Monday, 30 May 2011

Carroll v The Queen [2011] VSCA 150: the application of Verdins to sexual offending

In Carroll v The Queen [2011] VSCA 150 the appellant had been sentenced for numerous counts of burglary, stalking and harassment of different female victims. He appealed, asserting his sentence should have been mitigated, taking into account the principles in R v Verdins [2007] VSCA 102.

Maxwell P [at 12]:

Ground 2 contended that her Honour had erred in finding that the principles enunciated in Verdins had no application. It was submitted that, merely because the appellant knew what he was doing, and indeed had planned some of the offences, this was no basis for rejecting the application of the Verdins principles. (As will appear, only one of the six Verdins principles – the first, concerning moral culpability – was invoked on the plea.)

It's been noted here before that offenders diagnosed with psychosexual disorders such as paedophilia do not attract more lenient sentences under Verdins' principles.

Nettle JA in DPP v OJA and WBA and EBD [2007] VSCA 129 [at 14]:

If the law of sentencing were completely logical, [the respondent] would be sentenced on the basis that his moral culpability is to some extent reduced by his psychosexual dysfunction. The reasons for sentencing sexual deviates in that fashion were examined in the dissenting judgment of Kirby J in Ryan v The Queen. But the idea has not found favour with the bulk of society, or the majority of the High Court. Rather, as McHugh J explained in Ryan, the persistently punitive attitude of the community towards sexually deviate crime mandates that sexually deviate offenders be severely punished for their offences and, even if long sentences do not deter them or others with similar inclinations, they may at least have the effect of putting the offenders in a place where they cannot harm others for the time being. To similar effect, Hayne J observed that, if on examination of a particular offender’s circumstances it is demonstrated that the offender is likely to re-offend, the likelihood of re-offending might ordinarily be thought to go in aggravation not mitigation of the sentence to be imposed.

Legislation regarding serious sex offenders requires the protection of the public to be given precedence over all other sentencing considerations: s 6D Sentencing Act 1991.

The Court of Appeal in Carroll v The Queen [2011] VSCA 150 did not refer to these authorities, however. Maxwell P and Buchanan JA (who had both sat on the original Verdins decision) determined that the trial judge was justified in coming to the conclusions she did based on the evidence presented at the sentencing hearing.

Maxwell P [at 19]:

Not only was her Honour’s conclusion reasonably open but I respectfully agree with it. Her Honour’s approach exemplifies the rigour with which arguments of this kind must be assessed, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal: See, for example, DPP v Patterson [2009] VSCA 222, [46]; R v White [2009] VSCA 177, [13]–[17]; Romero v The Queen [2011] VSCA 45, [13]–[14]. 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: R v Zander [2009] VSCA 10, [29].

Where reliance is placed on 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. It is true that Mr Cummins diagnosed the appellant as suffering from alcohol dependence, kleptomania, pathological gambling, voyeurism and fetishism. But these diagnoses were simply descriptive of the appellant’s behaviours as exhibited over many years. There was no suggestion in Mr Cummins’ report that the offending was attributable to any causative mental impairment.

The evidence was all to the contrary. The appellant’s offending consisted of persistent, purposeful behaviour over a long period, conduct directed quite deliberately at his own sexual gratification and – equally often – at causing distress to his victims, both by what he said and by what he did. It is clear from the appellant’s actions that, as her Honour found, he knew what he was doing. Indeed, he acted with guile in pursuing his ends – as when, in order to persist with his stalking of [one victim], he tricked her father into giving him her phone number (count 27). And, as the Crown pointed out on the appeal, the appellant seemingly had no difficulty in maintaining skilled employment and personal relationships while continuing to offend.

The appeal was dismissed.


Anonymous said...

Shouldn't this be the NON-application of Verdins to sexual offending?

Makintio said...

Maxwell deserves credit for consistency even if nobody is listening. Routinely I see reports where a solicitor has packed the client off for a chat with a psychologist or GP. The report comes back saying he must have been suffering from a bout of depression or she was still grieving from the loss of her husband. Real connections between condition and offence are rare (perhaps rightly?)