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 with Ms A Wong
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Daylia Brown v The Queen [2020] VSCA 212
Case
[2020] VSCA 212
Decision Date
CaseChat Overview and Summary
In the matter of Brown v The Queen, the appellant was convicted of four counts of arson, resulting in significant damage to department stores and the destruction of a house. The case was heard in the Court of Appeal of Australia, which was tasked with reviewing the sentence imposed on the appellant.
The court faced the challenge of determining whether the principles established in Verdins should apply in this case, particularly given the appellant’s severe personality disorder. The Crown had conceded that the appellant’s moral culpability was reduced due to his condition, but the trial judge had felt constrained by the decision in DPP v O’Neill, leading to a sentence of 18 months’ imprisonment. The court had to decide whether the trial judge’s approach was correct and whether the categorical exclusion of personality disorders from the Verdins principles was sustainable.
The Court of Appeal found that the trial judge had not adequately applied the Verdins principles due to the Crown’s concession regarding the appellant’s reduced moral culpability. The court held that the applicability of Verdins depends on the expert evidence presented in each individual case. As the expert evidence indicated that the appellant’s personality disorder had a causal connection to his offending, the court determined that the trial judge would have materially reduced the sentence had he properly considered the expert evidence. Consequently, the appeal was allowed, and the appellant was resentenced to 507 days’ imprisonment, with the court emphasising that further incarceration was not justified and that supervised release best served community protection and rehabilitation.