Brown v The Queen
[2020] VSCA 212
•25 August 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0043
| DAYLIA BROWN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NIALL, T FORREST, EMERTON and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 May 2020 |
| DATE OF ORDERS: | 14 May 2020 |
| DATE OF JUDGMENT: | 25 August 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 212 |
| JUDGMENT APPEALED FROM: | [2020] VCC 196 (Judge Taft) |
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CRIMINAL LAW – Appeal – Sentence – Impairment of mental functioning – Personality disorder – Arson (4 charges) – Fires in department stores – House destroyed – Sentenced to 18 months’ imprisonment – Diagnosis of severe personality disorder with detachment and borderline pattern – Causal connection between condition and offending – Whether Verdins principles applicable – Judge constrained by DPP v O’Neill (2015) VR 395 – Verdins not applied – Judge would otherwise have materially reduced sentence – Expert evidence – Crown concession – Categorical exclusion of personality disorders not sustainable – Applicability of Verdins depends on expert evidence in individual case – Offender’s moral culpability reduced – General and specific deterrence moderated – No further incarceration justified – Community protection and rehabilitation best served by supervised release – Appeal allowed – Resentenced to 507 days’ imprisonment.
EVIDENCE – Expert evidence – Evidence-based decision-making – Mental disorders – Sentencing hearings – Whether offender’s mental functioning impaired – Impact of mental disorder at time of offending and/or sentence – Expert reports must comply with Practice Note – Duty of legal practitioners to ensure compliance – Practice Note SC CR 7: Sentencing Hearings: Expert Reports on Mental Functioning of Offenders.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Marsh | Victoria Legal Aid |
| For the Respondent | Ms D Piekusis QC with Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA
T FORREST JA
EMERTON JA
OSBORN JA:
Summary
The applicant (‘DB’) pleaded guilty to four charges of arson. The first three charges concerned the lighting of fires in a department store and two supermarkets in Melbourne, over the course of several hours on 18 December 2018. The fourth charge involved much more serious offending. DB set fire to a house in which she had previously lived, as a result of which the property was destroyed.
Expert evidence presented to the sentencing judge established that DB was suffering — at the time of the offending and at the time of sentence — from a severe personality disorder. In the opinion of the defence expert, Dr Andrew Carroll, a consultant forensic psychiatrist, DB’s personality disorder constituted an impairment of her mental functioning and had ‘strong causal links to the offending’.[1] The judge accepted that evidence, which was not challenged.
[1]DPP v Daylia Brown [2020] VCC 196, [89] (‘Reasons’).
A critical question which his Honour had to determine was whether DB’s personality disorder engaged the principles enunciated by this Court in R v Verdins.[2] His Honour considered himself bound by the Court’s subsequent decision in Director of Public Prosecutions v O’Neill[3] to hold that the Verdins principles were not engaged. But for that constraint, his Honour said, he would have given ‘very considerable weight’ to the Verdins considerations, which would have ‘materially reduced the sentence to be imposed’.[4]
[2](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[3](2015) 47 VR 395; [2015] VSCA 325 (‘O’Neill’).
[4]Reasons [109].
DB sought leave to appeal to this Court. Her principal contention was that, if the judge was right to regard the decision in O’Neill as standing for ‘the broad proposition that personality disorders do not enliven Verdins principles’, this Court should hold that O’Neill was wrongly decided. Given the challenge to the correctness of that decision, a five member bench of the court was convened.
In the event, the Director of Public Prosecutions conceded in her written case that, in view of the expert evidence led before the judge, a blanket exclusion of personality disorders from the Verdins framework could not be sustained. The Director agreed with the submission for DB, that the approach laid down in Verdins should apply to personality disorders as to other conditions. That is, whether an offender’s personality disorder engaged any of the Verdins principles should depend not on the particular diagnostic label attached to it but on what the expert evidence before the sentencing court showed about how the condition affected the offender’s mental functioning at the time of the offending and/or about how it would affect the offender in the future.
After hearing argument, we concluded that both the applicant’s submission and the Director’s concession should be accepted. An offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins. Statements to the contrary in O’Neill should no longer be followed. Whether and to what extent the offender’s mental functioning is (or was) relevantly impaired should be determined on the basis of expert evidence rigorously scrutinised by the sentencing court.
Given that conclusion, and having regard to what the judge had said about the sentence he would have imposed but for the constraint of O’Neill, we made orders granting leave to appeal, allowing the appeal and resentencing DB to a term of imprisonment slightly in excess of time served, to enable arrangements to be made for her to be released into supervised accommodation. We said that we would publish our reasons for those orders in due course. These are those reasons.
We wish to record our appreciation of the very constructive way in which this important question has been brought forward for this Court’s consideration. Recognising the significance of the issue for many of the people it represents, Victoria Legal Aid retained Dr Carroll to give evidence on the plea, both as to DB’s personality disorder and as to the nature of personality disorders more generally. The Director, for her part, took up the sentencing judge’s suggestion of retaining another eminent expert in the field, Professor James Ogloff, a clinical and forensic psychologist, to give additional evidence on the plea. As a result, both the sentencing judge and this Court on appeal have had the assistance of expert evidence of the highest quality, an advantage not enjoyed by the Court in O’Neill.
Special mention must be made of the sentencing judge, his Honour Judge Taft, for his conscientious, rigorous and compassionate conduct of an unusually complex case. Aware that the case was intended to facilitate this Court’s reconsideration of O’Neill, his Honour not only encouraged the retention of a second expert but, at the outset, drew the attention of counsel to published material concerning the nature and classification of personality disorders. His Honour’s detailed analysis of the expert evidence, and of the authorities, has been of great assistance. Finally, his Honour gave this Court immediate notice of his decision in order to facilitate an early listing of the anticipated appeal.
