Revisiting the Defence of Diminished Responsibility

Authors

Andrew Botterell, Faculty of Law, Western University

Document Type

Article

Abstract

My goal in this article is to revisit the defence of diminished responsibility. There are three things that, taken together, suggest to me that a defence of diminished responsibility ought to be made available to certain individuals accused of certain criminal offences. The first is that Canadian criminal law already recognizes a number of defences that reflect ideas about diminished responsibility. The second is that despite the availability of these specific defences to criminal liability, no general defence of diminished responsibility is formally recognized in Canadian criminal law. And the third is that given the Supreme Court of Canada’s ongoing interest in the connection between criminal liability, fundamental justice, and the principle of normative involuntariness, we should take seriously the idea that a defence of diminished responsibility ought to be recognized and made available to certain offenders who suffer from substantial volitional impairments. My paradigmatic example of a volitional impairment is Fetal Alcohol Spectrum Disorder (FASD).

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Botterell, Andrew. "Revisiting the Defence of Diminished Responsibility." Osgoode Hall Law Journal 60.2 (2023) : 337-372.
DOI: https://doi.org/10.60082/2817-5069.3893
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss2/3

References

1. In thinking about this topic, I have benefitted, in particular, from the following discussions. See generally Robert C Topp, "A Concept of Diminished Responsibility for Canadian Criminal Law" (1975) 33 UT Fac L Rev 205; Peter Aranella, "The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage" (1977) 77 Columbia L Rev 827; KJM Smith & William Wilson, "Impaired Voluntariness and Criminal Responsibility: Reworking Hart's Theory of Excuses-the English Judicial Response" (1993) 13 Oxford J Leg Stud 69; Douglas Husak, "Partial Defenses" (1998) 11 Can J Law & Juris 167, reprinted in D Husak, The Philosophy of Criminal Law: Selected Essays (Oxford University Press, 2010) 311; Stephen J Morse, "Diminished Rationality, Diminished Responsibility" (2003) 1 Ohio St J Crim L 289; Jeremy Horder, Excusing Crime (Oxford University Press, 2004) [Horder, Excusing Crime]; Alan Brudner, Punishment and Freedom (Oxford University Press, 2009) [Brudner, Punishment and Freedom].

2. See "The Defence of Diminished Responsibility in Canadian Criminal Law" (1981) 19 Osgoode Hall LJ 301. https://doi.org/10.60082/2817-5069.2020

3. Ibid at 320.

4. In some suitably broad sense, of course, all excuses trade on the idea of diminished responsibility. This is because somebody claiming an excuse is arguing that in some sense or another-due either to conditions affecting their capacity or ability to act, or to conditions affecting the circumstances in which they acted-they are not (fully) responsible for what they have done. More on this below.

5. For substantially the same point, see Gannage, supra note 3.

6. See e.g. Diane K Fast & Julianne Conry, "Fetal Alcohol Spectrum Disorders and the Criminal Justice System" (2009) 15 Developmental Disabilities Research Rev 250 https://doi.org/10.1002/ddrr.66; Ann Streissguth et al, "Risk Factors for Adverse Life Outcomes in Fetal Alcohol Syndrome and Fetal Alcohol Effects" (2004) 25 J Developmental & Behavioral Pediatrics 228. See also Larry N Chartrand & Ella M Forbes-Chilibeck, "The Sentencing of Offenders with Fetal Alcohol Syndrome" (2003) 11 Health LJ 35 https://doi.org/10.1097/00004703-200408000-00002; Jerrod Brown et al, "Fetal Alcohol Spectrum Disorders and the Criminal Justice System: A Systematic Literature Review" (2014) 3 JL Enforcement 1; Katherine Flannigan et al, "Fetal Alcohol Spectrum Disorders in the Criminal Justice System: A Review" (2018) 57 Intl JL & Psychiatry 42 https://doi.org/10.1016/j.ijlp.2017.12.008; Kaitlyn McLachlan et al, "Prevalence and Characteristics of Adults With Fetal Alcohol Spectrum Disorder in Corrections: A Canadian Case Ascertainment Study" (2019) 19 BMC Public Health 1. https://doi.org/10.1186/s12889-018-6292-x

