Dr Dion Gee Australasian Psychology Services

1. Sentencing Offenders With Impaired Mental Functioning:R v Verdins, Beckley and Vo [2007]& Forensic Mental Health EvidenceJanuary 2015 - Canberra (ACT) Dr Dion Gee Australasian Psychology Services Australasian Psychology Services Dr.Gee@AustralasianPsychologyServices.co:www.AustralasianPsychologyServices.co

2. Impaired Mental Functioning– Overview – • Nexus between Mental Disorder and Aberrant Behaviour in sentencing has long been recognised. • Disproportionate number of individuals with mental health concerns in the criminal justice/correctional system • In 2007 the VSCA radically altered judicial sentencing in Victoria, with R v Verdins, Buckley and Vo [2007]. • Is the most liberal appellate decision on the mitigating effects of psychopathology & relevance of symptomology to sentencing. • Moves beyond the traditional narrow framework of legal responsibility – and focus on (NGRMI).

3. Evolution of Verdins • In 1996 the Supreme Court of Appeal held (in Tsiaras) that ‘serious psychiatric illness not amounting to insanity’ was relevant to sentencing in at least the following ways: “First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health (R v Tsiaras [1996]).”

4. Evolution of Verdins • Ambiguity about which ‘psychiatric illnesses’ met the threshold of ‘seriousness’ to invoke the principles of Tsiaras. • VSCA resolved the ambiguity when it asserted: “the sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of “serious psychiatric illness.”” • Thus broadening the scope of sentence mitigation to: • potentially all situations where an offender experienced ‘impaired mental functioning (IMF)’ • stating the focus was on the nexus between symptomatology and offending or its ongoing impact; NOT the establishment of a diagnosis or the ascribing of a diagnostic label. • mitigation may also be available if imprisonment may weigh more heavily upon someone with IMF than the ‘ordinary offender,’ and/or may lead to a deterioration in mental health.

5. Impaired Mental Functioning– ‘The Condition’ – • Where individual suffers ‘a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.’ • No need for an individual to suffer from a diagnosable mental illness, or for that illness to be of a particular level of gravity or permanency. • What matters is evidence about the nature, extent, and effect of the IMF experienced by the offender at the relevant time. • Sentence mitigation depends on how a given condition affects an individual’s aberrant behaviour; and how that condition is likely to be affected by the Court’s disposition.

6. The Verdins Principles Held that “impaired mental functioning, whether temporary or permanent (the condition)” [at 32], may be relevant to sentencing in at least six ways. The condition may: • reduce the moral culpability of the offending conduct; • have a bearing on the kind of sentence imposed/the conditions in which it should be served; • moderated or eliminated general deterrence; • moderated or eliminated specific deterrence; • mean that a sentence will weigh more heavily on the offender than it would on a person in normal health; • result in a serious risk that imprisonment has a significant adverse effect on the offender’s mental health.

7. Verdins & Sentencing • No automatic mitigation of sentence simply because an offender suffers/has suffered a mental illness, however severe. • Requires scrutiny/assessment of the relationship between the ‘the condition,’ the offending, and other relevant matters. • An offender’s ‘condition’ would only be mitigatory under principles 1, 3 and 4, if a causal nexus is established between the condition and their actual offending. • When no causal link is established, focus shifts to principle 3, 5 and 6, if the condition exists at the time of sentencing/will likely exist whilst undergoing sentence. • IMPORTANT: Verdins may still apply, even in situations were no causal nexus to offending can be established.

8. Forensic Mental Health Evidence “Where a diagnostic label is applied to an offender… this should be treated as the beginning, not the end, of the enquiry” • Need for identification of the type of condition the offender was suffering at the time. • More importantly, there is a need for clear evidence that any such condition gave rise to any of the ‘VerdinsEffects’. That is, symptomatology which: “impacts deleteriously upon the capacity to exercise appropriate judgment, to make calm or rational choices, to think clearly, to disinhibit the offender, to appreciate the wrongfulness of conduct, or which obscures the intent to commit the offence.”

9. The Verdins Principles & Forensic Mental Health Evidence– Applications of Psychological Knowledge –

10. Moral Culpability– Verdins Principle 1 – IMF may be taken into account during sentencing if it reduces the offender’s moral culpability.i.e has the effect of • impairing the offender’s ability to exercise appropriate judgment; • impairing the offender’s ability to make calm and rational choices, or to think clearly; • making the offender disinhibited; • impairing the offender’s ability to appreciate the wrongfulness of the conduct; • obscuring the intent to commit the offence IF IMF: • contributing (causally) to the commission of the offence.

