Can Mental Illness Reduce My Sentence in NSW? Here’s What Courts Consider at Sentencing

You’ve been found guilty or have pleaded guilty to a criminal offence. But your mental health condition, whether it’s schizophrenia, PTSD, depression, or bipolar disorder, played a major role in what happened.

You may be wondering:

Will the court take my mental illness into
account when deciding my sentence?

The short answer? Yes, even if your condition didn’t meet the threshold for a full legal defence (like being found “not guilty by reason of mental illness”), it can still be a powerful mitigating factor at sentencing.

At National Criminal Lawyers®, we represent hundreds of clients every year whose psychiatric conditions significantly influence the outcome of their sentencing.

Here’s how mental illness is considered in sentencing law in NSW — and what you can do to maximise your chance of a lenient outcome.

What Law Applies to Sentencing in NSW?

Sentencing is governed by the Crimes (Sentencing Procedure) Act 1999 (NSW). Under section 21A, the court must weigh up both aggravating and mitigating factors.

When it comes to mental health, the relevant provision is:

s 21A(3)(j): “the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability”

This allows the court to reduce the severity of a sentence if the offender’s mental health:

• Diminished their decision-making ability;
  
  
• Reduced their moral culpability;
  
  
• Contributed to the offending behaviour.
  
  

When Does Mental Illness Reduce Culpability?

Courts typically look at whether:

• You had a clinically diagnosed mental illness or cognitive impairment;
  
  
• It caused or significantly contributed to the offending; and
  
  
• It reduced your understanding, control, or judgment at the time.
  
  

The court will also consider whether the condition:

• Was being treated or untreated at the time;
  
  
• Is now being managed;
  
  
• Poses a future risk of reoffending.
  
  

Key Case: R v Verdins [2007] VSCA 102

The Verdins case established five principles that apply nationally, including NSW, about how mental illness affects sentencing. It’s often cited by NSW courts alongside cases like R v Israil and R v Engert.

Mental illness can:

1. Reduce moral culpability;
   
   
2. Affect general and specific deterrence;
   
   
3. Make prison more burdensome;
   
   
4. Justify a different sentencing outcome;
   
   
5. Explain lack of cooperation or delay in proceedings.
   
   

Realistic Examples

• A person with bipolar disorder commits assault during a manic episode.
  
  
• A DV offender with complex PTSD lashes out under extreme emotional pressure.
  
  
• A young adult with autism faces charges of stalking after misinterpreting social signals.
  
  

In each scenario, the court may view the behaviour as less blameworthy and consider non-custodial alternatives.

Will Mental Illness Keep Me Out of Jail?

It can… depending on the case.

Mental illness might result in:

• A Community Correction Order (CCO);
  
  
• A Conditional Release Order (CRO);
  
  
• An Intensive Correction Order (ICO) served outside custody;
  
  
• A reduced custodial sentence;
  
  
• Or even as 14 mental health diversion, in Local Court matters.
  
  

What Evidence Is Required?

You will usually need:

• A comprehensive psychiatric or psychological report;
  
  
• Medical history (hospitalisation, medication, therapy);
  
  
• Evidence of engagement with treatment, rehab, or NDIS;
  
  
• Statements from treating practitioners, family, or support workers.
  
  

We work closely with trusted forensic psychiatrists to ensure your reports are persuasive and admissible.

FAQs

Does anxiety or depression count?

Yes — if diagnosed and linked to your offending or rehabilitation.

Do I have to plead guilty to raise mental health in sentencing?

No, but it’s more commonly accepted as mitigation after a guilty plea.

What if I only became mentally ill after the offence?

That may still reduce the hardship of prison or change your sentencing outcome.

Will the court take untreated illness seriously?

Yes, but courts are more sympathetic when you’re now actively engaged in recovery.

Final Thoughts

You don’t need to meet the threshold for a mental illness defence to have your condition recognised in court. Mental illness — when properly supported by expert evidence — can make a major difference at sentencing.

Whether you’re dealing with addiction, psychosis, trauma or lifelong impairment, we ensure your condition is not ignored or misunderstood in court.

Contact National Criminal Lawyers® Today

If your mental health played a role in your charges or affects your rehabilitation, get the right team behind you, the best criminal defence lawyers Sydney.

📞 Call 1800 CRIM LAW now for a free first consultation.

We offer:

• Fixed fees
  
  
• Access to trusted forensic psychiatrists
  
  
• Tailored sentencing submissions
  
  
• Representation across Sydney, Parramatta and Greater NSW
  
  

Your mental health matters. We’ll make sure the court sees it that way.