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Sentencing: Resolving a controversy

Sentencing: Resolving a controversy

By Tim Marsh

Sentencing 

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A recent decision has brought clarity and certainty to the relevance of personality disorders to sentencing.

Snapshot
  • How sentencing courts appropriately take into account mental illnesses and cognitive impairments has been a historically dynamic area, with constant change and evolution.
  • Until recently, there was no consistency in Victorian courts with respect to how, if at all, courts could take into account personality disorders in sentencing.
  • The decision of Brown v The Queen authoritatively resolves the controversy: offenders with personality disorders should be treated no differently to an offender relying on any other impairment of mental functioning.

Verdins and O’Neill

In 2007, a quiet revolution took place in Victorian criminal law. In a unanimous decision, a bench of three in the Victorian Court of Appeal handed down the landmark decision of Verdins, Buckley and Vo (Verdins).1 Verdins replaced a patchwork of earlier decisions, each of which had sought to codify the principles around how courts should sentence people with mental illnesses and cognitive impairments, either at the time of the offending or at the time of sentence. 

At the risk of over-simplification, Verdins represented a shift away from a categorical or diagnosis-based approach to sentencing. Instead, courts were urged to look at the nature, severity and effect of symptoms of mental illness in order to decide how – if at all – they could be taken into account in sentencing. 

“Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future.”2

Verdins did not directly consider the question of whether or not personality disorders were conditions that fell to be considered. Given the comments above, and the fact it may be that no specific condition could be identified, such an approach would have run counter to the move away from a diagnostic framework to a symptom based framework.

Although the Court in Verdins had intended that the phrase ”mental disorder or abnormality or an impairment of mental function” be interpreted broadly to cover a wide range of conditions, there remained some uncertainty as to whether personality disorders were appropriately considered under the Verdins principles. Some sentencing courts took personality disorders into account, accepting that the disorders were a relevant consideration under Verdins.3 Other courts excluded personality disorders from consideration although in some cases it is unclear if this was a position of principle, or the evidence simply failed to disclose the relevant connection.

The 2015 case of DPP v O’Neill (O’Neill)5 tackled the issue directly. In this case, the Director contended that Verdins had effectively lowered the bar to the extent that “any abnormality or psychological idiosyncrasy” could now be relied on to mitigate the Court’s sentence. A bench of three – including the then Chief Justice – agreed. 

“. . . It is important to keep in mind that, in Verdins, and in this Court’s subsequent application of Verdins, the Court has consistently stated that the principles in Verdins relate to offenders who suffered from ‘mental impairment’ or ‘impaired mental functioning’, whether at the time of the offending or at the time of sentence. While the Court in Verdins regarded the particular diagnostic label as not being determinative, the principles expressed have always been confined to cases in which the offender suffered an impairment of his or her mental functioning. They do not apply to personality disorders such as those from which the respondent suffered.”6

From the paragraph above, it is clear that the Court did not consider that Mr O’Neill’s diagnosed personality disorder was a matter which attracted the operation of the Verdins principles. However, it was far less clear if the Court’s intention had been to exclude all personality disorders from consideration (the broad exclusionary interpretation) or whether the exclusion is confined to only those personality disorders such as those from which the respondent suffered (the narrow exclusionary interpretation).

In the years following O’Neill, superior courts diverged in how they interpreted O’Neill. Some favoured the broad exclusionary interpretation while others confined O’Neill to its own facts – the narrow interpretation. No clear pattern emerged in Victoria. For example, in Herrmann, Hollingworth J adopted the narrow exclusionary interpretation:

“In those circumstances, the Court of Appeal’s brief observations that Verdins principles did not apply to personality disorders ‘such as those relied upon in this case’ should be understood only as referring to the particular personality disorders in that case, namely dependent personality disorder and adjustment disorder with depressed mood . . .”7

In The Queen v Liao and The Queen v Price,8 Lasry J took the opposite approach, finding that Verdins principles do not apply to personality disorders, stating that such disorders do not constitute an “impairment of mental functioning”. Support for the broad exclusionary interpretation grew with the decision of Di Paolo v The Queen (Di Paolo) in 2019, when a bench of three in the Court of Appeal endorsed the approach:

“Second, the applicant was diagnosed with a personality disorder, but not a mental illness. That distinction is critical for the application of Verdins following this Court’s judgment in O’Neill. The Court in that case concluded that whilst diagnostic labels were not determinative, the principles are confined to cases where the offender suffered an impairment of their mental functioning and do not apply to personality disorders . . .”9

Although the Court in Di Paolo did not engage with the interpretive issues in their judgment, their re-statement of the principle in O’Neill, shorn of the qualifying words “such as those from which the applicant suffered”, provides clear endorsement of the broad exclusionary interpretation.

