this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Update on access to LIV member facilities.

For details, see our 

COVID-19 Hub
Select from any of the filters or enter a search term
Calendar
Calendar

The Verdins Principles

The Verdins Principles

By Rose George

Justice Practice & Procedure Young Lawyers 

0 Comments


Courts are required to determine what the most appropriate sentencing orders are based on the circumstances of an individual. This often involves balancing multiple factors such general and specific deterrence,denunciation and punishment, as well as considerations specific to an accused, such as their moral culpability and the risks that a term of imprisonment poses.

While mental impairment as a relevant sentencing consideration is broadly accepted under Victorian common law and statute, not all offenders successfully reach an acquittal on the basis of mental incapacity. This is due to the high threshold of the defence under the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic) (CMIA).

Prior to the Verdins1 judgement in 2007, offenders facing mental illnesses who fell short of the mental impairment defence under statute still had their mental illness considered by sentencing judges in circumstances where they could prove that a “psychiatric illness not amounting to insanity”2 was suffered.

The case

In 2007 the Victorian Court of Appeal heard three cases in which the issue of mental health was raised as a mitigating factor relevant to the sentence the Court was to impose. The offenders entered pleas of guilty and sought that, in determining their sentence, the Court take into account the mental health issues they faced either at the time of the offending or at the time of the sentence.

In the judgement, the Court held that, “impaired mental functioning, whether temporary or permanent”3 may be relevant to sentencing in at least six ways. These are commonly referred to as the Verdins Principles and dictate the following ways that a mental condition of offenders can be taken into account at sentencing:

·       Principle 1: The moral culpability of the offending conduct is reduced

·       Principle 2: The kind of sentence imposed and the conditions in which it should be served have a bearing

·       Principle 3: General deterrence is moderated or eliminated

·       Principle 4: Specific deterrence is moderated or eliminated

·       Principle 5: The weight of a sentence on the offender in comparison to a person in normal health

·       Principle 6: The significant adverse effect on the offender’s mental health as a result of imprisonment

Personality disorders

While personality disorders are not grounds for mitigation of sentence in accordance with Verdins, the recent case of Brown v The Queen [2020] VSCA 212 provides a new development on this issue.

In the matter of Brown, it was ultimately accepted that a personality disorder can in fact constitute an impairment of mental functioning and have “strong causal links to the offending”4, which may result in a reduced sentence.

Other considerations

In addition to the mental health factors, the Court will still balance the various other sentencing principles when determining sentences to ensure it is a balanced and appropriate outcome.

Conclusion

As a result of the application of Verdins, it may ultimately be determined by a Court that imprisonment is an inappropriate disposition in circumstances where the offender has ongoing mental health issues that are likely to be aggravated by a custodial sentence.

While there is no automatic mitigation of sentence by application of Verdins simply because an offender suffers/has suffered a mental illness, assessment of the relationship between the condition, the offence, and other relevant matters may ultimately result in a mitigation of sentence.

Rose George is an admitted Australian lawyer and is associate to his Honour Judge Doyle of the County Court of Victoria.

  1. R v Verdins & Ors [2007] VSCA 102
  2. Ibid, paragraph 1
  3. Ibid, paragraph 32
  4. Brown v The Queen [2020]

Views expressed on liv.asn.au (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment