the principle because of the self-induced nature of their condition, or should they continue to receive a sentencing reduction because their mental functioning was impaired at the time of the offence? This article analyses the way in which Australian courts have addressed this issue to date, highlighting key problems with the current approach. It uses Duff’s account of crime and punishment to sketch out an alternative approach that focuses on the offender’s ‘meta-culpability’: their culpability for the reduced level of culpability ordinarily associated with impaired mental functioning. It concludes by demonstrating how that approach would work in practice, by applying it to the facts of a recent Victorian criminal case. Keywords: communicative retributivism; culpability; drug-induced mental health problems; medication non-adherence; mental disorder; mental health; mental illness; punishment theory; sentencing; Verdins principles.