A sentencing judge may not increase an otherwise appropriate sentence for manslaughter by reason of diminished responsibility on the basis of the offender's future dangerousness to the community where the psychiatric evidence does not support a conclusion that the offender poses a particular future threat beyond that posed by other long-term prisoners with similar histories. The existence of the mental health legislative framework provides some protection for the community and the risk must be shown to be significant enough to warrant what is essentially preventative detention. The distinction between impermissible preventative detention and permissible regard to community protection in fixing sentence (per Veen (No 2)) requires a foundation of substance in the evidence.
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