7. For some very helpful discussions of FASD and its implications for criminal law, see Kent Roach & Andrea Bailey, "The Relevance of Fetal Alcohol Spectrum Disorder and the Criminal Law from Investigation to Sentencing" (2009) 42 UBC L Rev 1; Benjamin Berger, "Mental Disorder and the Instability of Blame in Criminal Law" in François Tanguay-Renaud & James Stribopoulos, Rethinking Criminal Law Theory (Hart, 2012) 117 https://doi.org/10.5040/9781472561091.ch-006; Mela Mansfield & Luther Glen, "Fetal Alcohol Spectrum Disorder: Can Diminished Responsibility Diminish Criminal Behaviour?" (2013) 36 Int JL & Psychiatry 46 https://doi.org/10.1016/j.ijlp.2012.11.007; Natalie N Brown & Stephen Greenspan, "Diminished Culpability in Fetal Alcohol Spectrum Disorders (FASD)" (2021) 40 Behav Sci & L 1. https://doi.org/10.1002/bsl.2535

8. (UK), 5 & 6 Eliz II, c 11, as re-enacted by Coroners and Justice Act 2009 (UK), s 52 [Homicide Act 1957].

9. Ibid, s 2 (as originally enacted). For some discussion of the UK approach to diminished responsibility, see Ronnie D Mackay, "The Abnormality of Mind Factor in Diminished Responsibility" (1999) Crim L Rev 117; Ronnie D Mackay, "Diminished Responsibility and Mentally Disordered Killers" in Andrew Ashworth & Barry Mitchell, eds, Rethinking English Homicide Law (Oxford University Press, 2000) 55.

https://doi.org/10.1093/acprof:oso/9780198299158.003.0003

10. (UK), s 52, amending Homicide Act 1957, supra note 9. For helpful discussion of the nature and effect of these changes, see Ronnie D Mackay, "The Coroners and Justice Act 2009 - Partial Defences to Murder (2) The New Diminished Responsibility Plea" (2010) Crim L Rev 290; Louise Kennefick, "Introducing a New Diminished Responsibility Defence for England and Wales" (2011) 74 Mod L Rev 750. https://doi.org/10.1111/j.1468-2230.2011.00869.x

11. American Law Institute, Model Penal Code: Official Draft and Explanatory Notes (Complete Text of Model Penal Code as Adopted at the 1962 Annual Meeting of the American Law Institute at Washington, D.C.), (American Law Institute, 1985).

12. Ibid, § 210.3(1).

13. It is also worth noting that the sentencing principles embodied in the Criminal Code seem to reflect underlying principles having to do with diminished responsibility and desert. See RSC 1985, c C-46, s 718.2(e) [Criminal Code]. For discussion of these principles, see e.g. R v Gladue, [1999] 1 SCR 688 [Gladue]; R v Ipeelee, 2012 SCC 13 [Ipeelee]. As Justice LeBel put it in Ipeelee: "Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely-if ever-attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability" (ibid at para 73 [emphasis in original]).

14. [1992] 2 SCR 871. See also R v Stone, [1999] 2 SCR 290 [Stone].

15. The defence of intoxication, in both its advanced and extreme forms, is complex. For some relevant cases, see R v Daviault, [1994] 3 SCR 63 [Daviault]; R v Daley, 2007 SCC 53; R v Tatton, 2015 SCC 33; R v Brown, 2022 SCC 18.

16. Husak, supra note 2 at 312. See also Horder, Excusing Crime, supra note 2, ch 4.

17. See "Criminal Law Defenses: A Systematic Analysis" (1982) 82 Colum L Rev 199 at 203.

https://doi.org/10.2307/1122275

18. (Presidential Address delivered at the Meeting of the Aristotelian Society, Bedford Square, 29 October 1956), (Blackwell, 1957) 1 at 2.

