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The Verdins Principles

It is well known that persons accused of criminal offences may achieve a not guilty finding based on insanity. However, although a lot of people charged with offences suffer from mental illnesses, the defence of mental impairment is rarely raised and even less often succeeds. A large proportion of criminal defendants who suffer from mental illnesses are not impaired seriously enough to have recourse to a full defence. Offenders in this situation can rely on the Verdins Principles, which were set out in a 2007 decision of the Victorian Court of Appeal. The Verdins Principles provide guidance on how courts may take into account a defendant’s mental illness when determining the appropriate sentence.

Sentencing generally

When a court sentences an offender it must determine what are the appropriate sentencing orders for the circumstances of the offending and the circumstances of the offender. It must balance multiple factors including the importance of various sentencing principles such as deterrence, denunciation, community protection and punishment as well as considerations specific to an individual accused.

When a person is sentenced for offences, the defence has the opportunity to make submissions in mitigation of their offending and on what penalties are appropriate. The defence generally aims to persuade the court to impose a lenient sentence. The factors that are most relevant to the court are matters relating to the offending conduct and the personal situation of the offender.

Before the 2007 Verdins judgment which is outlined below, mental illness was deemed relevant to sentencing in cases where the accused suffered from a ‘psychiatric illness not amounting to insanity’. As such, the legal framework made it clear that offenders who were suffering from mental illness falling short of the mental impairment defence when their offences were committed should still have their condition taken into account by the court.

What are the Verdins principles?

In 2007, the Victorian Court of Appeal, heard three cases on appeal (referred to as the Verdins judgment). The offenders pleaded guilty and the defence raised mental health issues during their submissions. The offenders all suffered from conditions either at the time of the offending or at the time of sentencing and they sought that the court consider these when determining their sentences.

In the judgement, the Court of Appeal outlined six factors that dictate how mental illness is to be taken into account at sentencing. These principles are often referred to as the Verdins Principles.

Moral culpability

A mental impairment that was suffered at the time of the offending conduct may reduce the offender’s moral culpability. Where moral capacity is reduced, the sentencing purpose of denunciation will be a less relevant factor.

Choice of sanction

An offender’s mental impairment may affect the penalties and conditions imposed by the court. For example, it may mean that imprisonment is an inappropriate disposition if the offender has ongoing mental health issues that are likely to be aggravated by being in custody.

General deterrence

Depending on the nature and severity of the symptoms shown by the offender and the offender’s mental capacity, the sentencing objective of general denunciation may be limited under the Verdins principles.

Specific deterrence

An offender’s mental impairment may limit the extent to which specific deterrence is relevant as a sentencing purpose. Ordinarily, any sanction determined by a court should take into account the need to deter the offender from future offending, but this may be less applicable where the person’s mental functioning was impaired at the time of the offence.

Effect of sentence

Where a person suffers a mental health condition at the time of sentencing, or where there is evidence to suggest that such a condition may recur in the near future, a sentencing disposition may weigh more heavily on them than it would on someone who doesn’t have that mental health condition. This may also be taken into account at sentencing.

Risk of imprisonment

When there is a serious risk that imprisonment will have a significant detrimental effect on a person’s mental health, this will be a relevant factor when deciding on the appropriate sentence.

Further Developments

The Verdins Principles were a significant broadening of existing case law on mental health and sentencing. However, since the decision was handed down, the courts have taken a few steps to limit its application.

Self-induced conditions

While a mental health condition has the effect of mitigating offending, drug or alcohol use (even where the effect has a similar psychological effect as a diagnosable condition) tends not to reduce an offender’s level of moral culpability. The basis for such a principle is that of ‘prior fault’ – for example, when a person knows that they tend to become aggressive when consuming alcohol, it is an aggravating factor if they recklessly became intoxicated and committed a violent offence.

There are however some exceptions to this general rule. A person has a valid defence to a criminal charge if they ingested alcohol or drugs involuntarily, such as where they were forced to do so or did not unwittingly. An offender’s culpability may also be reduced where their intoxication resulted in acting out of character, or where it was their mental health condition rather than their substance use, that was the primary driver of the offending.

Personality disorders

Personality disorders, whilst diagnosable psychological conditions, do not in themselves activate the Verdins Principles. Regardless of the diagnostic label, an offender must prove that they suffered or suffer from an impairment of their mental functioning. Where an accused has been diagnosed with a personality disorder and that the condition results in immaturity or other personality trait failings that fall short of mental impairment, the Verdins Principles cannot be engaged.

When should the Verdins Principles be raised?

The court does not always have to consider the Verdins Principles. It is only required to do so when the defence raises them and where there is sufficient evidence to establish that the accused was suffering a mental impairment at the time of the offending, at the time of sentencing or that it is likely they will be affected during their sentence.

Standard of proof

It is for the defence to establish, on the balance of probabilities, the existence of facts that give rise to the activation of the Verdins Principles. It is generally not sufficient to merely produce evidence of the fact the offender has been diagnosed with a mental health condition. An expert report is often prepared by a forensic psychologist or psychiatrist that details how the person’s condition impacted on the offending. This report will be prepared solely for the sentencing court.

If you require legal advice in relation to a criminal law matter or in relation to any other legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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