Criminal division – sentencing

In R v Carroll [2011] VSCA 150 at [9]-[27] Maxwell P (with whom Buchanan JA agreed) discussed the appellant’s mental condition and its relevance to his offending – multiple counts of stalking, burglary, theft, aggravated burglary and using telephone to menace committed with a sexual motivation against twelve different victims over eight months. At [19] his Honour spoke of “the rigour with which arguments of [the Verdins’] kind must be assessed”. He continued:

“As is now well-recognised (R v Robazzini [2010] VSCA 8, [42]), diagnostic labels are, by themselves, of no assistance to a sentencing judge. What matters is what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time: Verdins (2007) 16 VR 269, [8]; R v Zander [2009] VSCA 10, [29].

Where reliance is placed on [Verdins] proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed? (Ashe v The Queen [2010] VSCA 119, [14], [19]; Davey v The Queen [2010] VSCA 346, [25]; MC v The Queen [2011] VSCA 2, [20]–[21]; Bowen v The Queen [2011] VSCA 67, [28], [29], [33]; DPP v HPW [2011] VSCA 88, [28], [63]; Pettiford v The Queen [2011] VSCA 96, [32]–[34].)

There was no evidence of that kind in the present case.”

In R v Martin [2007] VSCA 291 the Court of Appeal agreed with the sentencing judge that the offender’s moral culpability was not reduced by reason of his psychotic state in the particular circumstances of that case but rejected the proposition that self-induced psychosis could never be a mitigating factor. At [19]-[21] Maxwell P and Nettle & Redlich JJA said:

“We would not…endorse the general proposition…that psychosis (or other mental illness) which is drug induced can never be a mitigating factor because it is the result of the offender’s own (illegal) act.

Cases can be imagined where the offender’s psychotic state is drug-induced but is nevertheless treated as lessening the offender’s culpability. For example, the offender might have had no awareness – because of a lack of prior knowledge or experience – that the ingestion of a particular drug might trigger a psychotic reaction. In such a case, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. Again – as in the case of Sebalj [2006] VSCA 106. – the psychosis might occur in the course of the offender’s attempts to withdraw from the use of the drug which was, nevertheless, the cause of the psychosis. In Sebalj, the drug-induced psychosis was seen as substantially reducing the offender’s level of culpability for what he did while under the influence of paranoid delusions.

As these examples illustrate, the critical factor in determining the significance of drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender. There is an obvious parallel in this respect with sentencing for offences committed while under the influence of alcohol, where the concept of ‘reckless intoxication’ has been developed.”

In DPP v Arvanitidis [2008] VSCA 189 the respondent at the time of a police siege was delusional, paranoid, fearful of attacks by terrorists and had considered himself licensed by the Government to possess a gun and shoot police as a consequence of self-induced ‘ice’ intoxication. Commenting with approval on R v Martin, Redlich JA (with whom Buchanan & Nettle JJA agreed) said at [27]-[29]:

“To lose the benefit of Tsiaras and Verdins, it was not necessary that the respondent have foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or make him generally dangerous or violent. If the respondent was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance: R v Martin [2007] VSCA 291 at [18]–[30]; R v Gagalowicz [2005] NSWCCA 452 at [36] It was for the respondent to establish on the balance of probabilities that he did not know that the drug would have such effects. This he failed to do. The respondent’s foreknowledge regarding the potential for paranoia, persecutory delusions, and other forms of disorganised thought was sufficient to preclude the operation of the principle stated in Tsiaras and Verdins. The sentencing judge correctly found that the respondent’s drug induced psychosis at the time of offending was not a mitigating circumstance which reduced his moral culpability.”

In R v Shafik-Eid [2009] VSCA 217 it was clear from both the circumstances of the offences, the appellant’s later disclosed history and a report of a clinical forensic psychologist that the appellant was suffering from quite severe psychological – or even psychiatric – difficulties at relevant times. However, the sentencing judge considered that the appellant’s pre-existing psychological state would not on its own have contributed to the commission of the offences of reckless conduct endangering life and making threats to kill for which he was sentenced to 5 years imprisonment with a non-parole period of 3 years. The judge concluded that these offences were committed because the ‘additional ingredient’ of significant drug abuse had occurred and that the reduction in moral culpability and the significance of that on general deterrence was only “very minor”. In holding that nexus had not been established between the appellant’s mental condition and the commission of the offences, Lasry AJA (with whom Nettle & Redlich JJA agreed) said at [27]:

“In my opinion it was appropriate to limit the effect of the principles identified in Verdins as the sentencing judge did. It could not be said that the appellant’s psychological condition was directly responsible for the offending. For Verdins principles to apply, the appellant had to show that the mental condition had directly contributed to the commission of the offences. The fact that the appellant’s drug taking was a consequence of his mental condition did not establish that nexus.”