19. Ibid at 3 [emphasis omitted].

20. The literature on justifications and excuses is extensive. For a very incomplete list, see generally ibid; Kent Greenawalt, "The Perplexing Borders of Justification and Excuse" (1984) 84 Colum L Rev 1897; Sanford Kadish, "Excusing Crime" (1987) 75 Cal L Rev 257; Bruce Chapman, "A Theory of Criminal Law Excuses" (1998) 1 Can JL & Jur 75; George Fletcher, Rethinking Criminal Law, 3rd ed (Oxford University Press, 2000); Peter Westen, "An Attitudinal Theory of Excuse" (2006) 25 L & Phil 289; John Gardner, "Justifications and Reasons" in Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford University Press, 2007) 91 [Gardner, Offences and Defences]; John Gardner, "The Gist of Excuses" in ibid, 121.

21. Husak, supra note 2 at 312.

22. For discussion, see Husak, supra note 2 at 313.

23. See e.g. R v Mack, [1988] 2 SCR 903. For helpful discussion, see Gerald Dworkin, "The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime" (1985) 4 L & Phil 17 https://doi.org/10.1007/BF00208259; Dennis Klimchuk, "State Estoppel" (2020) 39 L & Phil 297. https://doi.org/10.1007/s10982-019-09372-4

24. So too with extreme youthfulness, for example. That an accused is very young-that is, under the age of twelve-certainly does not justify the accused's conduct, nor is it obviously an excuse. See Criminal Code, supra note 14, s 13. Rather, extreme youth exempts such individuals from the reach of the state's authority to bring criminal charges at all. For an argument about why that might be, see Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility (Oxford University Press, 2018). In a very interesting paper, Victor Tadros has suggested that similar considerations might also apply to the state's authority or entitlement to punish certain impoverished offenders. See "Poverty and Criminal Responsibility" (2009) 43 J Value Inquiry 391. Finally, for a discussion about the relationship between punishment, moral blameworthiness, and "constrained circumstances," see also Gladue, supra note 14; Ipeelee, supra note 14.

25. See "Legal Responsibility and Excuses" in Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed (Oxford University Press, 2008) 28 at 29. https://doi.org/10.1093/acprof:oso/9780199534777.003.0002

26. Austin, supra note 19.

27. Husak, supra note 2 at 316. https://doi.org/10.1126/science.os-2.54.316-c

28. A distinction is sometimes drawn between exculpatory conditions and exonerating excuses (in Alan Brudner's terminology), or between negative and affirmative defences. See Brudner, Punishment and Freedom, supra note 2 at 81-82. An exculpatory condition amounts to a denial of some elements of the offence. Thus, the defence of mistake of fact operates to deny an essential mens rea element (knowledge or intention) required for an offence. See Beaver v The Queen, [1957] SCR 531; Pappajohn v The Queen, [1980] 2 SCR 120. A genuinely exonerating excuse, on the other hand, while acknowledging that the accused committed the essential elements of the offence, nonetheless insists that it would be unjust to punish the accused fully, or at all. In what follows, I take it as given that the defences of necessity and duress operate as exonerating excuses rather than as exculpatory conditions, notwithstanding the fact that the gist of those two defences is that the accused behaved in morally involuntary manner. While this might be taken to imply that some essential element-voluntariness or the capacity to make a genuine choice-of criminal liability was absent, this is not the way in which these defences are typically understood.

29. See generally Husak, supra note 2 at 319-21; Horder, Excusing Crime, supra note 2.

30. Husak, supra note 2 at 320.

31. This is also true of some complete defences. Duress is a good example. See Criminal Code, supra note 14, s 17. While the statutory defence of duress operates as an excuse, it is not available where the accused is charged as a principal offender with high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson, or the abduction and detention of young persons. So again, whether the defence of duress is available to an accused charged as a principal offender depends on the offence with which that accused is charged. Alternatively, whether an accused is entitled to the defence of duress depends on whether the accused is charged as a principal or as a party. The Supreme Court of Canada has noted that, "this is an unsatisfactory state of the law." R v Ryan, 2013 SCC 3 at para 84 [Ryan].

32. Criminal Code, supra note 14, s 232(1).

33. The most sophisticated and comprehensive treatment of provocation that I am aware of remains Jeremy Horder's Provocation and Responsibility. (Oxford University Press, 1992) [Horder, Provocation]. This work is helpfully discussed by Dennis Klimchuk. See "Outrage, Self-Control, and Culpability" (1994) 44 UTLJ 441. For further discussion of the defence of provocation, see John Gardner, "Provocation and Pluralism" in Gardner, Offences and Defences, supra note 21, 155.