Daylia Brown

Daylia Brown is a young woman with a diagnosis of severe personality disorder with detachment and borderline features. In the days after her 18th birthday, she committed a series of minor arsons in supermarkets and convenience stores in the Melbourne CBD. A few days later, she set a fourth – far more serious – fire at a vacant house in which she had been a resident. The house was destroyed. When arrested and questioned by police, Ms Brown told them that she had lit the fires in order to be returned to juvenile detention. Ms Brown had been remanded in juvenile detention earlier in the year, and in the months since being released had already attempted to break into the detention centre, in order to be reunited with her peers.

Ms Brown was assessed by forensic psychologist Associate Professor Andrew Carroll. He diagnosed Ms Brown as having a severe personality disorder, with pervasive and long-standing effects on her life and social functioning. In Dr Carroll’s view, there was a strong connection between her diagnosis of personality disorder and the motivation for the offending.

Ms Brown pleaded guilty to the four charges of arson and some related summary offending before Taft J of the County Court. Evidence was adduced of Ms Brown’s diagnosis and its effect on her both at the time of the offending and at the time of sentence. Unusually, defence adduced a large volume of evidence of the history of the development of the diagnosis of personality disorder, how it had evolved in psychiatric literature and whether or not it was a disorder capable of altering how a person perceived and reacted to the world around them. At the request of the Court, the prosecutor in the case made available forensic psychologist James Ogloff to give similar evidence of the broader phenomenon of personality disorder.

In sentencing Ms Brown,10 Taft J accepted the diagnosis, its profound effect on her functioning and the close connection between the diagnosis and her offending. However, he considered that the broad exclusionary interpretation of O’Neill was the correct one, and therefore prohibited him from taking it into account in mitigation of Ms Brown’s sentence. 

The Court of Appeal hearing and decision

On appeal, defence argued that Taft J had erred in following O’Neill. The salient point, they submitted, was not which of the broad or narrow exclusionary interpretations should be preferred but whether O’Neill had been correctly decided at all. The submissions highlighted the tension between the Court in O’Neill endorsing the need for a “rigorous evaluation of the evidence” and the lack of apparent evidentiary basis for the Court coming to the conclusion that personality disorders – as a class of disorders or individually – were not “impairments of mental functioning”. 

On the contrary, it appeared as if the Court in O’Neill drew its authority from the Queensland decision of Hayes11 in which Chesterman J had declared in general terms that personality disorders were not “illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it”. It remains unclear how Chesterman J reached that conclusion: the appellant in Hayes was unrepresented and no expert evidence is cited in the judgment. 

The Court in Brown was constituted by a bench of five, led by Court of Appeal President Chris Maxwell. In a unanimous decision, they allowed the appeal, resentencing Ms Brown to a term of custody that would permit her early release into supported accommodation. Reasons followed on 25 August.12 In a single judgment, the Court resolved the inconsistency between Verdins and O’Neill with simplicity and clarity:

“. . . An offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins. Statements to the contrary in O’Neill should no longer be followed. Whether and to what extent the offender’s mental functioning is (or was) relevantly impaired should be determined on the basis of expert evidence rigorously scrutinised by the sentencing court”.13 

Given its findings on the ultimate issue, the question of the broad and narrow interpretations did not fall to be resolved. In strong terms, the Court endorsed the evidence-based approach of Verdins and stressed that each case should turn on a rigorous evaluation of the evidence and expert opinions in that case alone. General statements about classes of disorders should be rejected:

“Accordingly, the statements in O’Neill about the inapplicability of Verdins to personality disorders should no longer be followed. As we have emphasised, this Court has had the benefit of evidence given by two of Victoria’s foremost forensic mental health experts, assistance which was not available to the Court in O’Neill. Acceptance of that evidence also entails rejection of the statement in Hayes, referred to in O’Neill, that ‘personality disorders . . . are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it’”.14

The decision in Brown represents a dramatic reversal in how Victorian courts will be able to view and respond to the presence of personality disorders. However, as the Court went on to note, for an accused to be able to rely on such a diagnosis in mitigation of penalty, the diagnosed disorder would likely need to be of some severity, and rigorous expert evidence would be needed to determine if the diagnosis was simply descriptive of maladaptive behaviour, or was instead driven by a clinically significant impairment of an offender’s mental functioning. 

