The Criminal Mind: Neuroscientific Evidence as a Mitigating Factor in Sentencing in New South Wales, Australia
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Compilation 0 2017 Washington International Law Journal Association
THE CRIMINAL MIND: NEUROSCIENTIFIC EVIDENCE
AS A MITIGATING FACTOR IN SENTENCING IN NEW
SOUTH WALES, AUSTRALIA
Ellie A. Paget
Abstract: Neurolaw is the emerging field of Law and Neuroscience that has the
potential to lend insight into an offender's mental state and influence criminal
responsibility. In New South Wales, Australia, courts allow neuroscientific evidence of
an offender's cognitive impairment as a consideration in sentencing proceedings. In this
comment, I discuss the discretionary nature of New South Wales' sentencing regime and
the limitations of how neuroscience may be utilized within that regime. Although
neuroscientists can address the association of an offender's cognitive impairment with the
commission of a crime, they cannot identify, with certainty, a causal relationship. I
analyze an original compilation of six case studies from New South Wales to illustrate
that sentencing judges resist mitigating offenders' sentences based on evidence of a
cognitive impairment unless there are other factors favorable to the offender, such as a
guilty plea or a lack of criminal history. Judges' resistance to using evidence of a
cognitive impairment alone to significantly mitigate an offender's sentence indicates that
judges regard evidence of cognitive dysfunction as simply one factor in the holistic
framework at their discretion in sentencing, likely due to the lack of certainty surrounding
the nature of the relationship between an offender's impairment and the commission of
the crime. Judges' reluctance to use neuroscience as a significant mitigating factor also
maintains implications for the sustained retributivist nature of the criminal justice system
in New South Wales and raises the issue of whether the judiciary is the appropriate body
to apply neuroscience to the law.
I. INTRODUCTION
On June 4, 2011 at 1:30 a.m. in New South Wales, Australia, 35-year-
old Taskin Asian approached the complainant as she walked toward a hotel.1
Asian put his arm around her shoulders and forced her toward the entrance
of a nearby church.2 He then sexually assaulted the complainant.3
Aslan's alcoholic father abused him as a child.4 He began using drugs
and alcohol at age twelve, and had a lengthy criminal history by the age of
eighteen.5 In his mid-twenties, Asian was involved in two motor vehicle
accidents, after which neurological assessments revealed brain damage.6
Soon after the accidents, a clinical neuropsychologist reported that Asian's
J.D. candidate at the University of Washington School of Law class of 2017. The author would
like to thank her family for enduring her relentless thoughts about neurolaw.
1 Asian v R [12014] NSWCCA 4, 9 (20 June 2014) (Austl.).
2 Id. at 4.
3 Id.
4 Id. at 10.
5 Id. at 10-11.
6 [d. atl3.](ViewImageLocal?handle=hein.journals/pacrimlp26&div=33&collection=&method=preview&ext=.png&size=3)
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The Criminal Mind: Neuroscientific Evidence as a Mitigating Factor in Sentencing in New South Wales, Australia
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