34. See Horder, Provocation, supra note 34.

35. Another familiar way of understanding varieties of diminished responsibility, often found in American discussions of the defence, is to introduce a distinction between a mens rea paradigm and a partial-responsibility or formal mitigation paradigm. By way of explanation, an accused raising the defence of diminished responsibility (or capacity) within the mens rea paradigm claims that their alleged mental abnormality interfered with or precluded the formation of the mens rea element required by the crime with which they are charged. Advanced intoxication is a good example of the mens rea paradigm in action: An accused charged with murder who raises the defence of advanced intoxication claims that due to their advanced degree of intoxication they did not, or could not, form the intent to kill. On the other hand, the partial-responsibility or formal mitigating paradigm "is a genuine excuse. The defendant is claiming that, whatever may be the case about the other elements of criminal liability, including mens rea, mental abnormality diminishes his or her responsibility for criminal conduct." Stephen Morse, "Diminished Capacity" in Stephen Shute, John Gardner & Jeremy Horder, eds, Action and Value in Criminal Law (Clarendon Press, 1993) 239 at 247. Liability-mitigating circumstances, at least as I am understanding them, should therefore be understood as falling under the partial-responsibility paradigm.

36. I say "very roughly" because murder can also be committed in the absence of an intent to kill. See so-called unlawful object murder, which requires only subjective foresight of the likelihood of death. See Criminal Code, supra note 14, s 229(c). For discussion, see Kent Roach, "The Problematic Revival of Section 229(c) of the Criminal Code" (2010) 47 Alta L Rev 675. https://doi.org/10.29173/alr183

37. See R v Borowiec, 2016 SCC 11 at para 15. See also R v LB, 2011 ONCA 153.

38. Criminal Code, supra note 14, s 233. For some discussion of the history of and rationale for the offence of infanticide, see Constance Backhouse, "Desperate Women and Compassionate Courts: Infanticide in Nineteenth Century Canada" (1984) UTLJ 447 https://doi.org/10.2307/825592; Michele Oberman, "Mothers Who Kill: Coming to Terms With Modern American Infanticide" (1996) 3 Am Crim L Rev 1, reprinted in (2004) 8 DePaul J Health Care L 3; Emma Cunliffe, "Infanticide: Legislative History and Current Challenges" (2009) 55 Crim LQ 94; Sanjeev Anand, "Rationalizing Infanticide: A Medico-Legal Assessment of the Criminal Code's Child Homicide Offence" (2010) 47 Alta L Rev 705 https://doi.org/10.29173/alr184; Isabel Grant, "Desperate Measures: Rationalizing the Crime of Infanticide" (2010) 14 Can Crim L Rev 253.

39. Murder carries with it a mandatory sentence of life in prison, with differing restrictions on parole eligibility depending on whether the murder is classified as first- or second-degree. Manslaughter carries with it a maximum sentence of life in prison and a minimum sentence of four years in prison if a firearm is used in the commission of the offence. And infanticide is a hybrid offence, carrying with it a maximum penalty of five years in prison if prosecuted by way of indictment. See Criminal Code, supra note 14, ss 235-37, 745.

40. Ibid, ss 232, 233.

41. Ibid, ss 265-66.

42. For some discussion, see Horder, Excusing Crime, supra note 2 at 143-46.

43. Criminal Code, supra note 14, s 235.

44. For further discussion, see Horder, Excusing Crime, supra note 2 at 143-46. For a contrary view, see R v Vaillancourt, [1987] 2 SCR 636 at 663. As Justice McIntyre states, "no principle of fundamental justice is offended only because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner" (ibid).

45. "Criminalization and the Role of Theory" in AP Simester & ATH Smith, eds, Harm and Culpability (Oxford University Press, 1996) 1 at 6 [emphasis omitted]. https://doi.org/10.1093/acprof:oso/9780198260578.003.0009

46. (1996) 38 Crim LQ 302 at 304 [Brudner, "Proportionality"]. https://doi.org/10.1136/gut.38.2.302-d

47. [1993] 3 SCR 3.