Factual background
The first three charges of arson are broadly similar in nature: all involve the setting of fires on shelves or displays in stores in the Melbourne CBD within a short period of time on 18 December 2018.
The first offence was committed at approximately 9:30 pm on Tuesday, 18 December 2018, when DB attended a Target store in Bourke Street. There, she lit two fires, one in a display of picnic rugs and the other in a display of cosmetic bags. The first fire was extinguished by store staff, the second by Metropolitan Fire Brigade personnel. Shortly after, DB attended a Coles supermarket in Elizabeth Street, where she set a fire among female sanitary products by throwing a match into the products and walking away. The fire was extinguished by store staff. This was the subject of charge 2.
Within minutes, DB attended a third store, Woolworths. There, she selected some toilet paper and walked to an aisle containing baby products, where she set fire to the toilet paper. She then left the store. Staff later noticed the burned toilet roll. This conduct gave rise to charge 3. On all occasions, DB’s activities were captured on CCTV cameras, from which she was able to be identified.
DB was approached and arrested a short time later by Protective Service Officers at Flinders Street station. She resisted the arrest and kicked out at one officer, striking her in the shin. This gave rise to certain summary charges, which were uplifted and dealt with together with the arson charges.
On arrest, DB was deemed unfit for interview and was transported to the Royal Melbourne Hospital to be examined pursuant to s 351 of the Mental Health Act 2014. She was then transferred to the Orygen Youth Health Psychiatric Unit, where she told a consultant psychiatrist that she had wanted to set fire to something so that she could go to Youth Justice or prison.
Over the coming days, DB repeatedly told staff that she felt that she did not belong in the world, wanted to be gaoled, and wanted to set fire to the QV building so that she could be taken to prison. Nevertheless, on 24 December 2018 she was discharged to her supported accommodation unit in Brunswick under supervision from a mental health organisation.
In the early hours of Saturday, 29 December 2018, DB attended at a former residence in Flemington Road, Travancore. She had left this property on 12 December 2018. She gained entry to the premises by smashing a window and once inside set fires in the ceiling insulation and bedding. The property was destroyed. This gave rise to charge 4.
DB was located within 700 metres of the property by police. She told arresting officers that she had just set fire to a house using a lighter to ignite a mattress. She was arrested and taken to the Melbourne Custody Centre.
The sentencing judge accepted that the first three charges represented ‘relatively lower end’ examples of the offence of arson. He described the fourth charge as ‘altogether more serious’, while noting that the fire had posed no direct or immediate danger to the public. His Honour accepted that DB’s motivation for all of the offending was to be detected and remanded in custody, with the ultimate aim of being returned to the Melbourne Youth Justice Centre in Parkville, a place to which she was emotionally attached.
DB was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1. Arson 15 years 3 months 1 month 2. Arson 15 years 3 months 1 month 3. Arson 15 years 3 months 1 month 4. Arson (house) 15 years 15 months Base Uplifted Assault emergency worker 5 years 7 days Concurrent Uplifted Resist emergency worker 5 years 7 days Concurrent Uplifted Bring article into prison (razor blade) 2 years 14 days Concurrent Total Effective Sentence: 18 months Non-Parole Period: None set Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 430 days 6AAA Statement: No 6AAA declaration made. In refusing to make a declaration, the judge stated ‘I am unable to indicate the sentence that would have been imposed if Ms Brown had not pleaded guilty. In part that sentence would depend upon the reception of expert evidence that might assist the Court in understanding why she had run a trial in the face of such strong evidence against her.’ Other relevant orders: Disposal Order The decisions in Verdins and O’Neill
In Verdins, this Court reformulated, and extended, principles first gathered together in R v Tsiaras,[5] one of the earliest decisions of the Court of Appeal. In Verdins, the Court said that impaired mental functioning, whether temporary or permanent (‘the condition’), was relevant to sentencing in at least six ways, as follows:
[5][1996] 1 VR 398, 400; [1996] VicRp 26 (Charles, Callaway JJA and Vincent AJA).
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.[6]
[6]Verdins (2007) 16 VR 269, 276 [32]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA).
A point of particular emphasis in Verdins was that the sentencing court should not be concerned with diagnostic labels which, by themselves, could provide no assistance in assessing the impact of the relevant condition on the offender at the relevant time(s). Instead, the court’s assessment should depend upon, and be informed by, what the expert evidence showed.
The Court said:
The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.
…
Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances — that is, at the time of the offending or in the lead-up to it — or is likely to affect him/her in the future.[7]
[7]Ibid 271–2 [8], [13].
In O’Neill, the offender was diagnosed as suffering from a ‘dependent personality disorder with prominent features of narcissistic personality disorder’.[8] The Court said:
While the Court in Verdins regarded the particular diagnostic label as not being determinative, the principles expressed have always been confined to cases in which the offender suffered an impairment of his or her mental functioning. They do not apply to personality disorders such as those from which the respondent suffered.[9]
[8](2015) 47 VR 395, 402 [29]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA).
[9]Ibid 413 [71].
Their Honours then set out the following passage from the decision of the Queensland Court of Appeal in R v Hayes[10] in which, their Honours said, the Queensland Court ‘was addressing this very issue’:[11]
There is no substance in the submission the applicant’s borderline personality was not taken into account in determining the appropriate sentence. It was irrelevant. A prisoner’s mental illness which reduces her capacity for judgment or understanding, or ability to control behaviour, and therefore reduces the moral blameworthiness in the offending is rightly regarded as an important mitigating factor in the sentencing process. It is my understanding that the law has never regarded personality disorders as having this effect. This is for the reason that they are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it. A personality disorder is a description of a personality type, or the traits which define the person and the person’s predominant modes of behaviour. The personality type becomes a disorder when the traits become manifest in behaviour which ‘deviates markedly from the expectations of the (person’s) culture’, and leads to ‘distress or impairment’. The passages are from DSM IV ...[12]
[10][2010] QCA 96 (‘Hayes’).
