Growing Enlightenment: Sentencing Offenders with Autism Spectrum Disorder in Australia

Abstract

The number of defendants raising an Autism Spectrum Disorder (‘ASD’) diagnosis in criminal proceedings is increasing. Australian courts treat this neurodevelopmental disorder as a mental impairment that they may take into account in sentencing. A few studies nonetheless exposed deficiencies in judicial officers’ understanding of ASD symptoms and their potential forensic relevance. Courts’ willingness to rely on expert evidence did not always lead to them sentencing offenders with ASD in a consistent or enlightened manner. Building on those investigations and drawing on research into ASD, this article examines sentencing decisions involving eight offenders with ASD in various Australian jurisdictions between 2014 and 2020. This analysis demonstrates that judicial officers’ knowledge about ASD and appreciation of its possible relevance to sentencing considerations are growing, but there remain gaps in both respects. The article speculates on possible reasons for this and proposes reforms to improve courts’ approaches to sentencing offenders with ASD.