The Emergence of Personality Disorder in Sentencing Law

THE EMERGENCE OF PERSONALITY DISORDER IN SENTENCING LAW: IMPLICATIONS FOR LAW AND CLINICAL SERVICES

Across jurisdictions laws, criminal justice systems, mental health services and clinicians have struggled for over a century to find ways of addressing the vexing issue of the offender with personality disorder. A central issue is if and how personality disorder should be taken into account in sentencing.

The role of forensic mental health evidence in assisting Courts with sentencing in the context of impaired mental functioning is well established. The Tsiaras and Verdins rulings in Victoria outlined sophisticated and flexible frameworks for such evidence. In 2015 however, the Appeal Court in O’Neill ruled that personality disorders did not constitute an ‘impairment of mental functioning’. This ruling was overturned in 2020 by the Appeal Court in Brown v The Queen. Our three speakers played key roles in this case and are authorities in their respective disciplines.

Case details: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2020/196.html

Tim Marsh

'Personality disorder, evidence based sentencing and individualised justice'

Tim Marsh is a barrister who has practiced exclusively in crime for 20 years, and has appeared in hundreds of cases at first instance and on appeal representing clients with serious mental illnesses, cognitive impairments and personality disorders. For nine years he held the position of Chief Counsel at Victoria Legal Aid and worked as a sessional member of the Mental Health Tribunal for five years.

He was lead counsel in the landmark case of Brown v The Queen, which radically reshaped how the law deals with personality disordered offenders.

Andrew Carroll

‘Personalising the offender: Implications of Brown v The Queen’

Andrew Carroll is a forensic psychiatrist who has worked in public mental health for over 25 years in both Australia and the UK. He is now Co-Director of the mental health training and consultancy company, Our Curious Minds Pty Ltd. He is also the visiting psychiatrist to Hopkins Correctional Centre, a large men’s prison in Victoria. He has a busy private medicolegal practice. He has published extensively in the field of risk assessment, forensic mental health service provision, clinical decision-making and violence. He is an Associate Professor (Adjunct) at the Centre for Forensic Behavioural Science at Swinburne University of Technology.

In this presentation, he will argue that Brown encourages the Courts (and hence experts) to grapple with varying severities of personality dysfunction and the myriad possible factors underlying such dysfunction. He will outline a pragmatic approach to the forensic task of providing expert evidence regarding personality disorder to assist the Courts with sentencing.

James Ogloff

‘The relationship between personality disorder and offending: Implications for interventions’

Trained as a lawyer and psychologist, James Ogloff AM is the University Distinguished Professor and Director of the Centre for Forensic Behavioural Science at Swinburne University and Executive Director of Psychological Services and Research at Forensicare. He has published 18 books and more than 300 articles and chapters in forensic psychology and forensic mental health. He has held many editorial and professional leadership roles and has received numerous awards for his work. He has thought about people with dysfunctional personalities in the criminal justice system for 37 years!

A brief overview of the relationship between personality disorder and offending will be provided. Attention will be paid to the ways in which personality characteristics contribute to offending. Finally, the implications of Brown for appropriate interventions will be highlighted.

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