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Tq~' Lpg·. W..VD If you have issues viewing or accessing this file contact us at NCJRS.gov. -- --- ---.--------- ---~ -----~-------- ---- -- /' JUST DESERTS FOR THE MAD .';-~~. .' . ...,..__:~ ... " d' '0" !'1I . u o ~, CI 0 () " 0 '';:. ~! ,0 [c6E:~··lMtAJD)': lpG·. W..VD"·, tQ~' u, ' 1:1 o ,<;to, • '" , " . ]' ~- "oJ {} " ,G , " • 0 " .( o ,;:'._ 0 ., o 0"1 " ' (} 01 '\ °'0' (~." m J . ,_---:":-.."-,-,...;.......:;.......-~----...-~ ,------'-') Just Deserts for the Mad Ivan.Potas .. U.S. Department of Justice 83828 National Institute of Justice This document has been reproduced exactlias received from the person or organization originating it POints of view or opinions stated in this document are those of the authors and do not necessarily Justice.represent the official position or pOlicies of the National Institute of Permission to reproduce this copyrighted material in mi­ croflc~ only hasf~en graQted b,y • t t 0 f AUStra lan lnStl U e Crimlnology to the National Criminal JUstice Reference Service (NCJRS). F.urther reproduction outside of the NCJRS system requires permis­ SiOh of the copyright. owner. AUSTRALIAN INSTITUTE OF CRIMINOLOGY Preceding page blank ." Published and printed by the Australian Institute of Criminology, 10-18 Colbee Court, Phillip, A.C.T., Australia. 2606. First published 1982 . ~} © Australian Institute of Criminology 1982 For Nadia, Jason and Michael Potas, I.L. (Ivan Leslie), 1944-. Just Deserts for the Mad. Includes index. ISBN 0 642 89248 2. 1. Insanity - Jurisprudence - Aus,tralia. 2. Civil rights I. Australian Institute of Criminology. H. Title. Australia. 345.94'056 > (~ Preface Some years ago I came across a, particularly interesting trial involving a plea of diminished responsibility. I w~s concerned to note that although the plea was successful, the offender Was sentenced to penal servitude for life - the same sentence that he would have obtained had he been convicted of murder. This was despite the fact that the circumstances of the offence and the background of the offender contained weighty mitigating factors which, under ordinary sentencing principles, clearly justified a more lenient sentence. Of particular significance was the fact that the prisoner was thought to have permanent brain damage. The 'maximum penalty was imposed not because it was deserved but because, in the view of the trial judge, the prisoner presented a continuing threat to the safety of the community and could not be released while hi,S mental infirmity remained. Presumably, as the prisoner's prognosis suggested incurability, ,he could not realistically hope to be released within his lifetime - a consequence more devastating than a normal sentence of life imprisonment. This decision did not seem/tight and while I was busy consider­ ing my objections to it, the Ptisoner, Veen, appealed to the High Court of Australia. By majority the Justices of the High Court held that wrong sentencing prin~iples had been applied. The Court, among other things, emphasi~,~d the importance of ensuring " that sentences should not exceed the punishment merited by the offence. I was particularly impressed by the judgment of Murphy J. who considered that it was inconsistent with the aims of the criminal law, indeed 'a distortion' of the criminal law, to sentence offenders to longer terms than deserved on account of their mental illness or diminished responsibility. His Honour added that if the community required additional protection from the offender than that afforded by imposing the deserv~d punishment, then this Preceding page blank ' a viii JUST DESERTS FOR THE MAD PREFACE should be achieved, if it could lawfully be achieved, by methods mentally disordered offenders within the bounds of conventional outside the criminal justice system. criminal justice concepts. It purports to provide a basis for the In this book I attempt to resolve some of the major practical development of a flexible dispositional system that functions in and conceptual difficulties presented by the mentally dis~rdered a way. that is just and humane, honest and fair, for those persons offender in the criminal justice and correctional systems. My who fmd themselves at the interface of criminal law and mental arguments are based on a belief that both the community and the health procedures. judiciary have· developed a false or unrealistic expectation of the ability of the criminal justice system to effectively protect the community through its sentencing policies. So long as the limits of the criminal justice system as a means of protecting society fail I. Potas to be recognised, unnecessarily harsh penalties will continue to October, 1981 be imposed without commensurate gains in the quality of life. Throughout this book therefore, I examine, in greater or lesser depth, the dividing line, between the bad and the mad, between treatment and punishment, between concepts of responsibility and non~responsibility, between non-culpability and culpability, between civil commitment and criminal punishment, and in