[11]O’Neill (2015) 47 VR 395, 413–14 [72]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA).
[12]Hayes [2010] QCA 96, [28] (Chesterman JA) (emphasis added). Note: ‘DSM–IV’ was the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. This handbook is used by health care professionals in the United States and much of the world as an authoritative guide to the diagnosis of mental disorders. The fifth edition, published in 2013, remains current at the time of this decision.
The Court in O’Neill went on to explain its conclusion that the Verdins principles were not enlivened. The opinion of the defence expert did not
include any evidence that the respondent suffered from an impairment of mental functioning. He did not opine that the respondent was unable to appreciate the wrongfulness of his conduct or exercise appropriate judgment or make a rational choice, or, alternatively, how the respondent’s personality disorder might have obscured his intention to commit the offence of murder. The respondent did not establish on the balance of probabilities that he suffered from a mental impairment. As we have said, it is well settled that Verdins principles are confined to impairment of mental functioning. The principles in Verdins do not extend to personality disorders such as those relied upon and which are set out in Section II of DSM–V.[[13]]
Accordingly, the respondent’s condition could not provide a basis for a moderation of the principles of general deterrence. That condition did not play any relevant role in diminishing the respondent’s capacity to understand the nature and gravity of his offending. It was not an impairment which required some moderation of general deterrence on the grounds that the respondent’s condition at the time of the offence or sentence rendered him unsuitable to be a vehicle for general deterrence.[14]
[13]The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders is known as ‘DSM–5’. This acronym will be used in the balance of these reasons.
[14](2015) 47 VR 395, 418 [85]–[86]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA) (emphasis added).
Since the decision in O’Neill, there has been a divergence of views as to how it should be interpreted. As characterised in the written case filed on behalf of DB, there is a ‘broad exclusionary interpretation’ that Verdins principles do not apply to any personality disorders; and a ‘narrow exclusionary interpretation’ that what was said in O’Neill applied only to the type of personality disorder from which the offender in that case suffered. The broad view was taken by Lasry J in R v Liao[15] and in R v Price,[16] and by the Court of Appeal in Di Paolo v The Queen.[17] The narrow view was taken by Coghlan JA in Director of Public Prosecutions v Bruno[18] and by Hollingworth J in Director of Public Prosecutions v Herrmann.[19] The judge in the present case considered the broad exclusionary interpretation to be the correct one.
[15][2015] VSC 730, [35] (Lasry J).
[16][2016] VSC 105, [78] (Lasry J).
[17][2019] VSCA 194, [110] (Priest, Niall JJA and Lasry AJA).
[18][2018] VSC 822, [39], [41] (Coghlan JA).
[19][2019] VSC 694, [81] (Hollingworth J). The decision is now on appeal.
As academic commentators have pointed out, the broad view derived support from the O’Neill Court’s seeming endorsement of the very general statement of the Queensland Court of Appeal in Hayes.[20] There was also the Court’s own statement in O’Neill (highlighted above) that the Verdins principles ‘do not extend to personality disorders such as those relied upon and which are set out in Section II of DSM–[5]’. That section of DSM–5 sets out the diagnostic criteria for the full range of mental disorders, and includes all of the recognised personality disorders.[21]
[20]See Jamie Walvisch and Andrew Carroll, ‘Sentencing offenders with personality disorders: a critical analysis of DPP (Vic) v O’Neill’ (2017) 41 Melbourne University Law Review 417, 426–27.
[21]American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, American Psychiatric Publishing, 2013).
It is unnecessary for present purposes to decide which of these interpretations is correct. As already indicated, we were satisfied on the basis of the expert evidence — as was the Director — that any categorical exclusion of personality disorders, whether of such disorders in general or of a particular type of personality disorder, could not be sustained. As we have said, it was the submission of both parties, and the view of both experts, that Verdins provided the appropriate framework for evaluating the relevance (if any) of such a condition to sentencing in a particular case.
Accordingly, the statements in O’Neill about the inapplicability of Verdins to personality disorders should no longer be followed. As we have emphasised, this Court has had the benefit of evidence given by two of Victoria’s foremost forensic mental health experts, assistance which was not available to the Court in O’Neill. Acceptance of that evidence also entails rejection of the statement in Hayes, referred to in O’Neill, that ‘personality disorders … are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it’.
The sentencing reasons
As noted earlier, the defence relied on the evidence of Dr Carroll, a consultant forensic psychiatrist. Dr Carroll had prepared a lengthy written report setting out his opinion on DB’s condition. He gave evidence on the plea, and was cross-examined.
As the judge noted, Dr Carroll diagnosed DB as ‘having a severe personality disorder with detachment and a borderline pattern’. His Honour’s reasons recorded Dr Carroll’s list of the particular features which DB displayed, as follows:
·a pervasive pattern of detachment from social relationships;
·a restricted range of expression of emotions in interpersonal settings;
·a tendency to solitary activities;
·little interest in sexual experiences;
·restricted ability to take pleasure in activities;
·an outward display of emotional coldness, detachment, and flattened affectivity;
·a pervasive pattern of social inhibition, feelings of inadequacy and hypersensitivity to negative evaluation;
·avoidance of activities that involve significant interpersonal contact because of fear of criticism;
·an unwillingness to be involved with people unless certain of being liked;
·a preoccupation with criticism and rejection in social situations;
·associated inhibition in interpersonal situations; and
·a view of herself as being socially inept and inferior to others.
