Verdins’ Sentencing Submissions – Common Challenges

Well-crafted Verdins submissions can, where appropriately supported by evidence, mean the difference between a custodial sentence and a community-based order. The Verdins principles recognise the impacts of a person’s mental health conditions which may significantly mitigate the sentence imposed. The effectiveness of targeted pre-sentence psychological or psychiatric reports (‘PSRs’) which evidence a defendant’s mental conditions should, therefore, not be underestimated.

This article explores the application of Verdins principles, how to obtain and assess effective PSR evidence, and highlights some key considerations for crafting persuasive Verdins submissions.

Verdins principles

The Victorian case of Verdins[1]  has been adopted and applied in Queensland for well over a decade. Example cases include Goodger, Yarwood, and more recently Colegate.[2] In addition to common law recognition, the Verdins factors are broadly reflected in the sentencing principles contained in s 9 of the Penalties and Sentences Act 1992 (Qld)(‘PSA’), including: ss 9(2)(d) concerning culpability for the offending, (f) the offender’s character and intellectual capacity, (fa) any hardship that may result from a sentence, (g) any aggravating or mitigating circumstance, and (r) any other relevant circumstance.

The Verdins principles recognise that ‘impaired mental functioning’ whether ‘temporary or permanent’ is relevant to sentencing in the following ways:

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

2. The condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served.

3. Whether general deterrence was to be moderated or eliminated as a sentencing consideration depended 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 was to be moderated or eliminated as a sentencing consideration likewise depended 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 sentence or both.

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

6. Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.’

What is sometimes missed, however, is that each of these six principles is a distinct consideration. Contrary to the perception of some within the profession, it is not a threshold requirement to demonstrate a direct causal link between the condition and the offending. Such a connection is only required if making a submission under principles 1, 4, and in some cases 3. Meanwhile, Verdins is no less applicable to a defendant who may simply, for example, face greater hardship in custody due to a mental health condition which has no contributory connection to their offending behaviour. That was the case in Colegate, where evidence of the defendant’s brain injury only impacted the hardship of custody, not his culpability for the offending itself.[3]

When making submission as to the applicability of Verdins it is therefore critical to expressly identify which of these principles is enlivened by the defendant’s condition/s and how these condition/s ought to mitigate the sentence that would otherwise be imposed.

What conditions enliven Verdins

The Verdins principles are not limited to cases of ‘serious psychiatric illness’, but apply where there is a ‘mental disorder or abnormality or an impairment of mental function.’[4] Relevant conditions include: traumatic brain injury,[5] schizophrenia,[6] Foetal Alcohol Syndrome (‘FASD’), ADHD (‘Attention Deficit Hyperactivity Disorder’),[7] Autism, PTSD (‘Post-Traumatic Stress Disorder’),[8] and other psychological conditions like depression and anxiety.[9]

Notably, a personality disorder is not precluded from enlivening the Verdins principles.[10] The Victorian Court of Appeal in Verdins expressed ‘It is not appropriate…to be prescriptive…nor is it possible to be exhaustive [about the conditions which may attract the Verdins principles].’  As his Honour, Henry J more recently explained in R v Waters (2023) 15 QR 73 (Bowskill CJ and Morrison JA agreeing): ‘impaired mental functioning’ [is] an apparent acknowledgement that it is the effect of the impairment, not the diagnostic label it attracts, which is relevant.’[11]In determining the applicability of Verdins, the primary question is therefore whether the condition has a bearing on the culpability, criminality, or impact of punishment on the defendant.

Considerations before making Verdins submissions

While an attractive argument for mitigation, submissions on the basis of Verdins must be approached carefully.

First, evidence of a mental health condition must be capable of supporting the submission. When seeking a PSR, questions directed to the report-writer should include those relevant to the Verdins principles. For example, asking whether, in the report-writer’s professional opinion:

• whether any of the diagnosed conditions caused or contributed to the offending? If so, to what extent?
• what impact, if any, would a period of imprisonment have on the defendant’s mental health conditions?
• whether appropriate treatment for or management of the mental health conditions is likely to be possible in a prison setting?

