Director of Public Prosecutions v Whyte
[2023] VSC 645
•14 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0146
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| CLIVE WHYTE | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2023 |
DATE OF SENTENCE: | 14 November 2023 |
CASE MAY BE CITED AS: | DPP v Whyte |
MEDIUM NEUTRAL CITATION: | [2023] VSC 645 |
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CRIMINAL LAW — Sentence — Murder — Convicted by jury — Offender stabbed victim multiple times in victim’s home — Offender highly intoxicated at time of offending — Offender diagnosed with alcohol use disorder (‘disorder’) — Relationship between disorder and offending — Whether disorder capable of enlivening Verdins and reducing moral culpability — Verdins not enlivened — Relationship between intoxication and moral culpability considered — Standard sentence offence — Minor and dated prior convictions — Older offender — Sentenced to 23 years’ imprisonment with a non‑parole period of 16 years and 4 months — Sentencing Act 1991 (Vic) ss 5A & 5B; The Queen v Verdins (2007) 16 VR 269; Morrison v The Queen [2012] VSCA 222; Director of Public Prosecutions v Grant [2013] VSC 53; R v Redenbach (1991) 52 A Crim R 95; Walters v The Queen [2013] VSCA 164.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson KC with Mr J Johnston (sentence) | Director of Public Prosecutions |
| For the Accused | Ms S Keating with Mr C Tom | Balmer & Associates |
HER HONOUR:
Introduction
Clive Whyte, you have been found guilty by a jury of the murder of Martin Bebbington. The maximum penalty for murder is life imprisonment.
The offending
It was conceded at trial that you had caused the death of Mr Bebbington by stabbing him multiple times. Your defence at trial was various. On your behalf it was argued that your actions were not deliberate; if they were deliberate, you did not intend to kill the deceased or cause him really serious injury; and, finally, if you did have either such intention, you were acting in self‑defence. The jury rejected all arguments and convicted you of murder. Consistent with their verdict, I am satisfied of the following facts.
In 2018, you moved to Alexandra and resided in a unit in Bayley Street. In April 2019, the deceased moved into a unit two doors down. You and he struck up a friendship. You both lived alone and battled alcoholism. You would often drink together, and frequently drank to excess.
On 6 December 2020, you commenced drinking during the day. By 6:30pm, you were observed by the local hotel manager to be intoxicated. You consumed one alcoholic drink before leaving the hotel. You then purchased a 10‑pack of Scotch and Coke and returned home, where you consumed the 10‑pack. At around 7:30pm, you were seen by a neighbour walking towards Mr Bebbington’s unit with a can in your hand. You spent most of the balance of the evening at Mr Bebbington’s unit drinking alcohol.[1] You both became very intoxicated.
[1]At some point it seems you returned to your unit to make pasta and garlic bread, but it is unclear when that occurred. Burnt garlic bread was found in your griller and a bowl of pasta and sauce was found in Mr Bebbington’s microwave. In any event, when and whether you returned to make pasta is of no relevance when sentencing you.
At around 1:00am, you and Mr Bebbington had a loud drunken argument. This was heard by a neighbour across the road who was familiar with Mr Bebbington’s voice. Mr Bebbington was slurring and the other voice, which was yours, sounded equally drunk. The neighbour could not make out what was being said.
The exact sequence of events on this night is unknown. At some time during the evening, there was some sort of physical altercation between you and Mr Bebbington. I am unable to conclude how, why or when it commenced. When police attended, you had a small laceration to your head which was bleeding and consistent with blunt force trauma. You sustained other very minor injuries on this night. You told the triple zero operator that Mr Bebbington had been ‘bashing’ you and ‘smashing’ your brains in, and you had retaliated. It is not clear when you sustained your head injury, or how proximate to the fatal stabbing any of your injuries were sustained. I am satisfied you received the head injury during some sort of physical fight between you and the deceased, however the nature of your injuries suggests it was of limited severity.
