Mandated treatment as punishment: exploring the second Verdins principle

Jamie Walvisch

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Abstract

In the leading Australian case of R v Verdins (2007) 16 VR 269, the Victorian Court of Appeal held that an offender’s mental health condition may affect a sentencing judge’s assessment of (i) culpability; (ii) the kind of sentence to be imposed; (iii) general deterrence; (iv) specific deterrence; (v) the burden of the sentence; and (vi) the effect of imprisonment. While these principles have been addressed in over 500 sentencing decisions in Australia and New Zealand, there has been very little discussion of the second principle. This chapter addresses that gap. It starts by outlining the circumstances in which courts have held that an offender’s mental illness or mental disorder should affect the kind of sentence to be imposed, and the conditions in which it should be served. It then examines two different notions of capacity that are implicit in the courts’ approach to this issue, and the courts’ justification for mandating mental health treatment. It concludes by critiquing the current framework, and suggesting a revised approach to the second Verdins principle.
Original languageEnglish
Title of host publicationCritical Perspectives on Coercive Interventions
Subtitle of host publicationLaw, Medicine and Society
EditorsClaire Spivakovsky, Kate Seear, Adrian Carter
Place of PublicationAbingdon UK
PublisherRoutledge
Chapter11
Pages185-198
Number of pages14
Edition1st
ISBN (Electronic)9781315158693
ISBN (Print)9781138067370
DOIs
Publication statusPublished - 1 May 2018

Cite this

Walvisch, J. (2018). Mandated treatment as punishment: exploring the second Verdins principle. In C. Spivakovsky, K. Seear, & A. Carter (Eds.), Critical Perspectives on Coercive Interventions: Law, Medicine and Society (1st ed., pp. 185-198). Routledge. https://doi.org/10.4324/9781315158693-16