In sentencing for murder where there is a history of uncharged abuse, the uncharged acts may be used to establish the offender's state of mind, the victim's vulnerability and the offender's knowledge of that vulnerability, and to deny leniency — but may not be used to assess the objective gravity of the murder by reference to the overall course of conduct or pattern of abuse. Evidence of mental illness, including depression and psychotic symptoms, is apt to mitigate moral culpability and to render the case an inappropriate vehicle for general deterrence, even where no treating psychiatrist's report is tendered. The three permissible uses of victim vulnerability are: (1) the objective fact of vulnerability; (2) the offender's knowledge of that vulnerability; but NOT (3) the fact that the offender caused the vulnerability through uncharged offences.
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