At around 1:30am, Mr Bebbington used his mobile phone to call triple zero and requested an ambulance. You were present at his unit when he did this. It is not entirely clear why Mr Bebbington requested an ambulance. Mr Bebbington complained to the operator that you kept kicking and punching him, and were trying to hold him down. You can be heard in the background calling Mr Bebbington a ‘fucking moron’. Mr Bebbington’s speech was slow and slurred and he sounded very intoxicated. The operator repeatedly tried to understand and confirm his address. While this was occurring, you picked up a large kitchen knife. Mr Bebbington can be heard saying, ‘I don’t know where he’s going, he’s got a knife with him’. Moments later he asked, ‘Are you going to stab me with that knife?’. These were likely his last words. He was then heard to scream loudly four times.
I am satisfied that at this point you stabbed or cut Mr Bebbington 11 times to his face, head, throat and chest. At the time you did this, Mr Bebbington presented no threat to you, nor was he behaving aggressively. Whatever earlier altercation had occurred was over, and he was simply on the phone trying to call for help.
It is unclear what occurred immediately after the stabbing. Mr Bebbington was found in his bedroom up against the door, which suggests he may have gone in there and shut the door in an attempt to escape from you. The knife you used was found on Mr Bebbington’s kitchen bench, stained with his blood. For approximately 24 minutes the triple zero operator tried in vain to rouse Mr Bebbington, until you finally picked up the phone. You immediately told the operator, ‘he’s dead meat’, and repeated that he was dead. A little later, you said you tried to save him but he would not stop bleeding and collapsed in the doorway.
I accept you were intoxicated when you spoke with the triple zero operator, but I do not accept that, at that point, you had no memory of what you had done. You knew Mr Bebbington was dead. You initially tried to say you were merely an observer and you had no idea what had happened. Later in the call, you said he was bashing you and you retaliated. You told the operator, ‘He’s fucking dead and I’m going to jail’. In my view, at this point you were aware that Mr Bebbington was dead because you had stabbed him. As the call progressed, you said that you did not know what had happened. You admitted that, ‘The way things look I killed my neighbour’. Your account became increasingly confused and you maintained that you had no idea what had happened.
Police arrived at around 3:10am, at which point you were sitting on the loungeroom floor in Mr Bebbington’s unit. You were still very intoxicated and bleeding from your head. You were interviewed at around 9:00am on the morning of 7 December. By this stage, you were sober and said you had no memory of what occurred the night before because you were so intoxicated. That remains your position.
Your counsel submitted that, because of your level of intoxication, I ought to hold a reasonable doubt about whether you intended to kill Mr Bebbington as opposed to causing him really serious injury. I observe at this point that the law does not recognise a hierarchy in the categories of malice required for the crime of murder. As the Court of Appeal has stated, the distinction between intent to kill and intent to cause really serious injury is a very fine one, and cannot inform the question of moral culpability in all cases.[2] Moral culpability will be determined by the nature of the killing, including the conduct of the accused, rather than the particular intent which accompanied the conduct.[3] It is not always necessary for a sentencing judge to decide which intention an offender held.[4]
[2]Walters v The Queen [2013] VSCA 164,[9] (per Coghlan JA, with whom Maxwell P agreed).
[3]Ibid [7].
[4]See, for example, DPP v McCartin [2023] VSC 193, [32] where Kaye JA considered there was ‘no relevant difference’ between an intention to kill and an intention to cause really serious injury when sentencing two co-offenders, one of whom had inflicted three forceful stab wounds to the upper body of the deceased, aided and encouraged by the other.
This was a savage assault with a weapon. The fatal stab wound was inflicted with at least moderate force and travelled 20–25 centimetres through the deceased’s chest. Given your level of intoxication, it seems unlikely that in such a state, you would have reasoned that you wanted to cause really serious injury to Mr Bebbington but not kill him. The nature of the attack itself also suggests you intended to kill him, given you inflicted 11 sharp force injuries in circumstances where Mr Bebbington presented no threat. It is possible you intended to cause really serious injury, but here, the distinction between intent to kill and intent to cause really serious injury is extremely fine. Each is a murderous intent; the former does not aggravate the offence, nor does the latter necessarily mean the offence is less serious. In my view, this is not a case where the distinction is of significance; it cannot be used to reduce your moral culpability, or make your crime less serious.
Victim impact
Mr Bebbington’s brother, son and mother all provided victim impact statements to the Court.