His Honour further noted Dr Carroll’s opinion that DB displayed a number of features consistent with the ‘borderline pattern’ described in the 11th revision of the International Classification of Diseases for Mortality and Morbidity Statistics[22] (‘ICD-11’). Those features were as follows:
[22]World Health Organisation, International Classification of Diseases for Mortality and Morbidity Statistics (11th revision). ICD-11 is the international standard for systematic recording, reporting, analysis, interpretation and comparison of mortality and morbidity data. The 11th revision was adopted by the World Health Assembly in 2019, to come into effect from 2022.
·an unstable sense of self;
·impulsivity in areas including substance use and binge eating;
·recurrent suicidal behaviours and self-mutilation;
·mood instability;
·feelings of emptiness;
·difficulty controlling anger; and
·transient, stress-related, dissociative symptomatology.
Dr Carroll had been specifically asked about whether there was a link between DB’s condition and her offending. The conclusion in his report was that:
The motivating factors relating to her recent offending all relate to her severe personality disorder. There is a substantial causal link between her mental disorder and her offending.
In his report, Dr Carroll attributed the most serious of the arson offences to the following ‘longstanding factors’:
·her continuing to pine for a return to Parkville Youth Justice Centre — a place to which she continued to feel emotionally attached, as well as possibly a desire to reunite with friends who remain there;
·a longstanding sense of inadequacy with respect to facing adult levels of responsibility (stemming from her personality dysfunction): it is probably no coincidence that this most dramatic fire occurred a fortnight after she turned 18;
·her paradoxical insensitivity to the impact of her fire-setting behaviours on others — part of her ‘detached’ personality traits; and
·her having progressively learned that setting fires is, for her, an emotionally gratifying experience, associated with a rewarding sense of being able to exert control over a world that she finds frightening, threatening and alien as a result of her personality dysfunction.
At his Honour’s suggestion, Dr Carroll was asked in evidence to elaborate on his conclusion about the causal link by reference to what was said in Verdins about moral culpability.[23] As summarised in his Honour’s reasons, Dr Carroll considered that DB’s personality disorder:
·had a ‘very significant’ impact on her ability to exercise appropriate judgment, both in the sense that the offending behaviour was engaged to facilitate her return to custody, which itself was motivated by her lack of ability to integrate into society due to her disorder; and secondly, that she could not understand the impact of her fire-lighting behaviour ‘to the extent that a person without personality disorder would’;
·contributed to her making irrational choices, although there was no evidence that her thinking was disorganised or that she was not calm, consistent with an organised, delusional belief system;
·caused her to fail to experience the inhibitory mechanisms that most people would experience;
·prevented her from having any emotional awareness that the conduct was wrong on a ‘deeper moral level’, despite her understanding that her conduct was legally wrong (given her motivation for the behaviour was said to be for the purpose of being returned to custody); and
·contributed causally to the commission of these offences, as any causal explanation for her offending without reference to personality disorder would be ‘fatuous and empty’.[24]
[23]Verdins (2007) 16 VR 269, 275 [26]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA).
[24]Reasons [68].
As to the future, Dr Carroll considered that DB’s severe personality disorder would continue to affect her for the foreseeable future and that her condition would critically depend on how well she responded to treatment and supervision. In his opinion, her disorder ‘profoundly adversely affects her ability to cope with life’s demands, whether that be in the community, in adult custody or youth detention’.
According to Dr Carroll, the manifestations of DB’s severe personality disorder included ‘factors that are significant risk factors for re-offending of a similar nature, and also place her at a significantly elevated risk of interpersonal violence’. Nevertheless, despite her ‘now relatively enduring picture of a pattern of recurrent fire-setting’, Dr Carroll considered that there were reasonable prospects for DB’s rehabilitation. To achieve that goal, she would need ‘a long-term, intensive, tailor-made, bespoke rehabilitation plan both in custody and subsequently in the community’.
His Honour expressed his conclusion in these terms:
In my view, in addition [to the] relevance of Ms Brown’s age, without the restrictions I regard as imposed by O’Neill, I would give very considerable weight to Verdins considerations. The enlivening of Verdins would have materially reduced the sentence to be imposed. In particular I regard the pervasive intensity of her personality disorder as considerably reducing her moral culpability and the application of both general and specific deterrence. It is also relevant to the disposition imposed and to the need to provide accommodation and treatment within the community and to minimise the risk of institutionalising a teenage girl.
I acknowledge the relevance of protection of the community to the sentencing process and the justified concern about Ms Brown’s maladaptive response to her situation by lighting fires. This can best be achieved within the community by consistent support and a real level of supervision.[25]
[25]Reasons [109]–[110].
His Honour then addressed DB directly, as follows:
Can I speak to you briefly, Daylia. You need not stand. I rather doubt that there is anything I can say that will make you happier about your connection with the world or allow you to feel better about yourself. I wish I could. All I can do is give you an end date for your imprisonment and hope that the housing and supports that are in place will assist you in the future.
The effect of my sentence is that you will be released towards the end of June or thereabouts. By that date there will be housing and Jesuit Social Services will have a responsibility, along with other supports, to assist you. I very much hope that helps.
I am sure you understand how terrible it would be if innocent people got hurt or killed as a result of setting a building or a property alight. You must not do such things.[26]
[26]Reasons [120]–[122].
His Honour’s concluding remarks returned to the general question:
I am most sympathetic to the proposition that O’Neill should be looked at again.
In my view, the expert evidence in this case has been compelling and I would hope that in severe cases of personality disorder, where cogent evidence is produced which establishes both the disorder and the connection of that disorder to the offending, in future Verdins can be enlivened.[27]
[27]Reasons [123]–[124].
The nature of personality disorders
There are, as Dr Carroll explained in his evidence, two different approaches to the classification of personality disorders. The first is the so-called ‘categorical’ approach, under which personality disorders are classified into different categories — such as ‘borderline personality disorder’ — on the basis of diagnostic criteria. This is the approach taken in DSM–5, published by the American Psychiatric Association.