48. Supra note 16.

49. Brudner, "Proportionality," supra note 47 at 316 [emphasis in original].

50. See David O Brink, "Partial Responsibility and Excuse" in Heidi M Hurd, ed, Moral Puzzles and Legal Perplexities (Cambridge University Press, 2018) 39; Adam Kolber, "Smooth and Bumpy Laws" (2014) 102 Cal L Rev 655. For a similar argument in the moral realm, see Larry Alexander, "Scalar Properties, Binary Judgments" (2008) 25 J Applied Phil 85. https://doi.org/10.1111/j.1468-5930.2008.00401.x

51. R v Ruzic, 2001 SCC 24 at para 47 [Ruzic]. See also R v Perka, [1984] 2 SCR 232; Daviault, supra note 14; Ryan, supra note 32.

52. See Husak, supra note 2 at 321.

53. Ibid at 323.

54. SC 2002, c 1.

55. Criminal Code, supra note 14, s 13.

56. [1993] 2 SCR 5 at 17.

57. Supra note 52 at para 47.

58. The Common Law, revised ed (Dover Publications, 1991) at 54.

59. "Is there an Act Requirement in the Criminal Law?" (1994) 142 U Pa L Rev 1529 at 1557. https://doi.org/10.2307/3312462

60. Douglas Husak, "Rethinking the Act Requirement" (2007) 28 Cardozo L Rev 2437 at 2454 [citations omitted]. See generally Douglas Husak, "Does Criminal Liability Require an Act?" in Husak, supra note 2, 17. As this quote suggests, however, Husak does not believe that the actus reus doctrine of criminal law does in fact require an act. What it requires instead is control.

61. Ruzic, supra note 52 at para 45.

62. "Action and Agency in the Criminal Law" (2009) 15 Leg Theory 1 at 2. For a different attempt to develop and defend a version of the agency view, see Andrew Botterell, "Understanding the Voluntary Act Principle" in Tanguay-Renaud & Stribopoulos, eds, supra note 8, 97.

63. Chiao, supra note 63 at 16.

64. For an influential proposal that links responsibility with the ability to respond appropriately to reasons, see John Martin Fischer & Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (Cambridge University Press, 1998). For discussion on this, see Walter Glannon, "Responsibility and Control: Fischer's and Ravizza's Theory of Moral Responsibility" (1999) 18 L & Phil 187. More recently, see Carolina Sartorio, Causation and Free Will (Oxford University Press, 2016); Carolina Sartorio, "More of a Cause?" (2020) 37 J Applied Philosophy 346 https://doi.org/10.1111/japp.12370; Alex Kaiserman, "Partial Liability" (2017) 23 Leg Theory 1 [Kaiserman, "Partial Liability"] https://doi.org/10.1017/S1352325217000040; Alex Kaiserman, "Reasons-Sensitivity and Degrees of Free Will" (2021) 103 Philosophical & Phenomenological Research 687 [Kaiserman, "Reasons-Sensitivity"]. https://doi.org/10.1111/phpr.12738

65. Homicide Act 1957, supra note 9, s 2(1).

66. See Kaiserman, "Partial Liability," supra note 65; Kaiserman, "Reasons-Sensitivity," supra note 65.

67. The structure of these cases is taken from Kaiserman. See "Reasons-Sensitivity," supra note 65 at 695.

68. Admittedly, questions about the appropriate standard of proof for claims involving assertions of involuntariness are complicated. See Stone, supra note 15 at para 219. In Stone, Justice Bastarache suggested, somewhat controversially, that in the context of claims of automatism an accused must establish involuntariness on a balance of probabilities. Justice Bastarache based his reasoning on the evidential burden appropriate to cases involving extreme intoxication or mental disorder. Consequently, it seems reasonable to adopt a similar burden and standard of proof in cases involving impaired voluntariness. Thus, an accused seeking to raise a defence of diminished responsibility based on impaired voluntariness would be required to establish, on a balance of probabilities, that their voluntariness was substantially compromised or impaired.

69. Supra note 14.

70. Supra note 16

71. Supra note 52.

72. Dennis Klimchuk, "Moral Innocence, Normative Involuntariness, and Fundamental Justice" (1998) 18 CR (5th) 96 at 102. For criticism of the principle of moral involuntariness, see Brudner, Punishment and Freedom, supra note 2 at 241-45.