Martin Bebbington was almost 60 years old at the time he was murdered. His brother, David, wrote that he is confused as to why this happened, and feels it is unfair and undeserved. The hardest thing for him has been watching the way Martin’s death has devastated and consumed their mother.
Nathan, Martin’s son, has lost his father and his mate. Throughout his life, his dad never let him go, even when he pushed him away at times. They always kept in touch and, since Nathan has had his own children, they became closer. Martin loved being a grandfather. A few days after his death, Nathan felt that everything crashed down around him and he had to take time off work and seek professional help. He still misses his dad every day and will never forget him.
Mrs Bebbington, Martin’s mother, was in daily contact with her son. His death has left an enormous hole in her life. Martin’s loss has caused her great stress and ongoing sadness. She often cries and wishes with all her heart that she could change what happened and have him back.
It is clear that your crime has had a profound and devastating impact on Martin Bebbington’s family and they continue to mourn his loss.
Personal circumstances
You were born in Melbourne in 1958 and are now 65 years old. You were made a ward of the state at pre‑school age and raised in an orphanage in Thornbury. Apparently, both your parents were alcoholics and you were inadequately cared for. At age 16, you learned you had a twin sister who had died at birth. Much later, you met a maternal half‑brother but lost contact with him. Your basic needs were met in the orphanage and you deny any physical or sexual abuse. You attended school and had no real problems there. No one in your life took on a parental role, and you had friends but no best friends. Your uncle and aunt were kind to you and used to visit you, bringing with them your cousin, Carol. You lived with them for a few years, but after your uncle left, your aunt could not care for both you and your cousin, and you returned to the orphanage.
You left both school and the orphanage at age 16, and joined the army as a cook for two years. After that, you worked in the metal industry for approximately 20 years, including a decade at Sidchrome Tools. You met your wife when you were aged 18 and had two sons. Both your sons completed school and are married with their own families. You enjoyed being a father and raising your sons, taking them camping and fishing and doing everyday things like cooking them meals. Your older son remains supportive and visits you every two or three weeks in prison, but your younger son has had no contact with you due to the circumstances of this case. Your cousin Carol also remains supportive; she attended much of your trial and regularly visits you in prison.
In 1997, you suffered a workplace back injury that resulted in chronic pain. You worked on light duties for a time and received WorkCover payments. In 1999, you ceased employment and have been in receipt of a disability support pension ever since. It was around this time that your marriage broke up at your wife’s instigation. Your life unravelled at this point. You started to smoke cannabis again and smoked heavily. Your alcohol use escalated and you struggled with periods of depression, for which you were medicated at times. You continue to take anti‑depressant medication. You suffered a minor stroke in 2003.
You have a very limited and dated criminal history consisting of three prior appearances in the Magistrates’ Court. Your history reflects that you can be aggressive when drunk but it is limited to summary assaults and resisting arrest. In 2006, you received a community correction order for charges including assault police, drunk in a public place, and behaving in an offensive manner in a public place. That is your most recent prior conviction.
Two character references were tendered on your behalf. Mr and Mrs Lee provided a joint reference. Mr Lee met you in 1975 and Mrs Lee in 1979. They used to spend time with you, your ex‑wife and, later, your sons. They describe you as a kind‑hearted, gentle man with a good work ethic. After your back injury, you volunteered at a local library and an ‘op shop’. In their view, you are a good father and you are very proud of your sons. They witnessed you struggle after your wife left, and you were left feeling profoundly sad and lonely. Mr and Mrs Lee were shocked when they learned of the charge. They have never known you to show any violence or aggression, and they regard this crime as completely out of character. Your cousin Carol also provided a reference. She too described you as a good father and a generous, helpful person. She believes the end of your marriage marked the start of your downfall and you turned to alcohol. She has discussed the offending with you. You maintain that you cannot remember what occurred, but she describes you as very sorry and remorseful. You often become upset and cannot talk about what you did.
Psychological material
A report of Dr Andrew Carroll, consultant forensic psychiatrist, dated 27 April 2023 was tendered on your behalf. Dr Carroll also gave evidence on the plea. Dr Carroll diagnosed you with mild personality disorder, severe alcohol use disorder and recurrent major depressive disorder. The last of these is currently in full remission. Your alcohol use disorder is currently in remission due to the prison environment. In Dr Carroll’s opinion, alcohol use disorder is a psychiatric condition. He noted that given the complete absence of any first‑person account by you, it is difficult to comprehensively address the issue of possible connections between your psychiatric conditions and the offending.
