Further Edit: The paedophilia and paraphilia ‘exception’ discussed in DPP v OJA [2007] VSCA 129, where the High Court’s majority view in Ryan v R (2001) 206 CLR 267 was said to take precedence over Verdins principles, has recently been approved by the Victorian Court of Appeal in WCB v The Queen [2010] VSCA 230.

Edit: I’ve received some feedback about this post querying how much of a discount Verdins principles afford. I’m going to dodge the question and take refuge in Hayne J’s remarks in AB v The Queen (1999) 198 CLR 111 [at 115] where an argument that a particular scenario merited a discrete discount was rejected.

There are several flaws in the argument.

First, it assumes that sentencing an offender is some mechanical or mathematical process. It is not. Nobody can identify, let alone define, some precise relationship between the complex and infinitely various elements that bear upon what sentence is to be imposed on an offender such as this appellant. No calculus will reveal some mathematical relationship between this appellant’s remorse, the harm he has inflicted on his victims and society’s denunciation of what he did to them. A sentencing judge can do no more than weigh these and the many other factors (such as retribution and deterrence) that bear upon the question and express the result as several terms of imprisonment to be served, wholly or partly concurrently or consecutively. Remorse, harm, denunciation, retribution and deterrence – in the end, all these and more must be expressed by a sentencing judge in units of time. That is a discretionary judgment. It is not a task that is to be performed by calculation. Resort to metaphors such as “discount” or “allowance” must not be taken as suggesting that it can be.

The Court of Appeal found in Londrigan v R [2010] VSCA 81 that a diagnosis of Attention Defecit Hyperactivity Disorder (ADHD) did not merit a lesser sentence than had been awarded by the sentencing judge.

The appellant sought to attract the application of Verdins principles in mitigation. (It’s not correct to say that Verdins only applies in some cases and not in others. Where the issue of the mental state of the offender and its connection to sentence arises (see Weinberg J’s sentencing remarks in R v Wahani [2009] VSC 319 at 33), the principles in Verdins always apply. But the application of these principles is simply one part of the sentencing synthesis, and has no pre-determined impact on the resulting penalty).

Since Londrigan, a differently-composed Court of Appeal handed down Leeder v R [2010] VSCA 98. There, an offender was resentenced after the Court found the sentencing judge had failed to take appropriate account of the offender’s intellectual disability.

The Court in Leeder, comprised of Maxwell P and Buchanan JA (two of the three judges in Verdins case), adopted the reasoning of pre-Verdins cases in R v Yaldiz [1998] 2 VR 376 and Kirby J’s judgment in Champion (1992) 64 A Crim R 244 at 254.

Buchanan JA [at 34, Maxwell P expressly agreeing in his own reasons]:

34 Moral culpability and general deterrence apart, the appellant’s disability attracted the operation of Principle 5 in R v Verdins. That is, imprisonment imposes a greater burden on someone who is functioning with the brain power of an eight year old. That aspect does not appear to have been taken into account on sentence, although it was adverted to on the plea.

A review of cases decided since R v Verdins [2007] VSCA 102 might be useful. What follows isn’t an exhaustive list, but does provide a thumbnail sketch of the Court of Appeal’s approach to a variety of mental issues. I haven’t included reference to any pre-R v Verdins cases; many helpful statements of general principle are available in the JCV’s Sentencing Manual and there’s also more information on the NSW Judicial Commission’s website.

Verdins principles

In R v Verdins [2007] VSCA 102 the Court of Appeal laid out the now famous restatement of considerations applicable to sentencing offenders with what the law referred to in previous generations as, ‘abnormalities of the mind’.

Maxwell P, Buchanan and Vincent JJA [at 32]:

32 Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. 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.

Applying Verdins

The Court was at pains to make clear that the condition would only be considered mitigatory under points 1, 3 and 4 if a causal link could be established between the condition and the actual offending. If no causal link is established, focus then shifts to considerations 3, 5 and 6. if the condition exists at the time of sentencing or will exist wile the offender is undergoing sentence.

The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters: Dodds-Streeton JA in R v Zander [2009] VSCA 10. Although helpfully enumerated in many cases, the relevant considerations do not constitute a rigid code and it is unnecessary to apply them to each of the considerations as if completing a check list: R v McIntosh [2008] VSCA 242.

Causal link established

Some mental conditions have been treated as potentially mitigating: R v Howell [2007] VSCA 119 where a schoolteacher who sexualy abused one of her students was found to suffer from a mitigatory depressive illness, DPP v Richardson [2007] VSC 221 where a murder accessory’s penalty was mitigated by her ‘fragile emotional state’; R v Atik [2007] VSC 299 where sub-normal intelligence and psychosis mitigated the period of imprisonment imposed for terrorism offences; a serious depressive illness in the context of rape and false imprisonment (R v Parton [2007] VSCA 268); a solicitor whose depression mitigated his theft from a trust account (R v Slattery [2008] VSC 81, and also R v Bernstein [2008] VSC 254); acquired brain injury and alcoholism as mitigation for rape (R v Finlayson [2008] VSCA 50); R v Iadonmwonyi [2008] VSCA 135 where the principles of Verdins were applied to the hospital detention order the court imposed, but a balancing process between Verdins and ‘community protection’ was deemed necessary; murder (R v Rattya [2008] VSCA 149); attempted suicide in which the person did not die but instead committed culpable driving (R v Clark [2008] VSC 633); and of course most recently in the case of an intellectually disabled offender who assaulted and attempted to rape women unknown to him in public, and who was described as having the IQ and maturity of ‘an 8 year old’ (Leeder). In R v Ephstein [2011] VSC 8 suicide attempts and eating disorders coupled with the senseless nature of trhe murder attracted both limbs of mitigation.

