Substantial Impairment Defence

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Substantial impairment is a partial defence used by people suffering from a mental condition short of qualifying as a 'disease of the mind' under the insanity defence. It is a partial defence in the sense that its sole effect is reducing a murder charge into manslaughter.

Substantial impairment is argued as follows (: s 23A of the Crimes Act 1900 (NSW)):

  • After the prosecution has proven everything else, the defence has to prove on the balance of probabilities (: s 23A (4)):
    1. At the time of the act/omission, the defendant was suffering from an abnormality of the mind which affected his capacity to (:s 23A (1) (a)):
      1. understand events, or
      2. judge whether his actions were right or wrong, or
      3. control himself.
      • This includes a situation where the defendant knew his actions were wrong but could not control himself: Byrne.
      • 'Abnormality of the mind' is a state of mind so different from the ordinary person that a reasonable person would term it abnormal: Byrne.
    2. This abnormality is a result of an underlying condition: s 23A (1) (a):
      • 'Underlying condition' is a pre-existing mental or psychological condition. Cannot be a transitory conditions: s 23A (8).
      • To be decided by use of expert evidence: Byrne.
    3. The impairment was so substantial as to warrant liability for murder being reduced to manslaughter: s 23A (1) (b).
      • This is a matter for the jury to decide: Byrne.
      • A big emphasis is placed on whether the abnormality operated in a way so that the accused could not (as opposed to 'did not') stop himself from preforming the act.
  • If the above was proven, the charge will be reduced from murder to manslaughter: s 23A (5).

When imposing a sentence for a person who has successfully pleaded substantial impairment, the court has to strike a balance between setting the appropriate punishment (based on the offence and the offender) as well as the protection of the community: Veen.[1]

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 446-555.

Introduction

[2] Substantial impairment is a partial defence for those offenders whose mental impairment is not so extreme as to qualify under the insanity defence, but nevertheless such that they should not be convicted of murder.

  • The defence is provided for in s 23A of the Crimes Act 1900 (NSW). The current form of the section applies to any charge of murder committed since its enactment (1998).
  • Substantial impairment only arises where all other issues on a charge of murder, including self-defence and provocation, have been proven in favour of the prosecution.
  • It replaced the partial defence of 'diminished responsibility'.

Abnormality of Mind

[3] The defence's full name is substantial impairment by 'abnormality of mind', which denotes the requirement of a subsisting mental condition affecting the mental capacities of the accused to:

  1. understand events, or
  2. judge whether his actions were right or wrong, or
  3. control himself.

This test allows the courts to finally deal with psychopaths who understand and judge their actions, but cannot control them (they did not qualify under the insanity defence or as involuntary under automatism).

This was discussed in Byrne (still in the time of diminished responsibility):

  • Abnormality of mind is defined as 'a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal' (ie, an objective test). This question is determined using medical evidence.
    • Abnormality can manifest itself in a range of activities, particularly the inability to control one's actions.
  • If an abnormality is established, then it is a question for the jury whether the abnormality was such that it substantially impaired the accused's mental responsibility for his act (ie, whether it was such that he could not control himself)?
    • A big emphasis is placed on whether the abnormality operated in a way so that the accused could not (as opposed to 'did not') stop himself from preforming the act.

The second part of the test in Byrne means that it is ultimately up to the jury to decide whether the abnormality operated in a way which justifies a reduced sentence. Note that the wording of s 23A is pretty much the same as the test set out Byrne.

Reliance on Medical Evidence

[4] Consistently with Byrne, s 23 clarifies the respective roles for medical experts and for the jury - it precludes expert opinion on whether impairment was so substantial as to reduce murder to manslaughter.

  • Thus, it is up to jury to decide on the basis of culpability, not complex medical opinions.

Capacity to Control

[5] The option allowing substantial impairment to those who simply could not control their actions (but could understand them to be wrong) has received considerable criticism.

  • It is thought that it would allow psychopaths to receive reduced sentences which they don't deserve.
  • Also, it is so uncertain, even with the use of experts, to determine whether a person was incapable of controlling actions, or whether the person simply chose not to do so.
  • On the other hand, if it were excluded, it was thought many people (eg, brain damaged or hypomanic people) would be unfairly excluded from its scope.
  • Thus, the new formulation requires the impairment to be ‘so substantial’ as to warrant liability to be reduced from murder to manslaughter.
    • It is hoped this would exclude psychopaths, and include the other people.
    • It is also left ultimately to be determined by the jury.