11. Moral Culpability– Case Example – • Consider nature, severity and effect of condition • “Diagnostic label…should be treated as the beginning, not the end of the enquiry” (R v Verdins; at 13) • Therefore assessor must address link between symptom profile underpinning the mental condition and how those affect the offender’s moral culpability and behaviour at time of offence • R v Verdins and R v Zander: “offenders’ moral culpability is not simply reduced through presence of symptom clusters.. But court must be convinced that at the time of the offence, the individual’s mental capacity was affected in “relevant ways” by those symptoms/conditions” • Eg. BPD

12. Kind Of Sentence– Verdins Principle 2 – • IMF may have a bearing on the kind of sentence that the Court imposes, and/or the conditions in which it should be served. Specifically: • an offender may be sentenced to a term of imprisonment; • be detained in a secure mental health facility - by way of a hospital security order, or residential treatment order; • or, be given a non-custodial order. • Considers the need to impose longer than usual parole periods. • specific intervention might not be adequately undertaken in prison. • specific intervention options are more likely to present themselves upon the individuals release. • Considers the need for increased monitoring of an individuals condition by authorities for release from custody. • No definitive account on how IMF mitigates sentencing; especially in relation to the imposition of hospital orders.

13. Kind Of Sentence– Clinical Application – • Disposition is solely a matter for the Court. • Forensic assessors can however inform the Court in the following areas: • likelihood and potential efficacy of offender treatment for their impaired mental functioning across the various settings; • capacity of correctional/mental health systems to tailor programs to the specific needs of an individual presenting with IMF. • Role becomes increasingly important given the limitations of correctional service provision: “prisoners with a mental impairment... are not always able to access appropriately tailored programs and treatment that might help improve and modify their symptoms and behaviour” (Department of Justice, 2010 p. 45).

14. General Deterrence– Verdins Principle 3 – • IMF (at the time of offence, and point of sentencing) may mitigate sentencing in relation to the need for General Deterrence in at least three scenarios: • The effect IMF had on individuals offending behavior/moral culpability); • The IMF of an offender means sentencing is unlikely to be persuasive in deterring others; • Sentencing should not be used for general deterrence where it would be unjust to do so in light of the IMF and the community’s needs. • Consideration is required in regard to whether an individual is an appropriate medium for setting an example to others. • More difficult the further one moves from ‘serious psychiatric illness not amounting to insanity’ toward IMF advanced by the average offender.

15. General Deterrence– Case Example – • Assessor should inform court as to how individual differs from ‘average offender’ • Verdins has narrowed the gap between the symptom profiles of the ‘average offender’ and those deemed to have IMF

16. Specific Deterrence– Verdins Principle 4 – • IMF (at the time of offence, and point of sentencing) may mitigate sentencing in relation to the need for Specific Deterrence in several scenarios: • offender presents with diminished moral culpability; • imprisonment would weigh more heavily on them than on others; • individual displays an impaired capacity to learn from the court’s pronouncements; • the individual is unlikely to reoffend. • Highlights a degree of principle dependency. • Situations where no mitigation results are more individualistic: “Offence was premeditated; IMF aggravated by drug use, and they knew the likely consequences of using drugs; offender failed to seek medical help at the onset of IMF, despite knowing the risks of failing to do so; offender appreciated the gravity of offence and likely consequences; offender’s IMF was self-induced”

17. Specific Deterrence– Case Example – • As with general deterrence, assessor’s role is restricted • Inform court about unique characteristics of individual and their IMF that would: • Limit their potential for further offending • Limit their ability to desist from further offending • Reduce their capacity to learn from the court’s attempt to dissuade them from reoffending through specific deterrence

18. Custodial Mental Health in Victoria– Where Are We Now – “nearly one third of Victoria’s male prisoners have diagnosed mental health conditions... the level of mental health services available for the male prison population is grossly inadequate” (Victorian Ombudsman, 2011, p. 19). • Lack of clinical breadth in service provision; both assessment & intervening under a restrictive medical model of psychiatry. • Tsiaras ‘serious psychiatric illness not amounting to insanity.’ • Focus mainly on major mental illness (That is, psychotic disorders). • Under-estimation of those with mental health needs; especially as defined by Verdins & IMF. • Complexity of custodial healthcare • Fractured approach – intra-/inter- agency politics • Competing ideologies – risk/management vs. recovery/enhancement

19. Custodial Mental Health in Victoria– Where Are We Now – • Correctional mental health provides a critical and effective (albeit overstretched) service at the severe end of the spectrum • Services come at the expense of the majority of mental health conditions recognised by Verdins; • particularly in relation to management within custodial environments. • Evidenced in the 2011 Ombudsman’s report. • minimal consideration of roles of occupational therapy, psychology, and social work in assessment, treatment and management of mental health; as discrete from Offending Behaviour Programs run by Corrections. “capacity to respond to the specific needs of prisoners with less serious mental illness or ABI, or culturally and linguistically diverse (CALD) and Koori prisoners is limited” (Department of Justice, 2010, p. 45).