73. Of course, it might be objected that it is just as problematic to try to subsume different defences under the conceptual umbrella of normative involuntariness. For discussion, see Brudner, Punishment and Freedom, supra note 2 at 241ff. For example, if necessity, duress, self-defence, and NCRMD all reflect the principle of normative involuntariness, then how is it that necessity and duress operate as excuses, that self-defence is understood as a justification, and that NCRMD exempts an accused from criminal liability altogether? Although these issues are very complicated, I think part of the answer is that it is not only the principle of normative involuntariness that is doing the exculpatory work in self-defence and NCRMD. An accused is justified in acting in self-defence in part because the state is not in a position to intervene on their behalf, and so a right to self-defence devolves to the accused. And it is because an accused pleading NCRMD is suffering from a mental disorder that interferes with their capacity to understand what they are doing or to know that what they are doing is wrong, the exemption is appropriate in this case.

74. See e.g. DPP v Camplin, [1978] AC 705 (HL (Eng)); R v Hill, [1986] 1 SCR 313.

75. Similar observations could also be made about infanticide, which has its own fascinating and complicated history. For some discussion of that history, see Backhouse, supra note 39; Oberman, supra note 39; Cunliffe, supra note 35; Anand, supra note 39; Grant, supra note 39.

76. For a helpful overview of the many issues that arise when criminal law and mental disorder come into conflict, see KWM Fulford, "Value, Action, Mental Illness, and the Law" in Shute, Gardner & Horder, eds, supra note 36, 279.

77. Although it is certainly true that FASD bears on many other aspects of the criminal process including fitness to stand trial. For some discussion, see Warren Brookbanks, Valerie McGinn & Joanna Ting Wai Chu, "Unfitness to Stand Trial and Fetal Alcohol Spectrum Disorder: Understanding and Responding to FASD Within the Criminal Justice System in New Zealand" (2022) 40 Behav Sci & L 159. https://doi.org/10.1002/bsl.2555

78. Supra note 8.

79. Ibid at 44, 66.

80. Ibid at 1.

81. Supra note 8 at 127.

82. Ibid at 127.

83. Roach & Bailey, supra note 8 at 27.

84. Paul Pallan, Fetal Alcohol Syndrome: A Call for Action in B.C. (Children's Commission, 2001) at 9.

85. Chartrand & Forbes-Chilibeck, supra note 7 at 39.

86. This suggests the possibility of yet another route from FASD to diminished responsibility. To the extent that FASD is due in part to social and economic circumstances that the state is in a particularly good position to ameliorate (or that the state played a role in creating and maintaining), it might be possible to argue that the state's authority or entitlement to punish an accused suffering from FASD-and especially Indigenous accused suffering from FASD-is significantly compromised. In other words, perhaps one could argue that some accused who suffer from FASD should be entitled to a defence of diminished responsibility on the grounds that the state lacks standing to punish them. For discussion, see Tadros, supra note 25. See also Berger, supra note 8 at 134 [citations omitted]. Berger makes a similar point that "[i]f one understands blame as relational or reciprocal in nature, society's authority to call an accused to answer for a wrong committed might well be eroded when it becomes clear that, through systemic injustice, society has visited serious disadvantage and social wrongs on this person. By creating or sustaining unjust conditions that lead to crime, the state is complicit in and shares responsibility for the crime, make it unjust to blame the accused without also acknowledging and taking steps to remedy its own blameworthiness" (ibid).

87. Supra note 8 at 128.

88. Ibid.

89. See e.g. Brudner, Punishment and Freedom, supra note 2 at 81-85.

90. See Homicide Act 1957, supra note 9.

91. See Horder, Excusing Crime, supra note 2 at 152. See also Ian Freckelton, "Sentencing Offenders with Foetal Alcohol Spectrum Disorder (FASD): The Challenge of Effective Management," Case Comment on Churnside v The State of Western Australia [2016] WASCA 146, (2016) 23 Psychiatry Psychology & L 815. https://doi.org/10.1080/13218719.2016.1258752

92. Horder, Excusing Crime, supra note 2 at 143 [emphasis in original].