The other approach, which Dr Carroll himself used, is that laid down in ICD-11. This is known as the ‘dimensional’ approach. ICD-11 abolishes all type-specific categories of personality disorder. Instead, there is a single dimension of severity for all personality dysfunction, ranging from normal at one extreme through mild and moderate to severe personality disorder at the other extreme. The assessment of severity in a particular case can be accompanied by the identification of prominent personality traits — for example, the ‘borderline pattern descriptor’ which Dr Carroll applied to DB. The development of this classification is helpfully explained in one of the articles to which the judge drew the attention of the parties.[28]
[28]Peter Tyrer, Geoffrey Reed, Mike Crawford, ‘The Development of the ICD-11 Classification of Personality Disorders: An Amalgam of Science, Pragmatism, and Politics’ (2019) 15 Annual Review of Clinical Psychology 481.
ICD-11 describes ‘personality disorder’ in these terms:
Personality disorder is characterised by problems in functioning of aspects of the self (eg, identity, self-worth, accuracy of self-view, self-direction), and/or interpersonal dysfunction (eg, ability to develop and maintain close and mutually satisfying relationships, ability to understand others’ perspectives and to manage conflict in relationships) that have persisted over an extended period of time (eg, 2 years or more). The disturbance is manifest in patterns of cognition, emotional experience, emotional expression, and behaviour that are maladaptive (eg, inflexible or poorly regulated) and is manifest across a range of personal and social situations (ie, is not limited to specific relationships or social roles). The patterns of behaviour characterising the disturbance are not developmentally appropriate and cannot be explained primarily by social or cultural factors, including socio-political conflict. The disturbance is associated with substantial distress or significant impairment in personal, family, social, educational, occupational or other important areas of functioning.
As to the ‘detachment’ trait which Dr Carroll ascribed to DB, ICD-11 states:
The core feature of the Detachment trait domain is the tendency to maintain interpersonal distance (social detachment) and emotional distance (emotional detachment). Common manifestations of Detachment, not all of which may be present in a given individual at a given time, include: social detachment (avoidance of social interactions, lack of friendships, and avoidance of intimacy); and emotional detachment (reserve, aloofness, and limited emotional expression and experience).
As to the ‘borderline pattern descriptor’, ICD-11 states:
The Borderline pattern descriptor may be applied to individuals whose pattern of personality disturbance is characterised by a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity, as indicated by many of the following: Frantic efforts to avoid real or imagined abandonment; A pattern of unstable and intense interpersonal relationships; Identity disturbance, manifested in markedly and persistently unstable self-image or sense of self; A tendency to act rashly in states of high negative affect, leading to potentially self-damaging behaviours; Recurrent episodes of self-harm; Emotional instability due to marked reactivity of mood; Chronic feelings of emptiness; Inappropriate intense anger or difficulty controlling anger; Transient dissociative symptoms or psychotic-like features in situations of high affective arousal.
DSM–5 specifies the diagnostic criteria for ‘General Personality Disorder’ as follows:
A.An enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture. This pattern is manifested in two (or more) of the following areas:
1.Cognition (ie, ways of perceiving and interpreting self, other people, and events).
2.Affectivity (ie, the range, intensity, lability, and appropriateness of emotional response).
3. Interpersonal functioning.
4. Impulse control.
B.The enduring pattern is inflexible and pervasive across a broad range of personal and social situations.
C.The enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D.The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood.
E.The enduring pattern is not better explained as a manifestation or consequence of another mental disorder.
F.The enduring pattern is not attributable to the physiological effects of a substance (eg, a drug of abuse, a medication) or another medical condition (eg, head trauma).
Because the first criterion speaks of ‘an enduring pattern’, DSM–5 provides the following guide to diagnosis:
The diagnosis of personality disorders requires an evaluation of the individual’s long-term patterns of functioning, and the particular personality features must be evident by early adulthood. The personality traits that define these disorders must also be distinguished from characteristics that emerge in response to specific situational stressors or more transient mental states (eg, bipolar, depressive, or anxiety disorders; substance intoxication). The clinician should assess the stability of personality traits over time and across different situations. Although a single interview with the individual is sometimes sufficient for making the diagnosis, it is often necessary to conduct more than one interview and to space these over time.
In evidence before the judge, Dr Carroll was asked to compare a personality disorder with a major mental illness. He spoke first of the similarities, which he described as follows:
They are conditions that have an impact on the way a person thinks about themselves and about the world and particularly their interpersonal world.
They are conditions that affect how a person feels, so their emotions, their emotional regulation, what in legal terms is sometimes called a volitional functioning, and they are conditions that can impact on someone’s behaviour, so things like impulse control and interpersonal behaviour. That applies to mental health conditions broadly across the board, all of the mental disorders which are within DSM-5 or ICD-11 as diagnosed were mental disorders …
The other thing that is common to all conditions, it’s kind of by definition, is that there is a level of functional impairment, usually in terms of social or occupational functioning and/or a degree of significant distress.
The biggest difference between the two, in Dr Carroll’s opinion, was what he called ‘the longitudinal history’ of a personality disorder. A defining feature of a personality disorder was that it is enduring:
[I]t generally begins to become manifest in adolescence but it has no clear kind of date of onset and no clear date of offset, and classically it’s been thought that personality disorders are life-long and enduring.
He contrasted such a disorder with a ‘classical mental illness’ such as major depression or schizophrenia, where the date of onset could normally be dated with some degree of precision and where there is also ‘a sense that at some point it will resolve’.
Dr Carroll was at pains to emphasise that, as regards severity of impairment or severity of distress, there was no category distinction between a personality disorder and other mental health conditions. On the contrary, he said:
I think any experienced psychologist or psychiatrist would tell you that amongst the most distressed and impaired people that they have worked with over the years of their career they will be the people with serious personality disorder. It is certainly not the case that there’s some sort of continuum of impairment and distress which has personality disorder here and then further up the scale other conditions like schizophrenia or depression.