20. Custodial Mental Health in Victoria– Verdins Applied – • Understanding the current system is critical to providing defensible opinion regarding the nature/availability of services. • the Marlborough Unit at Port Phillip Prison - 35-bed IDS unit. • recent Department of Justice initiative, to ensure that new correctional staff receive training around suicide and self-harm. • the role of the “specialist mental health nursing hours” whose role is reportedly “conducting assessments of offenders who present at risk of suicide or self harm.” • St Pauls unit - 32-bed psychosocial rehabilitation unit. • Importance of relevant knowledge about current limitations, in order to comment on realistic care-pathways for IMF offenders. • Verdins holds; if no causal link is established, sentence mitigation shifts to those aspects of IMF that exist at the time of sentencing, or will potentially exist while undergoing sentence.

21. Burden of Imprisonment– Verdins Principle 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” • mitigation only follows if the likely burden exceeds that experienced by an average offender in the confines of prison. • the mere presence of a psychiatric condition will not, without evidence, establish imprisonment will present a greater burden. • depend on the nature and severity of the condition, and its likely effect on the offender’s experience of imprisonment. • Sentence mitigation has applied to increased burden from a range of conditions; the majority meeting diagnostic criteria. • Minimal attention for IMF falling short of formal diagnosis. • Other factors taken into account include: • Need for seclusion cells; need for specialised units (ID, AAU); social/cultural isolation/alienation due to IMF; difficulty managing offender’s condition in custody; need for differential circumstances of imprisonment; need to stay at MAP for appropriate treatment of IMF.

22. Effect of Imprisonment– Verdins Principle 6 – Mitigation flows if “there is a serious risk of imprisonment having a significant adverse effect on an individual’s mental health.” • Little discussion around what constitutes ‘a serious risk’ • Has considered the history of the IMF; likelihood of receiving intervention whilst incarcerated; likely effectiveness of treatment. • Little discussion on what constitutes ‘significant adverse effect’ • Deterioration must be greater than that experienced by the average prisoner as a result of imprisonment. • Principle is often considered inversely • No reduction where condition worsens after incarceration, but improves through involuntary treatment; where deterioration occurs but an individual is likely to receive effective treatment at the point of decline. • Reduction flows if the prison management regime (to ensure safety) is likely to adversely contribute to an offenders health.

23. Prison Mental Health – Case Example – Upon reception into custody of a remand prisoner, the individual is not seen to present with suicidal or homicidal ideation (which if present, might lead to a placement within a Muirhead cell in former case, or a management cell in the later case; with both environments requiring an individual to be locked in a single cell for at least 22 hours per day) although they inform the recepting psychiatric nurse that they experience persistent auditory hallucinations; despite having no apparent previous contact with mental health services. • Substance use/intoxication or medication ruse. • Underlying psychotic process. • Known, suspected intellectual disability, acquired brain injury, or PDD underlying psychotic process. • Other IMF not of ‘serious psychiatric illness not amounting to insanity,’ (personality pathology/disorder, trauma sequelae, grief, stress)

24. Prison Mental Health – Case Example – • Inappropriateness of simply formulating a best or worst case scenario. • Unacceptable to merely comment on the services or conditions that are required to mitigate, or otherwise, the burden and effect of imprisonment. • Report on the likelihood of being placed in/exposed to such situations (good and/or bad) • Likely mental health consequences for the individual in light of IMF. • Without incorporating environmental/resource constraints, courts can’t assess ‘foreseeable recurrence;’ or likelihood prison would be more burdensome; or could have ‘a significant adverse effect.’

25. Conclusion • R v Verdins, Buckley and Vo [2007] has reshaped the sentencing landscape in Victoria • Impaired Mental Functioning has expanded those situations where mental health can impact on sentencing. • Understanding the salient aspects of Verdins, both in terms of moral culpability and correctional mental health service provision is critical for forensic assessors. • Forensic assessors providing pre-sentence reports under the Sentencing Act 1991 (Vic) should furnish the Court with a comprehensive case formulation that encapsulates the Verdins Principles in their entirety. Parts of this presentation were taken form: Gee, D. & Ogloff, J. (in progress). Sentencing Offenders with Impaired Mental Functioning: R v Verdins, Beckley and Vo [2007] at the Clinical Coalface.