In evidence, Dr Carroll said that having an alcoholic parent or parents significantly increases a person’s risk of becoming an alcoholic. He said that whilst you do not have a history of abuse, what is quite striking is the total absence of a parent or parent‑like adult in your life. In his opinion, you have struggled to form enduring, close interpersonal relationships, with the notable exception of your marriage. During those 16 years, you appear to have had a stable marriage and stable employment and done rather well in life. Since the breakdown of your marriage and the loss of work, you never really returned to healthy psychosocial functioning.
Based on the information available, Dr Carroll concluded, unsurprisingly, that you were probably heavily intoxicated at the time of the offence. Dr Carroll said that it was more likely than not that you were intoxicated to a degree that rendered you disinhibited and disposed you to be more aggressive than would otherwise have been the case at the time of this offending. It is probable that your judgment and self‑control were impaired. Your capacity for calm, rational decision making was also significantly impaired. He noted that based on your criminal history, you are not generally prone to violence. It was therefore his opinion that there is a realistic connection between your alcohol use disorder and this offending.
Dr Carroll said he would not describe alcohol use disorder as a mental illness, however it is a mental disorder. It causes suffering and it causes an impairment and he would ‘absolutely’ describe it as a psychiatric condition. He said personally, he would not use the term mental illness for alcohol use disorder, but plenty of psychiatrists would.
Based on the evidence of Dr Carroll, your counsel argued that Verdins[5] has application and your moral culpability is reduced. I do not accept that alcohol use disorder or alcohol intoxication are capable of giving rise to the application of Verdins. However, given my reasons for rejecting the submission are lengthy, I have set them out in an appendix to this sentence which I will not read. I have also dealt more generally with the question of your moral culpability and intoxication in that appendix.
[5]R v Verdins (2007) 16 VR 269 (‘Verdins’).
You have been intoxicated many times before and have no history of serious violence when drunk. I accept that your judgment and capacity for rational decision making were probably impaired. However, Mr Bebbington was unarmed and on the telephone; it is not entirely clear what it was that you were less able to calmly judge or rationally decide, in circumstances where you were still able to form murderous intent. Your increased aggression and impaired self-control both go some way to explaining your offending, and the evidence suggests you were angry with Mr Bebbington at the time, but your intoxication does not excuse your conduct or reduce your personal responsibility for your deliberate actions.
Your counsel also relied on your disadvantaged background as enlivening the principles in Bugmy.[6] The prosecution submitted that your background does not compare in scale or degree to that described in cases such as Bugmy and Marrah.[7] Notwithstanding that, they agree that your background must be taken into account when sentencing you today.
[6]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[7]Marrah v The Queen [2014] VSCA 119 (‘Marrah’).
In my view, the principles in Bugmy have no real application here. On the material I have, it seems that despite being made a ward of the state, you were not mistreated or abused. Your aunt, uncle and cousin remained in contact with you and you lived with them for a period. After leaving both the orphanage and school, your life progressed quite well. You were successfully employed, married for some 16 years and a good father to your sons. You were a productive, law‑abiding member of the community and this is all to your credit. It seems your life really unravelled in the very late 1990s following your workplace accident, the consequential loss of your employment and the breakdown of your marriage. It was after this that you commenced using cannabis heavily and drinking alcohol excessively. You have struggled with alcohol abuse ever since.
Other matters
You were remanded during the Covid‑19 pandemic and as a result, you entered the prison system at a time when conditions in custody were more difficult and restrictive. Prisoners were frequently locked down, and personal visits were periodically suspended or cancelled. Rehabilitative courses and programs were also restricted or suspended altogether. I accept this made prison more onerous and isolating, particularly given you are a first‑time prisoner. You also endured the stress and worry of contracting Covid‑19 in prison. I take all these matters into account by way of mitigation.
