The totality of a person’s mental health must now be considered in sentencing
Brown v The Queen [2020] VSCA 212
Summary
On 25 August 2020, the Victorian Court of Appeal held that a person diagnosed with a personality disorder should be treated the same as any other person who seeks to rely on an impairment of mental functioning as a mitigating factor in their sentencing.
Impairment of mental functioning can be considered as a mitigating factor in a person’s sentencing in accordance with the principles from R v Verdins (2007) 16 VR 269.
Before this case, however, the principles set out in R v Verdins were not applicable to people with personality disorders because of the case of DPP v O’Neill (2015) 47 VR 395, which had previously excluded personality disorders from consideration by the courts.
Facts
Ms Brown had pleaded guilty to four charges of arson. Expert evidence presented to the sentencing judge established that Ms Brown was suffering from a severe personality disorder, which constituted an impairment of her mental functioning and had ‘strong causal links to offending’. This evidence was not challenged.
The sentencing judge – Judge Taft – considered himself bound by the previous decision in DPP v O’Neill to hold that personality disorders do not enliven the principles enunciated in R v Verdins. But for that constraint, his Honour said that he would have given ‘very considerable weight’ to the Verdins considerations, which would have ‘materially reduced the sentence to be imposed’.
Ms Brown sought leave to appeal, contending that if the sentencing judge was right to regard DPP v O’Neill as standing for the ‘broad proposition that personality disorders do not enliven Verdins principles’, then DPP v O’Neill was wrongly decided.
Before the Court of Appeal, the Director of Public Prosecutions conceded that, in the light of the expert evidence led at first instance, that a blanket exclusion of personality disorders from the Verdins framework could not be sustained.
Background: the Verdins principles
In R v Verdins, the Court of Appeal found that impaired mental functioning can be relevant to sentencing in at least six ways:
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.
The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
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.
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.
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.
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.
Decision
Verdins principles now apply to personality disorders
Justices Maxwell, Niall, Forrest, Emerton and Osborne of the Court of Appeal held that a person diagnosed with a personality disorder should be treated as in no different position from any other person who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in R v Verdins.
The Court of Appeal held that ‘any categorical exclusion of personality disorders, whether of such disorders in general or of a particular type, could not be sustained’ and that accordingly, the statements in DPP v O’Neill about the inapplicability of Verdins to personality disorders should no longer be followed.
Whether a person’s personality disorder engages any of the Verdins principles should not depend on the particular diagnostic label attached to it. Instead, it should depend on what the expert evidence shows about how the condition affected the person’s mental functioning at the time of the offending and/or about how it would affect them in future.
In this case, the expert evidence established that Ms Brown as having a severe personality disorder with ‘detachment and a borderline pattern’ and concluded that there was a substantial causal link between Ms Brown’s mental disorder and her offending.
The expert evidence also suggested that there were reasonable prospects for Ms Brown’s rehabilitation, and that to achieve the goal she would require ‘a long-term, intensive, tailor-made, bespoke rehabilitation plan both in custody and subsequently in the community’.
The Court of Appeal applied the Verdins framework and found that:
given the causal link between her condition and offending, her moral culpability was significantly reduced.
Ms Brown’s condition had a direct ‘bearing on the kind of sentence that [should be] imposed and the conditions in which it should be served’.
to the extent that specific deterrence is important to sentence, it must take as its starting point the capacity of the offender to moderate their behaviour. In Ms Brown’s case, the expert evidence showed the condition to be of very long standing.
general deterrence needed to be heavily moderated. Given the nature of Ms Brown’s condition and its causal connection with her offending, she was not ‘an appropriate medium for making an example to others’.
that Verdins 5 and 6 were not easily applied.
The Court of Appeal recognised that Ms Brown’s impaired judgment was a function of her longstanding, pervasive personality disorder and unanimously found that she should have her sentence reduced on account of her diagnosed personality disorders.
The appeal was allowed and Ms Brown was re-sentenced to a reduced custodial sentence.
Future cases
For future cases, a personality disorder is likely to engage the Verdins principles only in a case of some severity. The Court of Appeal did not suggest any threshold level of severity which must be reached before the Verdins principles would become applicable.
The Court will not rely on diagnostic labels in assessing whether a personality disorder is likely to engage the Verdins principles, but will look at the circumstances of the case, the nature and content of any expert opinion and whether the expert evidence establishes a clinically significant impairment of mental functioning.
Commentary
This landmark ruling by the Victorian Court of Appeal gives greater scope for judges to consider the totality of a person’s mental health and the role of personality disorders as a mitigating factor in sentencing.
The full case can be read here.
Tracey Yeung is a graduate lawyer on secondment at the Human Rights Law Centre.