Criminal division – sentencing

In R v Rattya [2008] VSCA 149, in the course of agreeing with the primary judgment of Buchanan JA, Nettle & Redlich JJA added at [24]:

“Although Verdins purported to restate the law (see paragraph [31]) – not extend it – it did attribute a greater degree of significance to a prisoner’s mental condition at the time of sentencing, and likely mental condition throughout the period of sentence, than until then had generally been appreciated (see paragraphs [27]-[30]).”

In R v Azzopardi, R v Baltatzis, R v Gabriel [2011] VSCA 372 Redlich JA (with whom Coghlan & Macaulay AJJA agreed) said at [19]:

“There is, generally speaking, no duty on a sentencing judge, in the absence of explicit submissions by counsel, to embark upon an inquiry as to whether any principles in Verdins might be enlivened by the evidence tendered on the plea: R v Zander [2009] VSCA 10, [36] (Nettle JA); Wassef v R [2011] VSCA 30, [18] (Redlich JA). Where a prisoner is represented by counsel, a sentencing judge will not ordinarily be required to consider any possible effects of psychological or psychiatric disability which may go in mitigation of penalty, other than those expressly relied on by counsel: R v Zander [2009] VSCA 10, [36] (Nettle JA).

In R v Martin [2011] VSC 217 it was not disputed that the principles of Verdins’ case would have been applicable. However the Crown submitted that the reduction in the accused’s legal and moral culpability had already been reflected in the Crown’s acceptable of a plea of guilty to defensive homicide as opposed to murder with which he had originally been charged and that to take further account of a reduction in the accused’s moral responsibility would amount to “double counting”. Curtain J rejected this submission. At [27] her Honour said:

“The sentencing function resides in the Court, and the sentencing judge is, in the words of Winneke P in R v Newman and Turnbull (1997) 1 VR 146 at 150, “entitled and indeed bound to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged”. In those circumstances, the decision of the Director to file an indictment alleging one count of defensive homicide and to accept a plea to that charge in resolution of the matter does not eliminate or obviate the necessity to give due weight to your moral and legal responsibility as enunciated in Verdins’ case in the sentencing process.”

Applying the Verdins’ principles in R v Brooks [2008] VSC 70, Coghlan J concluded at [40]-[41] that although there was little about the defendant’s dysthemia – considered in conjunction with his borderline intellectual functioning - which would make him an inappropriate vehicle for general deterrence or operate to reduce his moral culpability, it would nonetheless make the serving of a long term of imprisonment harder for him. And In R v Johnstone [2008] VSC 584 at [37]-[38] Coghlan J also considered that Verdins applied only to the limited extent that a prisoner’s adjustment disorder may make prison more onerous for him at least in the short term.

In R v Foster [2009] VSC 124 in sentencing the accused to 14y/10y imprisonment for murder, Osborn J said at [33]:

“In my view the combination of Post Traumatic Stress Disorder, serious depression and alcoholism is such as to bring your case within the first category contemplated in R v Verdins. The cumulative effect of these conditions was to impair your mental functioning in a manner which reduced the moral culpability of the offending conduct as distinct from your legal responsibility for that conduct. In turn your cumulative condition affects the punishment which is just in all the circumstances.”

Just as certain pre-Verdins’ cases - examples of which are R v Yaldiz [1998] 2 VR 376 and R v Connolly [2004] VSCA 24 – discussed the need for a nexus to be shown between the offending and the offender’s mental condition, so too there are several post-Verdins’ cases in which the Verdins’ sentence moderation has not been applied because of lack of evidence of the requisite nexus.

In R v Charles [2011] VSCA 399 at [162] Robson AJA (with whom Redlich & Harper JJA agreed) summarized the following principles which may be discerned from the authorities when dealing with the establishment of a link between a mental condition and the offending conduct:

“1. The Verdins’ principles are and should be should be regarded as exceptional: R v Vaudreu [2009] VSCA 262, [37] (Ashley JA).

2. The onus lies on the offender to establish the facts to enliven the Verdins’ principles on the balance of probabilities as a mitigating factor: R v Romero [2011] VSCA 45, [18].

3. Cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins are to be enlivened: R v Romero [2011] VSCA 45, [18] (Redlich JA).

4. It is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence and how it is likely to affect him or her in the future: R v Romero [2011] VSCA 45, [13] (Redlich JA).

5. The offender must establish that the offender’s disability had the effect of impairing the offender’s ability to exercise appropriate judgment, or impairing the offender’s ability to make calm and rational choices or to think clearly at the time of the offence: R v Romero [2011] VSCA 45, [13] (Redlich JA).

6. Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to have some ‘realistic connection’ {R v Vaudreu [2009] VSCA 262, [37] (Ashley JA)} with the offending; or ‘caused or contributed’ {DPP v Patterson [2009] VSCA 222, [46] (Maxwell P, Redlich JA, and Vickery AJA); Bennett v The Queen [2011] VSCA 253, [61] (Ashley, Redlich and Hansen JJA)} to the offending; or is ‘causally linked’ {Bennett v The Queen [2011] VSCA 253, [60] (Ashley, Redlich and Hansen JJA)} to the offending.”