Edit: In Abdifar v The Queen [2012] VSCA 66 the Court of Appeal rejected the notion that Verdins needs to be specifically referred to by the sentencing judge in order to find that the principles had been properly considered.

It is true that his Honour did not explicitly mention the extent to which he thought that general deterrence needed to be moderated, having regard to the appellant’s bipolar condition. But then, his Honour did not mention general deterrence at all in his sentencing remarks. Nor, for that matter, did he mention specific deterrence, denunciation or punishment. The sentencing judge was a very experienced trial judge, and it is inconceivable that he did not have regard to such fundamental sentencing principles, even though he did not make express reference to them. In all the circumstances, I am not persuaded that his Honour failed to appropriately moderate the need for general deterrence.

There have been two cases referring to R v Verdins [2007] VSCA 102 in the last couple of days. Both demonstrate that the principles of that case have often be repeated but remain frequently misunderstood.

Pato v The Queen

In Pato v The Queen [2011] VSCA 223 the Court of Appeal considered the application of Verdins to a case of domestic violence. Counsel for the applicant submitted that insufficient weight had been given by the sentencing judge to the appellant’s depression; the prosecutor submitted that Verdins should not have applied at all but had, in fact, been applied by the judge in the appellant’s favour.

Hansen JA [at 18, Harper JA agreeing]:

It is convenient to deal first with the question of whether, and if so how, Verdins applied to the present case. In doing so, I bear in mind the statement of Ashley and Weinberg JJA in R v Vuadreu VSCA 262 that:

It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional.

Further, as Dodds-Streeton JA stated in R v Zander [2009] VSCA 10:

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.

In this regard it is to be noted that the six factors in Verdins relate to different aspects and objectives of the sentencing exercise, hence it is necessary to assess the relationship between the mental impairment of the particular offender and a particular sentencing factor said to be moderated thereby.

The Court of Appeal found that the grounds of mitigation had not been satisfactorily expressed, but that alone didn’t make the sentence of three years imprisonment unfair. The Court dismissed the appeal.

Walker v The Queen

In Walker v The Queen [2011] VSCA 230 the applicant sought to overturn an initial refusal for leave to appeal against her sentence. Hansen and Harper JJA again comprised the Court of Appeal, and upheld Maxwell P’s earlier decision to refuse leave. Harper JA [Hansen agreeing, at 7]:

In support of the first ground, the applicant submits that despite extensive evidence that her judgment was impaired by mental health problems, which evidence her Honour accepted, the judge’s conclusions were at odds with those findings. Principal amongst the relevant evidence is the conclusion of Mr Jeffrey Cummins, a consulting, clinical and forensic psychologist, that the applicant’s offending behaviour should be viewed as being reflective of her mental health problems. The judge nevertheless could not find a causal connection between those problems and the applicant’s offending conduct.

What the applicant must show is that on the balance of probabilities her moral culpability has been reduced by her impaired mental functioning. In deciding whether the burden of proof had been discharged, the judge was entitled to examine the offending conduct and set that against Mr Cummins’ opinion. I have already noted that the applicant was in charge of a sophisticated operation involving negotiations with her Melbourne supplier, the selection and distribution of the drugs, how the money was collected and the nature of the transactions. She also, as I have said, recruited those involved in the Warrnambool operations. The applicant was the bookkeeper for the business, a task which she undertook with apparent skill and dedication. She also evinced a preparedness to take whatever steps she reasonably could to avoid the detection of the trafficking business.

This conduct is very difficult to reconcile with reduced moral culpability. The Crown’s position is that the evidence given by Mr Cummins was, ‘vague, tenuous and speculative’. According to the Crown, that evidence did not establish that the applicant’s mental condition directly contributed to the offending. Even if such a link were established, the moderation of the moral culpability must, the Crown submitted, be ‘slight at best’.

In my opinion, it was open to her Honour to hold that even if the level of planning and sophistication of the applicant’s trafficking could be reconciled with Mr Cummins’ opinion that there was a causal connection between the applicant’s mental health and her offending, it was nevertheless open to the judge to conclude that those problems were not such as to affect the applicant’s moral culpability. I respectfully agree with the President in concluding that this ground is not reasonably arguable. The sentencing judge’s application of the principles set out by this court in R v Verdins was exceptionally thorough and careful. Her Honour’s conclusion regarding the nature of the causal link, or lack thereof, between impairment and offending was well open on the medical evidence tendered. As in R v Shafik-Eid and R v Zander her Honour was entitled to conclude that the applicant’s mental impairment did not directly contribute to her offending behaviour.

Verdins isn’t an easy test to satisfy and an argument attempting to invoke its principles requires significant preparation. People easily forget that, of the three applications considered together in Verdins, none of them succeeded. In Maxwell P’s words [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 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.