It is well known that a person charged with a criminal offence may achieve an acquittal on the basis of ‘insanity’. However, although a large number of people charged with offences suffer from a mental illness, the defence of mental impairment is rarely raised and is even less often successful. A large proportion of criminal defendants suffer from mental illnesses that are not debilitating enough to provide a full defence. Offenders in this category can rely on the Verdins Principles, which were set out in a 2007 decision of the Court of Appeal. The Verdins Principles provide guidance as to how courts may take into account an offender’s mental illness at sentencing.
Sentencing is the process of the court determining an appropriate penalty for offending. It is a process which involves the balancing of multiple factors such as the seriousness of the offence, the importance of various sentencing principles such as deterrence, denunciation and punishment as well as considerations specific to an accused.
When a person is sentenced for criminal offences, the court gives them or their legal representative, the opportunity to make submissions to obtain the minimum penalty possible. The information provided to the court is called a plea in mitigation, and a solicitor representing a person pleading guilty aims to persuade the court to impose a lenient sentence.
Where making submissions on behalf of an offender, the factors that will be most relevant to the court are matters relating to the offending conduct and the personal situation of the offender.
Before the 2007 Verdins judgment (outlined below) mental illness was deemed relevant to sentencing where a ‘psychiatric illness not amounting to insanity’ was suffered by the accused. As such, the legal framework made it clear that those suffering from mental illness falling short of the mental impairment defence should nonetheless have their condition taken into account by a sentencing judge.
In 2007 the Victoria’s highest court, the Court of Appeal, heard three cases on appeal (referred to as the Verdins judgment). The offenders entered pleas of guilty and in submissions in mitigation raised mental health issues. These conditions were suffered either at the time of the offending or at the time of sentencing and the defendants sought that the court consider these when determining their sentences.
In the judgement, the Court of Appeal ultimately outlined six factors (often referred to as the Verdins Principles) that dictate how mental illness may be taken into account at sentencing.
A mental impairment suffered at the time of the offending conduct may reduce the offender’s moral culpability. Where moral capacity is reduced, denunciation will be a less relevant factor.
Choice of sanction
An offender’s mental impairment may affect the sentencing orders made and the conditions imposed by the court. It may, for example mean that imprisonment is an inappropriate disposition in circumstances where the offender has ongoing mental health issues that are likely to be aggravated by a custodial sentence.
Dependant on the nature and severity of the symptoms exhibited by the offender and their mental capacity, the sentencing objective of general denunciation may be moderated or limited.
Similarly to general deterrence, an offender’s mental impairment may affect the extent to which specific deterrence is a relevant sentencing factor. Ordinarily, any sanction determined by a court should take into account what is necessary to deter an offender from future offending, but this may be less applicable in circumstances where an accused’s mental functioning was impaired at the time of committing the offence.
Effect of sentence
Where an offender is suffering a mental health condition at the time of sentencing, or where there is evidence to suggest that the condition may recur in the near future, a sentencing disposition may weigh more heavily on the offender (when compared to the effect on an offender who doesn’t have that mental health condition)
Risk of imprisonment
When there is a serious risk that a term of imprisonment will have a significant detrimental effect on an offender’s mental health, this will be a relevant factor when determining the appropriate sentence.
The Verdins Principles represented a significant broadening of the existing case law on mental health and sentencing. However, since the decision, the courts have taken some steps to limit its application.
While a mental health condition tends to mitigate sentencing, drug or alcohol use (even where the effect of these substances has a similar psychological effect as a diagnosable psychological condition) tends not to reduce an offender’s moral culpability. The basis for such a principle is that of ‘prior fault’ – when a person knows that they have a tendency to become aggressive when consuming alcohol, it will be aggravating if they recklessly became intoxicated and committed an offence.
There are however several exceptions to this general rule. A person has a valid defence to a charge if they ingested alcohol or drugs involuntarily, such as where they unknowingly consumed drugs or alcohol or were forced to do so. An offender’s culpability may also be reduced where intoxication resulted in them acting out of character, or where it was the mental health condition, and not the substance use, that was the primary driver of the offending.
A personality disorder, whilst a diagnosable psychological condition, will not in itself activate the Verdins principles. Regardless of the diagnostic label, an offender must establish that they suffered (or continue to suffer) from an impairment of their mental functioning. Where an accused is diagnosed with a personality disorder and that the condition results in immaturity or other personality trait failings short of mental impairment, the Verdins principles cannot be engaged.
When should the Verdins Principles be raised?
The court is not always required to consider the Verdins Principles. It is only required to do so when they are raised by an accused (or by the solicitor acting on their behalf) and where there is a sufficient evidentiary basis to establish that they were suffering a mental impairment at the time of the offending, at the time of sentencing or where it is anticipated they will be affected during their sentence.
It is for the offender to establish, on the balance of probabilities, the facts which give rise to the Verdins considerations. It is generally not sufficient to merely produce evidence of the offender’s diagnosed mental health condition. An expert report is commonly prepared by a forensic psychologist or psychiatrist detailing how the accused’s condition impacted on the offending. This report will be prepared for the sole purpose of sentencing.
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