Finally, the Court noted that even if an impairment of mental functioning was able to reduce an offender’s moral culpability, the sentence may need to reflect a heightened need for community protection if the disorder were pervasive or likely to recur.

“Consideration of personality disorders, and of DB’s case in particular, brings this issue into sharp focus. Precisely because of the enduring character of a personality disorder, the issue of community protection is likely to arise frequently. The risk of reoffending will fall to be considered whenever the expert evidence establishes to the court’s satisfaction that the offender’s mental functioning was impaired at the time of the offending and that the offending was attributable to the impairment.”15

Conclusion

Sentencing remains a complex task in Victorian courts. The decision in Brown has brought clarity and certainty to the relevance of personality disorders to sentencing. However, in doing so, it has laid down a challenge to practitioners – the Court will only act on cogent and detailed expert evidence. Given the diagnostic requirement for a personality disorder to be of long standing, expert reports will necessarily have to consider a significant quantity of collateral material in order to be satisfied of the diagnosis. Although some clinical disorders may be diagnosable on a point-in-time basis, such an approach is unlikely to meet with the approval of subsequent courts. Expert reports will require rigour and scholarship in order to satisfy the stringent requirements of Brown.

Brown represents a victory for individualised and evidence based sentencing. Irrespective of the conclusions that a court may draw from the presence of a personality disorder, to simply elide them from the sentencing process was an injustice. In correcting this error, Brown brings the focus back on the offender as a whole person, not as a legal fiction. ■


Tim Marsh was Chief Counsel at Victoria Legal Aid and is now at the Victorian Bar.

The author is indebted to Jamie Walvisch and Andrew Carrol for their critical analysis16 of the decision in O’Neill and to colleagues Laura Heffes, Emily Allen and Angie Wong for their tireless support and dedication in this case.

  1. [2007] VSCA 102.
  2. Note 1 above, at [13].
  3. See, eg, R v Robazzini [2010] VSCA 8, [38]–[51] (Neave JA, Buchanan JA agreeing); R v Hamilton [2011] VSC 77, [13], [20] (Curtain J); R v Wallis [2013] VSC 721, [32]–[34] (Curtain J); R v West [2013] VSC 737, [31], [42] (Curtain J); R v Hollow [2013] VSC 141, [20]–[21] (T Forrest J); Stensholt v The Queen [2014] VSCA 171, [15], [21]–[22] (Redlich JA).
  4. See, eg, R v Zhang [2009] VSCA 236, [13] (Buchanan JA); R v Bayley [2013] VSC 313, [42]–[43] (Nettle JA); DPP v Anderson [2013] 228 A Crim R 128, 143 [59] (Maxwell P, Neave JA and Kaye AJA); DPP v Hicks [2014] VSC 266, [67]–[68] (Kaye J); R v Perry [2014] VSC 534, [53] (Hollingworth J).
  5. [2015] VSCA 325.
  6. Note 5 above, at [71].
  7. [2019] VSC 694, at [81].
  8. [2015] VSC 730, at [35]; [2016] VSC 105, at [78].
  9. [2019] VSCA 194, at [110] (Priest, Niall JJA and Lasry AJA).
  10. DPP v Brown [2020] VCC 196.
  11. R v Hayes [2010] QCA 96
  12. Brown v The Queen [2020] VSCA 212.
  13. Note 12 above, at [6].
  14. Note 12 above, at [29].
  15. Note 12 above, at [72].
  16. Jamie Walvisch and Andrew Carroll, “Sentencing offenders with personality disorders: a critical analysis of DPP (Vic) v O’Neill” [2017] MelbULawRw 29; (2017) 41 Melbourne University Law Review 417, 426–27.

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