Asked about the decision in O’Neill, Dr Carroll said that he disagreed with the statement of the Queensland Court of Appeal in Hayes, apparently endorsed in O’Neill, that personality disorders ‘are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it’.[29] Dr Carroll acknowledged that disorders of perception such as hallucinations were not generally associated with personality disorder. But in the broader sense, he said, a personality disorder directly affected the sufferer’s perception of the world. In DB’s case, for example:
She perceives the world as a rather frightening [place], she perceives people in social situations as seeing her as automatically as an inferior person, she has certain quite profound biases in how she understands the world and how she perceives the world in general. She is avoidant of interpersonal contact for that reason. She retreats into her world because she finds the social world quite a frightening and intimidating place.
[29]Hayes [2010] QCA 96, [28] (Chesterman JA); O’Neill (2015) 47 VR 395, 414 [72]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA).
In Dr Carroll’s opinion, personality disorders should be assessed in accordance with the approach set out in Verdins. As he put it, ‘the starting point is that diagnosis is not the key. Impairment is the key’. In his view, DB was
at least probably more impaired in terms of her functioning and more distressed than most of the women with whom she is currently housed [in custody], many of whom will suffer with psychotic illnesses.
As mentioned earlier, Professor Ogloff is both a clinical psychologist and a forensic psychologist. He is the University Distinguished Professor of Forensic Behavioural Science, and Director of the Centre for Forensic Behavioural Science, at Swinburne University of Technology. He is also Executive Director of Psychological Services and Research at Forensicare. Professor Ogloff was called at the judge’s request to provide another opinion on the nature of personality disorders such as that from which DB suffers. (He was not asked to assess DB.)
Professor Ogloff expressed agreement with Dr Carroll’s views about personality disorders. He said that it was now accepted that ‘personality disorders really are extreme presentation of the dysfunction of personality characteristics’. In a sufferer, aspects of personality which might be seen in a normal presentation ‘are present in an exaggerated degree and in a way that causes impairment’. Professor Ogloff emphasised that a personality disorder ‘has to be inflexible and pervasive across situations and over time’:
Because a personality disorder generally is enduring long-term, although the severity can ebb and flow over time, then it’s very difficult to diagnose with just a cross sectional evaluation of an individual. … it does require a longitudinal perspective with information across a number of data sources, not just sitting down with somebody for a period of time.
Like Dr Carroll, Professor Ogloff rejected any distinction between a personality disorder and a mental illness on the basis of severity. In his view, it was ‘arbitrary to believe that either of a personality disorder or a clinical disorder would necessarily be more or less severe one than the other’. He went on:
because of the intractability of a lot of the features of personality disorder if I were ill I’d much rather have even schizophrenia usually than something like borderline personality disorder if it was severe just because of the impact it has on the individual and the individual’s behaviour in society.
As to the degree of impairment likely to be relevant to sentencing, Professor Ogloff expressed the view that
the bar needs to be set quite high. The presence of a disorder, whether it’s a clinical disorder or personality disorder, it has to be one that has some profound effect on the individual’s cognitive capacity and behaviour.
To assist the judge, he said, it was essential that there be ‘a rigorous investigation by the clinicians to determine the extent to which those things are present’.
Both Dr Carroll and Professor Ogloff were asked about anti-social personality disorder. Dr Carroll agreed that it was ‘quite circular’, and of little assistance to the court, to diagnose an offender as suffering from anti-social personality disorder simply on the basis of their persistent offending. A diagnosis of that kind was, Dr Carroll said,
purely based on behavioural criteria, on what [the offender has] done, without really very much in the way of psychological analysis as to the actual personality, the actual deficits in thinking and feeling that might underlie that.
Professor Ogloff’s evidence was to similar effect. Because anti-social personality disorder was ‘primarily defined by the behaviour’, it was typically excluded when legislatures made provision for personality disorders to be taken into account. A different approach was required with those disorders — such as narcissistic, anti-social, and obsessive — which were typically characterised not by cognitive deficits but almost solely by behavioural and impulse disturbances.
Reconsidering O’Neill
As noted at the outset, the Director conceded, in the light of the expert evidence led at first instance, that a blanket exclusion of personality disorders from the Verdins framework could not be sustained. The concession was set out in the Crown’s written case in these terms:
In view of this evidence, which was not available to the Court of Appeal in O’Neill, the respondent accepts that in some, limited circumstances, personality disorders may enliven the Verdins principles. This, however, in no way detracts from the correctness of what the Court of Appeal in O’Neill said about the need for rigorous analysis before it can be concluded that the Verdins principles are enlivened.[30]
[30]Emphasis in original.
This was, with respect, a most constructive position for the Director to adopt. The Director recognised, as this Court has now concluded, that in view of the strong and clear expert opinions provided, the law needed to change. In so doing we affirm one of the law’s most important aspirations, that decision-making should be evidence-based.[31]
[31]See R v Glennon (1992) 173 CLR 592, 603; [1992] HCA 16 (Mason CJ, Toohey J); Dupas v The Queen (2010) 241 CLR 237, 248–9 [29]; [2010] HCA 20 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); R v J-L J [2000] 2 SCR 600, [56] (Binnie J). See generally Andrew Ligertwood and Gary Edmond, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis Butterworths, 6th ed, 2017) [1.47]–[1.49].
Evidence-based decision-making is, of course, precisely what Verdins both authorises and requires. What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.
As the Court in O’Neill rightly emphasised:
Careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence.[32]
And, as the Court further said:
It has been the general experience of this Court that sentencing judges exercise great caution when considering whether Verdins principles have been enlivened. Judges give careful consideration to whether the material relied upon by the offender establishes the necessary basis for the application of the relevant Verdins principle relied upon. They give the issue the rigorous attention that it requires.[33]
[32](2015) 47 VR 395, 412 [68]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA).