Your counsel submitted you have good prospects of rehabilitation. Dr Carroll stated that your problems with depression and anxiety have responded well to medication, and in his opinion, your overall risk of serious offending is low. Your counsel noted your absence of any serious criminal history and the fact that your alcohol abuse is capable of remedy. You have successfully completed a number of courses while on remand. In my view, with sobriety, your overall prospects of rehabilitation are good. Specific deterrence — that is, the need to deter you personally from reoffending — is not a significant sentencing purpose given your age, limited criminal history and Dr Carroll’s risk assessment.
You are 65 years old and while you could not be described as very elderly, you are nonetheless an older offender, and a term of imprisonment for such a serious offence will represent a significant portion of the rest of your life.[8] This consideration mitigates the sentence I would otherwise impose.
[8]R v Iles [2009] VSCA 197, [35] (Redlich JA).
Standard sentence
The standard sentence for murder is 25 years’ imprisonment.[9] The standard sentence is intended to represent the sentence for an offence ‘in the middle range of seriousness’, taking into account ‘only the objective factors affecting the relative seriousness of that offence’.[10] The standard sentence, like the maximum penalty, is one factor I must take into account.[11] I am obliged to disregard sentencing practices for murder that pre‑date the introduction of standard sentencing,[12] although the principles found in those cases remain of relevance.[13] When fixing a non‑parole period, I must fix a period of at least 70% of the head sentence, unless it is in the ‘interests of justice’ not to do so.[14]
[9]Crimes Act 1958 (Vic) s 3(2)(b).
[10]Sentencing Act 1991 (Vic) s 5A(1)(b) (‘The Act’). Pursuant to s 5A(3) of the Act, the ‘objective factors’ are to be determined (a) without reference to matters personal to a particular offender or class of offenders; and (b) wholly by reference to the nature of the offending.
[11]Clarke (a pseudonym) v The Queen [2022] VSCA 89, [27], citing McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).
[12]The Act s 5B(2)(b).
[13]Brown (2019) 59 VR 462, 464 [4].
[14]The Act s 11A(4)(b).
Nature and circumstances of the offence
Your crime was not planned or premeditated. It appears to have occurred spontaneously and in circumstances where you had become angry with Mr Bebbington. I accept there was some type of prior physical altercation between you both that preceded your offending. However, whatever had occurred was over. Your attack was brutal, as evidenced by the 11 knife wounds you inflicted to Mr Bebbington’s chest, face, head and throat. Mr Bebbington was in his own home, where he was entitled to feel safe. At the time you attacked him, he was on the telephone to triple zero and posed no threat to you. You used a weapon against an unarmed, intoxicated and vulnerable victim.
After the stabbing, you remained at the premises and waited for police to arrive. You did not attempt to dispose of the weapon. You were cooperative with the police throughout their dealings with you, and while you did not take responsibility, you did express regret and sadness for what had occurred. There is nothing in your post‑offence conduct that aggravates your offending, and of course you must not be punished for running a criminal trial.
The prosecution submitted that where a life has been taken, it is very difficult to place the seriousness of the offending on a scale or hierarchy. However, they submitted that in all the circumstances, this is a mid‑range example of the crime of murder.
Your counsel referred to a number of sentences[15]. She submitted certain of those sentences were for more serious examples of murder[16], but accepted there were also relevant differences[17] and of course, each case ultimately turns on its own facts. Your counsel also submitted that if intoxication is found to reduce your moral culpability, the offending falls below the ‘mid‑range’, and such a conclusion would ‘impact’ whether or not a non-parole period of less than 70% should be fixed.
[15]Counsel referred to DPP v Cross (No 2) [2023] VSC 40; DPP v Fairhall [2022] VSC 444; DPP v Ledlin [2022] VSC 826; DPP v McCartin [2023] VSC 193; DPP v Munn [2020] VSC 251; R v Margolis [2021] VSC 341; R v Wardlaw [2020] VSC 83; v Whybrow [2020] VSC 233.
[16]In particular, DPP v Cross (No 2) [2023] VSC 40; DPP v Fairhall [2022] VSC 444; DPP v Ledlin [2022] VSC 826; DPP v McCartin [2023] VSC 193 and R v Margolis [2021] VSC 341 were all said to be more serious examples of murder.