general terms, between utilitarian and retributive constraints upon the quest for community protection. Particular consideration is given to the power of the courts to deal with mentally disordered offenders and to the adequacy (or inadequacy) of facilities or penal institutions assigned with the task of containing and/or treating them. An attempt is made to explain how the penalty commensurate with the gravity of the offence can, or should be determined without seriously jeopardising either the attempt to meet the offender's mental health requirements or the legitimate demands of the community to see that justice is done. The view of just deserts advocated here is not an inflexible one that trades concern for the individual for that of crass uniformity of punishment. It is a view of 'just deserts' that is treated as a limiting rather than as a defining principle of punishment. It attempts to promote uniformity of approach in sentencing by focussing upon the degree of culpability or blameworthiness of the offender, giving due regard to the circumstances of the partic­ ular offence, and to the subjective considerations pertaining to the individual offender. It is self-evident that a just and humane society is bound to temper justice with humanity. Equally such a society should apply humane principles justly. Just Deserts for the Mad may therefore be seen as my attempt to describe an approach for dealing with -' Acknowledgernellts A significant part of this book was written while I was on study leave at the Department of Law, Research School of Social Sciences, Australian National University. Accordingly, I wish to thank all the members of that Department - Peter Sack, Sam Stoljar and Ross Cranston et al., for accepting me into their fold and pro­ ,? 1. mtrodluction ]1 viding me with the benefit of their views. I also wish to thank Towards Community Based Treatment Glenda Johnson for secretarial and typing assistance during my Limiting State Interference 5 six months stay ~t the A.N.U. The Hospital Order 8 11 Others requiring special mention for their support include Reservations Relating to Hospital Orders Desmond O'Connor from the Law School at the Australian Inadequacy of Options 13 National University, John Mackay and Ron McEwing from Tas­ 16 mania, Greg Woods from New South Wales, Peter McMahon and Don Thomas from the Commonwealth Attorney-General's Depart­ 2. The Meaning of 'Mental IIIIl«!§§' ment, and W. Mickelburgh and John Salt from the A.C.T. Health Fluctuating Meanings 18 Commission. I am also indebted to my Institute colleagues, Models of Madness 19 particularly John Braithwaite, Grant Wardlaw and the Director, Mental Dysfunction 24 William Clifford, all of whom provided comments on parts of the Narrowing the Definition 26 manuscript. 28 In addition, I am indebted to Barbara Jubb for her perseverance with the typing of the manuscript and for her assistance with 3. Disposal[ of Insane Persons proof-reading. I also acknowledge the contribution of Jack Sandry, Development 31 H~storical 31 the editor of the Institute's publications and thank Christine Grant DIsposal of Forensic Patients in the A.C.T. who was responsible for the typesetting and layout. The Colonial Secretary 35 Little Progress in the A.C.T. 40 41 Terminological and Procedural Variations 42 Jud~cial Discretion .and the Qualified Acquittal 44 UnfItness to Plead In the Northern Territory R. v. Goonringer 46 48 ]1 The Tasmanian Approach . >, 49 Statute of Limitations for Unfitness to Plead 50 :1 ! Preceding page blank . Prtm~eding page blank } I! xiv JUST DESERTS FOR THE MAD 4. The Insanity Defence The M'Naghten Rules Justifying Detention of Insane Persons The Future of the Insanity Defence The Special Defences The Utility of the Insanity Defence Insanity under Commonwealth Law Summary of Recommendations and Observations 5. Involuntary Commitment Freedom from Interference Police and the Mentally III Australian Federal Police Escorts Admission Procedures in the A.C.T. Reform Required Treatment Orders for the A.C.T. Distinguishing Civil and Criminal Orders 6. Sentencing Options and Facilities in the A.C.T. Power to Remand for Psychiatric Assessment Deportation to New South Wales R. v. Riley R. v. Smith A Protective Care Ward for the A.C.T. Possible Locations for a Medium Security Ward Watson Hostel 7. Facilities and Standards of Treatment The Displacement Effect of Open-Door Policies Psychiatric Services in N.S.W. Prisons An Uneasy Division of Responsibility Recommendations of the Nagle Report The Psychiatric Prison Hospital Guidelines for Treatment A Therapeutic Bill of Rights? The A.M.A. Guidelines -.--- ----------~------::----~ L~·· , \ , " ! i, ,~- \ TABLE OF CASES xvii [ \ i I - v. Kemp [1957] 1 Q.B. 339 ............................n.68 T able of Cases ~ - v. Kocan (1966) 84 W.N. (Pt.1) (N.S.W.) 588 ............ n.22, n.364 - v. Langley (1970) 70 S.R. (N.S.W.) 403 ....................n.349 n. refern to running footnotes Lyons v. R. (1974) 3 A.LR. 553 ........................... 188 R. v. Moylan 53 Cr.
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