A PSR which cites mental health conditions but does not address Verdins considerations is at risk of attracting criticism. In Goodger, Keane JA (Fraser JJA and Atkinson J agreeing) in dismissing an appeal against sentence commented:

‘The learned sentencing judge was entitled to treat Dr Flanagan’s report as having little claim on his discretion. As to the nature and extent of the role played by the applicant’s depression in her offending, Dr Flanagan’s report is, if I may say so respectfully, not compelling… it is not evident from Dr Flanagan’s report how the applicant’s depression could have contributed to her fraudulent conduct. As a matter of ordinary human experience one can say that those who suffer depression are not known to be given to defrauding their employers.’[12]

If a Verdins-absent PSR is obtained prior to your involvement in the matter, you should request your instructing solicitor ask the report-writer to clarify these matters. Generally, report writers are willing to provide an updated opinion or amended report. The inclusion of expert opinion clearly linked to Verdins considerations provides you with the evidence to support your submissions and ultimately enhances the persuasiveness of your arguments.

When reviewing PSRs, you should also check that the report-writer is appropriately qualified to opine or make diagnoses relevant to the Verdins principles. Clinical Psychologists, for example, may be qualified to diagnose PTSD (Post-Traumatic Stress Disorder), personality or conduct disorders. However, for a condition such as schizophrenia, a psychiatrist would be the appropriately qualified person to make a diagnosis. By identifying a report-writer’s qualifications for the Court, this can strengthen the weight of the expert’s opinion evidence contained in the PSR.

Second, once appropriate evidence has been gathered, beware that Verdins can be viewed as a double-edged-sword. This is particularly so particularly where the condition is said to have affected the defendant’s offending behaviour. On the one side of the blade, the defendant’s condition mitigates their culpability for the offending, but on the other, their condition may equally indicate a higher risk of re-offending. While deterrence may pale in this context, community safety becomes a prominent consideration.

To strengthen your submissions here, you should consider if there is evidence that the defendant is or will receive treatment to manage their conditions. Such evidence can reduce the negative side of Verdins considerations by demonstrating the risk of re-offending is being ameliorated. The approach here is similar to how you might approach evidence reducing risk in a bail application. Ongoing engagement with a psychologist or psychiatrist, behavioural therapies, medication and, in some cases NDIS supports, can all

Lastly, understand that Verdins submissions are more complex where substance abuse occurs alongside the mental health condition/s (which is, sadly, common). Voluntary intoxication is, of course, not a mitigating factor at sentence (see s 9(9A) of the PSA). In circumstances involving mental health and voluntary intoxication, the Court may find the mitigation offered by Verdins is limited. This will be a matter of weight.

Ultimately, utilising Verdins principles in submissions can be effective in establishing reasons the Court should mitigate a defendant’s sentence. By thinking critically in advance of a sentence about the appropriate evidence and the operation of the Verdins principles, common pitfalls can be avoided and the submissions made as persuasive as possible.

[1] R v Verdins; R v Buckley; R v Vo [2007] VCA 102 (Verdins) at [5]-[8].

[2] See, eg, R v Goodger [2009] QCA 377 (Goodger) at [21]; R v Colegate [2022] QCA 148 (Colegate).

[3] At 5-6.

[4] R v Yarwood [2011] QCA 367 (Yarwood) at [25]-[26], citing Verdins and its application in R v Goodger [2009] QCA 377.

[5] See, eg, Colegate at 3.

[6] R v Andrews [2012] QCA 266, [30], [34]-[36].

[7] See, eg, R v OAB [2024] 51 at [8]-[10], [17]-[19].

[8] Yarwood at [27]-[28], [30], [34].

[9] Yarwood at [27]-[28], [30]-[31], [34].

[10] R v Waters (2023) 15 QR 73 at [55]-[59].

[11] Ibid at [1]-[2], [55].

[12] At [22].