[17]For example, the accused in Ledlin was aged 19 at the time of offending, with a background of profound dysfunction and disadvantage. The offender in McCartin was in company, but the deceased had earlier acted in a provocative and aggressive manner, and the offender and co-offenders tried to persuade him to leave.
Given my finding that your intoxication does not reduce your moral culpability, I consider the prosecution’s submission to be a fair one. I also do not consider that it is in the interests of justice to fix a lesser non-parole period.
Overall, however, I have reached the conclusion that the sentence I impose should be less than the standard sentence for murder. This was a spontaneous crime committed when you were highly intoxicated and not thinking clearly. Your history demonstrates that you are not usually someone who is seriously violent when drunk. Your character references were written by people who have known you for a very long time, and they attest to a man who is generally kind and helpful. I have also taken into account your age. In particular, I take into account that any term of imprisonment will constitute a significant period of the remainder of your life, in circumstances where you have led a mostly blameless life until this crime.
Sentence
Murder is always a serious crime, and your intoxication is no excuse for what you did. Mr Bebbington’s family have been left devastated by his death. It is necessary to publicly denounce your crime, and impose a sentence that gives due weight to general deterrence.
On the charge of murder, you are sentenced to 23 years’ imprisonment. I fix a non‑parole period of 16 years and 4 months’ imprisonment.
I declare you have served 1072 days by way of presentence detention, not including today, and such period is reckoned as time already served under this sentence.
I make the forfeiture order sought by the prosecution.
APPENDIX
This appendix addresses why I did not find that Verdins was enlivened in this case. There is an unavoidable degree of overlap between what is said here, and what was said in the part of my reasons I delivered orally. For the avoidance of doubt, this appendix forms part of my sentencing reasons.
Introduction
In 2003, an offender fatally shot his former partner, L, twice in the chest with a pen pistol. He then drove along a freeway at speeds of up to 200 kmph. He drove his car into the rear of a vehicle being driven by a second victim, which burst into flames. The second victim died and L’s body was found in the offender’s car. The offender pleaded guilty to the murder of L and the manslaughter of the second victim. On his plea, it was submitted that he was suffering from a major depressive disorder. The opinion of Dr Watson‑Munro, forensic psychologist, was that the offender was suffering from a major psychological decompensation as a result of his inability to come to terms with the end of his relationship with L. This had been exacerbated by substance use. The sentencing judge found that the offender’s depression moderated the requirement for general deterrence and reduced his moral culpability. The offender was Mark Verdins.
The Court of Appeal found no error in the sentencing judge’s approach.[18] The Court reformulated the earlier Tsiaris[19] principles and set out the six ways that impaired mental functioning is relevant to sentencing (‘Verdins principles’).[20] The Court noted it is relevant in ‘at least’ those six ways; it may still be relevant in other ways.
[18] Verdins (2007) 16 VR 269, 277–278 [36]–[40].
[19]R v Tsiaras [1996] 1 VR 398 (‘Tsiaras’).
[20] Verdins (2007) 16 VR 269, 270 [2], 275 [26].
Prior to Verdins, a view prevailed that the sentencing considerations in Tsiaris were applicable only to cases of ‘serious psychiatric illness’ (Tsiaris itself concerned schizophrenia). The Court in Verdins stated:
The sentencing considerations identified in R v Tsiaras are not — and were not intended to be — applicable only to cases of “serious psychiatric illness”. One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from 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.[21]
The Court recognised that the phrase ‘mental disorder or abnormality’ may cover a wide variety of conditions.[22] The Court referred with approval to what Maxwell P said in R v Sebalj[23]:
What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender’s mental capacity at the time of the offence and/or at the time of sentence.[24]
[21]Ibid 271 [5].
[22]Ibid 271 [7].
[23][2006] VSCA 106.
[24]Ibid [21] (citation omitted), quoted with approval in Verdins.
The Court continued:
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.[25]
[25]Verdins (2007) 16 VR 269, 272 [13].
The applicability of the Verdins principles were further considered in O’Neill.[26] The following principles may be extracted from that decision:
[26] DPP v O’Neill (2015) 47 VR 395 (‘O’Neill’).
(a) Sentencing judges cannot apply a mechanistic approach that, because an offender is said to suffer from impaired mental functioning, the offender thus attracts the Verdins principles.
