Edit: This later post on Verdins includes a crude breakdown of the sorts of cases where mitigation has been found and others where it hasn’t.

Perhaps the starkest demonstration of the point the court was trying to make about mental imprairment not being an automatic form of mitigation is Freeman v The Queen [2011] VSCA 214. Whatever you think of the merits of his mental impairment defence at trial, I don’t think anyone could try to argue that Freeman was thinking rationally when he threw his daughter from the Westgate Bridge. Maxwell P refused him leave to appeal his sentence, effectively affirming the 32-year non-parole period.

The Court of Appeal handed down R v White [2009] VSCA 177 last Thursday.

Amongst other things, the judgment emphasises that when an accused is represented by counsel and relies on a diagnosed mental or psychiatric condition as mitigation, specific submissions should be made, either on how the offending was influenced by that state of mind or how it would tend to make a proposed sentence more onerous on the accused. This was a point previously made by the Court of Appeal in R v Zander [2009] VSCA 10.

To simply tender evidence of a diagnosis and rely on that alone as being mitigatory places no obligation on the sentencing court to impose a lenient penalty. Some connection between the diagnosis and mitigation must be established to fall within the considerations in the leading authorities of Tsiaris and Verdins.

R v Tsiaris

In R v Tsiaris [1996] VR 398, the Victorian Court of Appeal identified six ways serious mental illness not amounting to insanity could be relevant to sentence [at 400]:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.

Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time.

Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.

[Fifth], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

[Also] Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

R v Verdins

In R v Verdins [2007] VSCA 102, the Court of Appeal considered that the reference to the serious psychiatric illness in Tsiaris was being misapplied.

Maxwell P, Buchanan and Vincent JJA in their combined decision in Verdins:

[5] The sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of “serious psychiatric illness.” One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.

…

[8] The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.

In Verdins, the Court of Appeal discouraged the categorisation of a case as either invoking the principles in Tsiaris or not invoking them. (Not surprisingly, parallels can be drawn between this approach and the comments of Maxwell P in Wyley about the application of R v Mills to youthful offenders, also discussed here recently). Instead, the Court found the correct approach was to approach each case on its own facts, weighing each of the considerations accordingly.

[13] Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future.

An example of the Court applying this principle is the later decision of R v Grossi. There, an assertion of gambling addiction did not attract mitigation because the causal connection between state of mind and offending wasn’t sufficiently strong.

R v White

In White’s case, the appellant was sentenced in the County Court to a total period of imprisonment of two years and three months (with a minimum of a year to be served) for offences of criminal damage, threat to cause serious injury and serious injury with a knife.

The appellant had pled guilty but contested the account put by the prosecution. After evidence was led of the disputed allegations the sentencing court accepted the Crown’s version of events.

In mitigation, counsel relied on reports from a psychiatrist and a psychologist that diagnosed the appellant with a borderline personality disorder. A Forensicare report was ordered. This concluded an absence of any mental illness. The sentencing judge referred to the three reports in sentencing and concluded that the appellant suffered from no mental illness. The considerations of Tsiaris weren’t raised by counsel, despite the specific comments of Nettle and Dodds-Streeton JJA in R v Zander [2009] VSCA 10.

On the appeal, it was argued that the diagnosis of a borderline personality disorder was worthy of some mitigation of penalty, in the exercise of sentencing discretion.

[16] On behalf of the respondent it was submitted that none of the material which was relevant to the psychological and psychiatric condition of the appellant linked the diagnosed conditions to the commission of the offences, or highlighted difficulties which would arise in the serving of any sentence as a result of those conditions. It was submitted that, where a person in the position of the appellant is represented by counsel, the sentencing judge is not required to consider any effect of the psychological condition of that person where there has been no attempt to link the psychological condition to a relevant sentencing factor. To support this submission, counsel for the respondent relied on the comments of Nettle JA in R v Zander, where his Honour noted:

Contrary to submissions advanced by counsel on behalf of the appellant, where a prisoner is represented by counsel, a sentencing judge is not ordinarily required to consider any possible effects of psychological or psychiatric disability other than those expressly relied on by counsel. Generally speaking, therefore, it is ordinarily not the duty of a sentencing judge to scour evidence and other material in order to identify not so identified psychological or psychiatric disability which may go in mitigation of penalty.

[17] With respect, I agree with the submission on behalf of the respondent. The sentencing judge referred to the report of the treating psychiatrist in his conclusions during the course of the reasons for sentence. No submission was made on behalf of the appellant seeking to specifically link the appellant’s diagnosed condition to the offending, therefore, the evidence regarding his condition is simply part of the background. In addition, the opinion expressed in the Forensicare report, which the sentencing judge quoted, seems to me to be consistent with the treating psychiatrist’s report.

A complementary view comes out of the High Court’s decision in Fardon v The Attorney-General (Qld) (2004) 223 CLR 575, where Gleeson CJ said,

As was pointed out in Engert, people suffering from mental disorders frequently come into collision with the criminal justice system, and discretionary sentencing decisions must take into account a number of sometimes competing considerations, including the protection of society. The law is a normative science, and many of its rules and principles are based upon assumptions about volition that would not necessarily be accepted as accurate by psychiatrists. In United States v Chandler, Chief Judge Haynsworth said:

The criminal law exists for the protection of society. Without undue harm to the interests of the society it protects, it can exclude from its moral judgments those whose powers of intellect or will are so far impaired that they have no substantial control of their conduct. It can afford, too, elimination of the last vestiges of the notion of punishment for punishment’s sake and a further implementation of the principles of rehabilitation, deterrence and, wherever necessary, the ultimate isolation from society of those individuals who have no capacity for the adjustments necessary to conform their conduct as active members of a free society to the requirements of the law. The law may not serve its purpose, however, should it embrace the doctrines of determinism. Should the law extend its rule of immunity from its sanctions to all those persons for whose deviant conduct there may be some psychiatric explanation, the processes of the law would break down and society would be forced to find other substitutes for its protection. The law must proceed upon the assumption that man, generally, has a qualified freedom of will, and that any individual who has a substantial capacity for choice should be subject to its sanctions. At least, we must proceed upon that assumption until there have been devised more symmetrical solutions to the many faceted problems of society’s treatment of persons charged with commission of crimes.