Causes of Abnormality

[6] Substantial impairment requires that the abnormality of the mind must arise from an ‘underlying condition’ defined as a pre-existing mental or physiological condition, other than of a transitory kind.

  • This does not mean the condition has to be permanent. It merely means that the condition has to be of more than a ‘conditional or transitory nature.’
  • For example, a severe depressive illness that is curable would be underlying, even though it is not considered ‘permanent’. But ‘road rage’ or other such transitory emotions would not be classed as underlying, and could not form the basis for a defence of diminished responsibility.

Reform Debate

[7] There has been an ongoing debate (which started well before the reform of 'diminished responsibility' into 'substantial impairment') about whether the defence should be amended/repealed.

Proponents of repeal or amendment of the defence have argued that:

  • The fact that someone has a mental disorder doesn't need to affect the charge of murder/manslaughter - it should instead be a matter to be taken into consideration by the judge when imposing a sentence.
    • In other words, the charge should still be murder and then the judge makes a decision whether to apply a reduced sentence because of mental disorders.
  • This ties in with the debate regarding abolition the manslaughter/murder distinction and creating one category of unlawful homicide, since there is no more capital punishment (which is why manslaughter was first created).
  • The provisions are too wide - too many people without 'real' or 'serious' disorders would be able to argue substantial impairment and get away without a murder charge.
  • A lot of these substantial impairment killings are absolutely horrific (gruesome etc) and the public is outraged when such cruelty is met with a manslaughter charge. As a result, public confidence in the system is undermined.
  • It would be better to amend and redefine the insanity defence to include substantial impairment rather than create quick fixes or 'back doors' like substantial impairment is.

Arguments against repeal/amendment include:

  • There are no empirical studies which actually show that these killings are more gruesome.
  • The latest reforms (the substantial impairment reforms of 1997) actually achieved their purpose and have limited the ability to people to successfully plead.
  • A big percentage of the people who successfully plead substantial impairment are those with serious disorders (schizophrenia or psychosis issues), so it's like it is being abused.
  • Involving the community (by using the jury as the ultimate decider of responsibility) is extremely important. Leaving it to the judge alone would leave the community less able to accept results etc.
  • The distinction between murder and manslaughter is very important in the way that it is viewed. It should be maintained.
    • In addition, low sentences for murder would not be readily accepted by the community, ie, the community would be more able to accept a lesser charge of manslaughter than a reduced murder charge.

Sentencing Issues

[8] When determining a sentence for a person who has successfully pleaded substantial impairment, the court has to strike a balance between setting the appropriate punishment (based on the offence and the offender) as well as the protection of the community.

This was explored in Veen:[9]

  • Facts:the accused stabbed someone to death, convicted of manslaughter because of diminished responsibility and was sentenced to life.
  • Held: on appeal, the court shortened the sentence to 12 years because the trial judge had put too much emphasis on the protection of society as opposed to the appropriate punishment according to the crime and the circumstances.

And then again in Veen (No 2):[10]

  • Facts: after being released, Veen killed again. He was once again convicted of manslaughter because of diminished responsibility and was sentenced to life. Veen appealed the sentence.
  • Held: this time the life imprisonment was upheld. Whilst strictly preventive detention was impermissible (an excessive, disproportionate sentence to prevent future harm), it was nevertheless proper to consider the protection of society as a factor in exercising sentencing discretion. In this case, the sentence imposed was not deemed excessive (taking everything into account).

Deane J dissented to the decision in Veen (No 2), holding that again too much emphasis was placed on the safety of the community and that the sentence was disproportionate to the offence. Deane J commented:

  • A statutory system of preventative restraint (dealing with those who are not legally insane but represent a grave threat to society by reason of a mental abnormality) should be introduced to help with the balancing process.
  • This would allow the court to avoid the disadvantages of indeterminate prison sentences, by being based on periodic orders for continuing detention in an institution (as opposed to jail), and ensure regular and thorough review by experts.
  • To increase a sentence because of the fear that further crimes would be committed (due to an abnormality of the mind) is to punish a person for that abnormality of mind and not for his actual actions.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1979) 53 ALJR 305.
  2. Textbook, pp. 546-8.
  3. Textbook, p. 548.
  4. Textbook, p. 552.
  5. Textbook, pp. 550-1.
  6. Textbook, pp. 54950.
  7. Textbook, pp. 552-4.
  8. Textbook, pp. 554-5.
  9. (1979) 53 ALJR 305.
  10. (1988) 77 ALR 385.
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