(b) Impaired mental functioning may reduce the offender’s moral culpability in any number of ways, including, without limitation, if it has the effect of impairing the offender’s ability to exercise appropriate judgment or make calm and rational choices, or if it makes the offender disinhibited, or if it obscures the offender’s intent to commit the offence.[27]
[27]Ibid 413 [69], quoting R v Howell (2007) 16 VR 349, 356 [20] (Nettle JA).
(c) In order for principles one, two, three or four to have application, there must be a connection between the impaired mental functioning and the offender’s moral culpability, or the need for general or specific deterrence. If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked to the offending’.[28]
(d) It is not sufficient that the offender suffer from a particular mental impairment. There must be proper, informed consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his offending, or of how the offender’s condition might make the full application of general deterrence inappropriate.[29]
(e) The burden is on the offender to establish these matters on the balance of probabilities. This normally requires cogent evidence in the form of an expert opinion.[30]
[28]Ibid 414 [74] (citations omitted).
[29]Ibid 410 [59].
[30]Ibid 414 [77].
Following O’Neill, there was a divergence of opinion as to whether the Verdins principles could apply to personality disorders. This was resolved in Brown v The Queen.[31] It is not necessary for these purposes to refer further to that decision, other than to note that the category of conditions which may attract the Verdins principles are not closed.
[31](2020) 62 VR 491.
The evidence of Dr Carroll
Dr Carroll diagnosed Mr Whyte with mild personality disorder, severe alcohol use disorder and recurrent major depressive disorder. In Dr Carroll’s opinion, alcohol use disorder is a psychiatric condition.
Based on the available information, Dr Carroll concluded, unsurprisingly, that Mr Whyte was probably heavily intoxicated at the time of the offence. Dr Carroll said that it was more likely than not that Mr Whyte was intoxicated to a degree that rendered him disinhibited, and disposed him to be more aggressive than would otherwise have been the case at the time of this offending. It is probable that his judgment and self‑control were impaired. Mr Whyte’s capacity for calm, rational decision making was also significantly impaired. Dr Carroll noted that based on Mr Whyte’s criminal history, he was not generally prone to violence. It was therefore Dr Carroll’s opinion that there was a realistic connection between Mr Whyte’s alcohol use disorder and the offending.
Dr Carroll said he would not describe alcohol use disorder as a mental illness, however it is a mental disorder. It causes suffering and impairment, and he would ‘absolutely’ describe it as a psychiatric condition. He said personally, he would not use the term mental illness to describe alcohol use disorder, but plenty of psychiatrists would.
In cross‑examination, Dr Carroll agreed that Mr Whyte was acting as a voluntary agent when he consumed alcohol. Dr Carroll said he was aware that the offending in question involved the violent stabbing of an individual with a knife. He was asked whether, as a general proposition, he would say that if a person has an alcohol use disorder, and is heavily intoxicated, and then commits a murder using a weapon, there would be a realistic connection between the alcohol use disorder and the offence of murder. Dr Carroll’s answer was somewhat disjointed as it was interrupted, but he answered that the issue of realistic connection is a matter for the court rather than the expert witness. He said from a psychiatric perspective, he considers there to be a realistic connection between Mr Whyte’s alcohol use and his offending. This was based upon the fact that alcohol has a number of effects, including disinhibition and impaired judgment. Dr Carroll was then asked, ‘so effectively it would mean, really, in every case we’ve got those factors combined, you would say in your opinion a realistic connection exists?’. Dr Carroll answered, ‘[f]rom a psychiatric perspective, yes.’
Dr Carroll agreed that alcohol intoxication, although a common concomitant of alcohol use disorder, is a different thing. A person may be heavily intoxicated but not suffer alcohol use disorder. Such a person may still be disinhibited, lack judgment and make poor choices. Dr Carroll was asked about the example where a highly intoxicated person is behaving belligerently, angrily and aggressively, but does not suffer from alcohol use disorder. He said that in such a situation he certainly would not use the term mental illness to describe such a person. However in his opinion, it is reasonable to say that there is a psychiatric condition because there is functional impairment.