[33]Ibid 416 [80].
It was common ground before this Court that, once the categorical exclusion of personality disorders was removed, exactly the same approach would be required — and could confidently be expected — of sentencing courts. The need for rigour applies with equal force, of course, to those legal representatives who commission, and those clinical experts who prepare, reports to be used at sentencing hearings.
Both the judge and Professor Ogloff lamented the deficiencies of many such reports. His Honour spoke of ‘the proliferation of rather deficient psychological reports in this court’. For his part, Professor Ogloff said that, while some reports were ‘fantastic and fine’, some were ‘absolutely shocking’.
We take this opportunity to draw attention, once again, to Practice Note SC CR 7, dealing with ‘Expert Reports on Mental Functioning of Offenders’.[34] The Practice Note was developed by the Forensic Evidence Working Group, comprising trial and appeal judges, forensic psychiatrists, forensic psychologists and legal practitioners (including representatives of the Office of Public Prosecutions, Victoria Legal Aid and the Criminal Bar Association).
[34]Supreme Court of Victoria, Practice Note SC CR 7: Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, 30 March 2017 (‘Practice Note’).
The Practice Note applies to sentencing hearings in both the Supreme and County Courts. Its stated purposes are:
a. to enhance the quality and reliability of expert evidence relied on in sentencing hearings in connection with questions of the mental functioning of persons who are to be sentenced.
b.to improve the utility of such evidence by ensuring that opinions expressed are within the scope of the expert’s specialised knowledge, and are supported by clearly-identified facts and reasoning.
Those preparing reports must familiarise themselves with the content of the Practice Note, and ensure that all applicable requirements are complied with. Defence practitioners should be aware that it is part of their duty to the court to ensure that a report tendered for this purpose complies with those requirements. And judges and prosecutors should be astute to insist on compliance.
Looking ahead, it would seem from the expert evidence that a personality disorder is likely to engage the Verdins principles only in a case of some severity. But, plainly enough, it is not for this Court to suggest any threshold level of severity which must be reached before those principles would become applicable. Senior counsel for the Director properly conceded that this was so.
Nor is it appropriate to say more about those categories of personality disorder (anti-social personality disorder and narcissistic personality disorder) about which the expert witnesses expressed scepticism.[35] As we have noted, their evidence was that the attachment of those diagnostic labels may be no more than descriptive of maladaptive behaviour and, hence, will provide no insight into an offender’s mental functioning. Whether in a particular case involving such a disorder the expert evidence establishes a clinically significant impairment of mental functioning will, of course, depend on the circumstances of the case and the nature and content of the expert opinion.
[35]See [57]–[58] above.
The need for community protection
As members of the Court pointed out during argument, a sentencing court’s acceptance that offending conduct is attributable to an impairment of mental functioning can affect the sentencing decision in divergent ways. On the one hand, the Court may be persuaded that the causal significance of the impairment is such as to lessen the offender’s moral culpability. On the other hand, especially if the impairment is permanent or likely to recur, that causal connection may point to a heightened need for community protection.
This point was made in Wright v The Queen, as follows:
[A] condition which attracts one or more of the principles restated in R v Verdins may also suggest a heightened risk of reoffending and hence direct attention to the need to protect the community. In other words, the same impairment of mental functioning will be productive of countervailing sentencing considerations, one tending to favour a shorter sentence, the other a longer sentence.
…
[T]he very aspects of JW’s mental functioning which were said to explain the offending — and to warrant a reduction in moral culpability — also suggested an increased risk of similar offences in the future and, hence, the need to treat protection of the community as a very significant consideration. A similar issue arose in Director of Public Prosecutions v Patterson, where intellectual disability was, on the one hand, said to reduce the offender’s culpability and, on the other, to increase the need for community protection. This Court described the sentencing exercise in such a case as one of particular difficulty.[36]
[36][2015] VSCA 333, [6], [57] (Maxwell P, Redlich and Osborn JJA) (citations omitted). See also DPP v Kemp [2015] VSCA 108, [48] (Whelan, Santamaria and Beach JJA) and DPP v Patterson [2009] VSCA 222, [50]–[51] (Maxwell P, Redlich JA and Vickery AJA).
Consideration of personality disorders, and of DB’s case in particular, brings this issue into sharp focus. Precisely because of the enduring character of a personality disorder, the issue of community protection is likely to arise frequently. The risk of reoffending will fall to be considered whenever the expert evidence establishes to the court’s satisfaction that the offender’s mental functioning was impaired at the time of the offending and that the offending was attributable to the impairment.
As noted earlier, Dr Carroll’s report acknowledged that the way DB’s personality disorder had manifested itself — in successive fire-lighting activities — meant that there were ‘significant risk factors’ for future similar offending and for interpersonal violence. His view, which the judge accepted, was that that risk was able to be managed and mitigated by appropriate supervision and treatment.
Sentencing courts must, of course, approach the question of community protection with some care. As this Court noted in Boulton v The Queen,[37] a sentence cannot be imposed or disproportionately lengthened merely for the purpose of protecting society. The governing principle is that of proportionality, which requires the sentencing court to ensure that the sentence imposed
should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.[38]
[37](2014) 46 VR 308, 327 [72]; [2014] VSCA 342 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (‘Boulton’).
[38]Ibid 325 [64].
At the same time, as the majority of the High Court said in Veen v The Queen [No 2], the purpose of protecting the community can properly be taken into account in fixing the sentence:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[39]
[39](1988) 164 CLR 465, 473; [1988] HCA 14 (Mason CJ, Brennan, Dawson and Toohey JJ).