Link not established

In other decisions, courts have applied Verdins but been left unsatisfied of such a causal connection. Examples include pathological gambling (notably in R v Grossi [2008] VSCA 51, but previously in R v Do [2007] VSCA 308 and subsequently in R v MacNeil-Brown [2008] VSCA 190); battered wife syndrome leading to thefts from an employer (R v Elias [2007] VSCA 125); paedophilia and paraphilia (DPP v OJA [2007] VSCA 129, where the High Court’s majority view in Ryan v R (2001) 206 CLR 267 was said to take precedence over Verdins principles); personality or mood disorder as motivation for elaborate tax fraud (DPP (Cth.) v Rowson [2007] VSCA 176); Attention Deficit Disorder (ADD) as a mitigatory feature of the rape of an elderly woman by a 15 year old male (R v JED [2007] VSC 348) and ADHD to explain drug trafficking and stolen property (Londrigan v The Queen [2010] VSCA 81); mild depression and prescription drug addiction of a police officer where the officer had supplied confidential information to a drug dealer (R v Bunning [2007] VSCA 205); a diagnosis of bi-polar disorder where the offender had previously denied played any role in the offending, an aggracated burglary (R v Christopher [2007] VSCA 290); self-induced drug psychosis (R v Martin [2007] VSCA 291) discussed here last year; sexual abuse as a child offered and rejected as causitive influence in culpable driving (R v Audino [2007] VSCA 318); alcohol and drug-use as mitigation for repeated violent attacks in public (R v Chong [2008] VSCA 119); aquired brain injury due to carbon monoxide posioning as the result of a suicide attempt (DPP v Glascott [2008] VSC 236); depression at the time of the murder (R v Fitchett [2008] VSC 258) though it should be noted that depression as mitigation at the time of sentencing was uncontentious and accepted as mitigation in regard to point 5 and 6 of the Verdins considerations – and that the offender in this case will be resentenced as a result of the re-trial concluded recently; depression as a motivating factor in a string of burglaries R v Buckley [2007] VSCA 107) heard together with Verdins, the Court of Appeal concluded amphetamine use and addiction, not mental illness, was productive of the offending; and R v Vo [2007] VSCA 107, also heard with Verdins where the principles were applied but did not affect the outcome. In Wassef v The Queen [2011] VSCA 30 the connection between an ‘adjustment disorder’ and dangerous driving was ‘very vague’ and insufficient to deserve more than limited mitigation. In Bowen v The Queen [2011] VSCA 67 the oral testimony of psychologist Jeffrey Cummins about the depression of a young man was insufficiently connected to the premeditated rape of a stranger. In Melham v Regina [2011] NSWCCA 121 an obsessive-complusive disorder was rejected as the causal motivation for child pornography offences.

An inconsistent approach?

It’s possible to dismiss the two branches of decisions as the inconsistency of differently composed courts. However, judges sitting on one case which applied Verdins in mitigation also sat on other cases where it was found not to apply. While the diversity of cases seem to offer few common elements, the cases where Verdins principles were mitigatory were usually where the causal link was established. Where this link was not established, mitigation did not follow.

These judgments are a reflection of the case-by-case approach preferred in Verdins, where Maxwell P, Buchanan and Vincent JJA said [at 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 inquiry. 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.

It would be unwise to treat any of the cases above as standing for the proposition that a particular category of condition described above cannot properly be considered mitigatory Verdins principles (with the possible exception of psychosexual dysfunction). In some of these cases the mitigation was not accepted or rejected on the basis of whether a particular category of condition fitted under the Verdins umbrella, but merely whether the condition had been proved (or the causal link established) on the evidence available in that particular case.

Maxwell P revisited his earlier remarks and stressed the importance of treating each case on its merits (specifically in relation to the issue of intellectual disability) again in Leeder when saying [at 39]:

39 Finally on the issue of intellectual disability, it seems to me important to ensure that this species of mental impairment is addressed with the same rigour and specificity as necessary in relation to the more familiar area of mental illness. The use of labels such as ‘mild’ or ‘moderate’ or ‘severe’ intellectual disability does not assist the sentencing court in deciding whether, and if so to what extent, sentencing considerations are affected by the condition of the particular person. What the Court needs to know is how the disability (is likely to have) affected the mental functioning of the particular offender at the time of the offending (or in the lead-up to it) and/or how it is likely to affect him/her in the future. As with mental illness, so with intellectual disability, there is scope for considerable refinement of expert opinion, and therefore of argument before sentencing courts, about how these matters are to be taken into account.