19 June 2012


'Sentencing Offenders with Impaired Mental Functioning: Developing Australia's 'Most Sophisticated and Subtle' Analysis' by Jamie Walvisch in 17(2) Psychiatry, Psychology and Law (2010) 187-2010  notes that
When the Victorian Court of Appeal decision in R v Verdins (2007) 16 VR 269 was handed down, it was described as Australia’s ‘most sophisticated and subtle analysis’ of the relevance of psychiatric symptomatology to sentencing. In the two years since Verdins was decided, it has been raised in over 100 cases in Victoria alone. This article examines those cases, looking at how the law has developed since 2007. In the course of doing so, the author highlights a number of gaps which still exist in relation to the sentencing of offenders with impaired mental functioning. He concludes by suggesting an approach to filling those gaps, and to addressing this complex issue in general.
Walvisch comments that -
People with mental illnesses "comprise a disproportionate number of people who are arrested, who come before the courts and who are imprisoned". Yet despite the prevalence of offenders with mental health concerns, little academic work has been done to examine the way that the law currently addresses, and should address, the sentencing of people with mental illnesses who are convicted of an offence. Instead, for the past 150 years, most of the legal works which have been written about mental illness have focused on the issue of legal responsibility. While in recent years other related issues have also been addressed (such as the disposition of offenders found not guilty by reason of insanity, or the treatment of those who have become mentally ill while in prison), the sentencing of offenders with mental illnesses remains an underdeveloped topic of study. 
Given the prevalence of such offenders in the criminal justice system, it is not surprising that this issue has received far greater attention in the courts. For example, over the past decade courts in each of the Australian jurisdictions have looked at the way in which an offender’s impaired mental functioning should be taken into account in sentencing him or her. In Victoria, this issue has been raised in over 100 cases in the past two years alone. 
To some extent, this deluge of cases in Victoria has been driven by the judgement in R v Verdins, which was handed down in 2007. In that case, the Victorian Court of Appeal identified at least six ways in which impaired mental functioning could affect sentencing: by reducing the offender’s moral culpability; by influencing the kind of sentence to be imposed; by moderating or eliminating the need for general deterrence; by moderating or eliminating the need for specific deterrence; by making a sentence weigh more heavily on the offen- der than on a person in normal health; or by creating a serious risk of imprisonment having a significant adverse effect on the offender’s mental health (the 'Verdins principles'). 
In his commentary on Verdins, Freckelton noted that the judgement is "Australia’s most sophisticated and subtle analysis of the relevance of psychiatric symptomatology to sentencing". The case liberalised the law, allowing a wide range of impairments to be taken into account in a variety of ways. However, while this landmark decision went a "substantial distance" towards clarifying the law, it also left a number of issues unresolved.  
This article looks at how Victorian law has developed in this complex area over the past two years, highlighting the gaps which still exist and which need to be addressed. It concludes by suggesting that the best way to fill these gaps and to approach the sentencing of people with impaired mental functioning – in Victoria and elsewhere – is to think clearly about the reasons why we sentence people, and to adopt a principled approach.
He goes on to note that -
courts have applied the Verdins principles in cases where the offender’s impairment has been found to (at least partly) result from the following conditions:
  • schizophrenia; 
  • depression; 
  • bipolar disorder; 
  • dysthymia; 
  • acquired brain injury; 
  • intellectual disability; 
  • post-natal depression; 
  • schizoid personality disorder; 
  • post-traumatic stress disorder.
Although not yet determined, the Verdins principles may also apply where the relevant condition is ‘learned helplessness’ arising from a prolonged history of family violence. While it was intended that the Verdins principles be interpreted broadly, it has been held that they do not apply to all cases in which an offender’s mental functioning is impaired. For example, the principles have been held not to apply in the following cases: where the offender’s impairment arose from the ordinary pressures of daily life, such as
  • work, financial and marital pressures; 
  • where the offender’s impairment was the result of drug or alcohol use; 
  • where the offender was extremely sensitive to abuse, and had a problem with impulsivity, but did not have a diagnosable clinical psychological disorder or personality disorder; 
  • where the offender suffered from a conversion disorder.
Unfortunately, in none of these cases did the court elaborate upon the reasons why the offender was not able to rely upon the Verdins principles, despite the fact that his or her mental functioning was impaired at the relevant time. It was simply assumed in each of the cases that the principles did not apply in the circumstances.