Their Honours also acknowledged that
the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.[40]
They went on to emphasise that there was no opposition between the principle of proportionality and the imposition of a sentence which took into account the propensity of the offender — whether on account of mental illness or otherwise — to commit violent crime, and the consequent need to protect the community.[41]
[40]Ibid 474.
[41]Ibid 475; Boulton (2014) 46 VR 308, 326–7 [69]–[70]; [2014] VSCA 342 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
Disposition in the present case
The sentence imposed at first instance was due to expire on 29 June 2020. As noted earlier, the judge was concerned that, when released, DB should have appropriate accommodation which would ensure ‘consistent support and a real level of supervision’.
This Court was provided with an up-to-date report from Dr Anthony Barnes, a consultant forensic psychiatrist at Forensicare, who said that for a number of months there had been
dedicated planning for [DB’s] eventual release from prison via provision of an extensive Multiple and Complex Needs Individual (MACNI) support package that aims to establish and co-ordinate numerous services (including Jesuit Social Services, the Office of the Chief Psychiatrist and local AMHS[[42]] etc) and hopefully ameliorate some of the risks associated with her community reintegration. This process remains ongoing.
Upon her release, … it is anticipated that [DB] will reside in individual, purpose built (arson-protected) accommodation in Roxburgh Park, with a team of support workers available to engage with her on a daily basis. She will be referred to her local AMHS for intensive psychiatric case management …
[42]Area Mental Health Services.
As noted earlier, the Court concluded after hearing oral argument that the sentence should be set aside and DB resentenced on the basis of the judge’s findings, namely, that her impaired mental functioning materially reduced her moral culpability and the applicability of general deterrence.
The evidence of Dr Carroll established that DB had a pervasive and serious personality disorder that significantly impaired her judgment. It is well recognised that young offenders, being immature, are therefore ‘more prone to ill-considered or rash decisions’;[43] ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’;[44] and ‘may not fully appreciate the nature, seriousness and consequences of their criminal conduct’.[45] These factors, when combined with the value of rehabilitating young offenders, often justify a heavily moderated sentence.
[43]R v McGaffin[2010] SASCFC 22, [69] (White J).
[44]DPP v TY[No 3] (2007) 18 VR 241, 242 [43]; [2007] VSC 489 (Bell J).
[45]Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43, 53–4 [34]; [2011] VSCA 372 (Redlich JA, Coghlan and Macaulay AJJA).
DB was, by reason of her impaired mental functioning, in an entirely different position. Her impaired judgment was a function not of youth or immaturity, but of her longstanding, pervasive, personality disorder. The expert evidence established that she lacked the internal capacity to regulate her own conduct and was unable to form protective relationships.
These factors resulted in an unstable sense of self, impulsivity, recurrent suicidal behaviours and self-mutilation, and difficulty in controlling anger. On any reasonable assessment, the condition fundamentally impaired her ability to act rationally, regulate her conduct and fully understand the consequences. Given the causal link between her condition and these offences, her moral culpability was significantly reduced. Given the informing principle of the common law ‘that there should be a close correlation between moral culpability and legal responsibility’,[46] her reduced moral culpability had to find appropriate reflection in the sentence.
[46]Wilson v The Queen (1992) 174 CLR 313, 334; [1992] HCA 31 (Mason CJ, Toohey, Gaudron and McHugh JJ).
To the extent that specific deterrence is important to sentence, it must take as its starting point the capacity of the offender to moderate their behaviour. In DB’s case, the expert evidence showed the condition to be of very long standing. As we have noted, the length of time over which the condition is manifest is a defining feature of the diagnosis. Fortunately, there was, in the evidence, some scope for improvement depending on the availability of supportive treatment.
It was certainly not suggested that DB’s behaviour would respond positively to the harsh stimulus of incarceration. Indeed, DB engaged in conduct that was designed to return her to a custodial setting where she had experienced some supportive relationships. This evidence meant that specific deterrence needed to be moderated, and perhaps eliminated, in favour of a disposition that better accommodated rehabilitative support. Such a disposition would also serve the interests of community protection more effectively than a custodial order.
For similar reasons, as the judge noted, general deterrence also needed to be heavily moderated. Plainly, given the nature of DB’s condition and its causal connection with her offending, she was not ‘an appropriate medium for making an example to others’.[47]
[47]R v Mooney (Victorian Court of Criminal Appeal, Young CJ, Lush and Jenkinson JJ, 21 June 1978) 5 (Young CJ).
The evidence also established that DB would face significant problems as a result of her condition, ‘whether that be in the community, adult custody or youth detention’. This meant that Verdins 5 and 6 were not easily applied. The evidence did show that, in the compelling circumstances of this case, the best outcome for DB, and therefore for the community, depended on a supportive and tailored therapeutic environment. This meant, in the language of Verdins 2, that her condition had a direct ‘bearing on the kind of sentence that [should be] imposed and the conditions in which it should be served’.
The judge, bound by O’Neill, rightly held that without the ameliorating effect of the principles in Verdins a period of incarceration of 18 months was required. Given our conclusion that O’Neill should no longer be followed, we had to resentence the applicant, taking into account the impact of her condition and the fact that she had part served the sentence.
Given the seriousness of the offending and its escalation, protection of the community was a consideration of particular importance. As indicated earlier, we concluded that this purpose was best served by the therapeutic and familial supports which were in place in the community. Those supports would promote DB’s rehabilitation and reduce the risk of her re-offending. On that basis, we were satisfied that her incarceration should come to an end at the earliest practicable opportunity.
Those representing DB sought urgent advice about available accommodation and support. The Court was greatly assisted by prompt and informative responses from both Jesuit Social Services and Neami National. Once we were satisfied that appropriate arrangements were being put in place, we imposed a reduced custodial sentence of 507 days’ imprisonment, expiring on 18 May 2020.
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