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Tuesday, 18 October 2011

Green v The Queen [2011] VSCA 311: just punishment, specific deterrence and Verdins

This is another post about Verdins. In that case, Maxwell P, Buchanan and Vincent JJA laid out six principles [at 32]:



1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.



2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.



3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.



4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.



5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.



6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.




The Court of Appeal helpfully provided a numbered list of limbs of the Verdins doctrine. They aren't conceptually difficult. A major theme of the original decision was that those with mental conditions may have reduced moral culpability, diminishing their suitability as vehicles for general deterrence. It's tempting to try to distil the essence of the case still further into a 'mental condition = mitigation' equation (and many practitioners do), but that isn't accurate.



I've written about Verdins' case before here, here, here and here.



Green is the latest in a long series of cases where the Court considers itself obliged to revisit the original decision, adding little but repeating what was said there. The appellant here committed two 'carjackings' on consecutive days while armed with a meat cleaver (a different cleaver each time, it seems). He was easily identified as the culprit and pled guilty to the crimes.



Although the appellant had an extensive history of institutionalisation, with a long history of paranoid schizophrenia, assessment by a forensic psychiatrist rendered an opinion that a defence of mental impairment was not available as he possessed the necessary insight and self-control to be considered 'sane' at the time of the offences.



Maxwell P [at 19]:



The submission for the appellant was that, because of the link between [the appellant’s] mental illness and the offending, just punishment ‘was of little significance for sentencing purposes’. This submission misunderstands, however, the first of the principles summarised in Verdins, as follows:



The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.




Other things being equal, a reduction in moral culpability will ordinarily mean that ‘the punishment that is just in all the circumstances’ will be less than it would have been had there been no such reduction. But the assessment of moral culpability is only one aspect of the Court’s task of determining a ‘just punishment’. As the judge correctly pointed out on the plea, the determination of ‘just punishment’ must be based on a consideration of all relevant sentencing principles.



...



For similar reasons, his Honour was correct to conclude that specific deterrence remained a relevant consideration notwithstanding the reduction in moral culpability.



The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen:



[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the same measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.




In the present case, specific deterrence still had real significance. On the uncontested evidence, the appellant had been fully aware of what he was doing and that it was wrong. Although his decision-making was, on the evidence, impaired to some extent by his chronic illness, the evidence showed that he had been able to act in a logical and purposeful way, first in planning and then in carrying out the armed robberies. It was appropriate to treat as one of the purposes of this sentence the deterring of [the appellant] from engaging in similar conduct in the future.




The conclusions of this case are, really, self-evident. A just punishment is the one appropriate in the circumstances. It might be that the appellant's counsel was thinking of just desserts, the Old Testament notion of bad things being made to happen to bad people, but I don't know that s 5(1)(a) of the Sentencing Act is so limited.



It's easy to see how giving a person with a mental condition a sentence more severe than is appropriate in order to send a message to others is wrong. But an unjust sentence is also a failure of the sentencing process, and so is one that fails to adequately address a need for specific deterrence.

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