Intoxication and the Verdins principles
At a basic level, most people would agree, unassisted by expert evidence, that an intoxicated person may behave differently to the way they would behave if they were not intoxicated. An intoxicated person may be more disinhibited. In a negative sense, they may be more aggressive, less reasonable, less rational, and more prone to overreact or misjudge a situation. Put simply, they may conduct themselves in a way that they would not if sober.
Intoxication is different to addiction. A person may be intoxicated by alcohol but not suffer from alcohol use disorder (commonly called alcohol addiction). Similarly, a person may suffer from alcohol use disorder but not be intoxicated, albeit a common symptom of alcohol use disorder is alcohol consumption.
Here, I accept that the accused suffers from alcohol use disorder. That disorder itself played no direct role in the offending. Rather — the argument went — the accused suffers from alcohol use disorder, which is a psychiatric disorder. A symptom of alcohol use disorder is alcohol intoxication. The accused was very intoxicated at the time he stabbed the victim. But for the accused suffering from alcohol use disorder, he would not have been intoxicated, and but for his intoxication, he would not have stabbed the victim. He was unable to make calm and rational choices. He was disinhibited and significantly more aggressive than he otherwise would have been. In this way, there is a ‘realistic connection’ between his psychiatric disorder and his offending sufficient to enliven Verdins and reduce his moral culpability.
A neat question arises as to whether a person with alcohol use disorder is truly capable of exercising free will when they choose to consume alcohol, but there was no cogent evidence before me that Mr Whyte was not in control of his choice to drink alcohol. Indeed, Dr Carroll’s evidence was that Mr Whyte was acting as a voluntary agent when he consumed alcohol on this occasion.
Labelling alcohol use disorder and alcohol intoxication as ‘psychiatric disorders’ does not, of itself, mean the Verdins principles are applicable. I accept that Mr Whyte’s alcohol use disorder may have affected his ability to exercise appropriate judgment as to whether and how much alcohol to consume, or make a rational choice about this. However, it is alcohol intoxication that causes clinically significant problematic behavioural or psychological changes, such as aggressive behaviour or impaired judgment.[32] As Dr Carroll stated in Brown, ‘the starting point is that diagnosis is not the key. Impairment is the key’.[33] Here, any relevant impairment resulted from intoxication.
[32]American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2022) 490, 497 (‘DSM‑5’).
[33]Brown (2020) 62 VR 491, 506 [52].
In my view, alcohol use disorder and alcohol intoxication are not forms of ‘mental impairment’ that are capable of attracting the Verdins principles and reducing an offender’s moral culpability. This is so notwithstanding Dr Carroll’s evidence that they are ‘psychiatric disorders’. Such an approach would ignore well established sentencing principles, and expand Verdins beyond its logical reach. It is worth recalling that the Verdins principles are, and should be regarded as, exceptional.[34] The approach urged by counsel for Mr Whyte would mean that a great number of intoxicated persons who committed a violent offence, or indeed any offence, could claim that their moral culpability is reduced because ‘but for’ their intoxication, they would not have acted the way they did and committed the crime.
[34]R v Vuadreu [2009] VSCA 262, [37].
Even if the analysis focuses on persons who are diagnosed with alcohol use disorder, rather than persons who are simply intoxicated, it remains my view that such a circumstance would not ordinarily attract the principles in Verdins. That is because it is still the intoxication that causes the impairment. I cannot rule out that there may be an exceptional case where the disorder may enliven Verdins, although it is difficult to see how this would occur absent comorbidity.[35]
[35]For example, bipolar disorders and schizophrenia are associated with a markedly increased rate of alcohol use disorder, as are several anxiety and depressive disorders: see DSM‑5, 496. See also Pato v The Queen [2011] VSCA 223, [28]–[32] (Hansen JJA, Harper JA agreeing at [35]), where the appellant suffered from alcoholism combined with severe depression and anger management problems. It was held the ‘proper application of Verdins’ reduced the appellant’s moral culpability and the need for general deterrence but only to a limited degree.
One difference between alcohol use disorder (alcohol addiction) and substance use disorder (drug addiction) is that alcohol is lawful. Treating it as mitigating would not conflict with attempts made through the criminal law to reduce drug trafficking and use, which has been considered a reason not to treat drug addiction as a routine mitigating circumstance when sentencing an offender.[36] However, that factor is only one of many reasons why intoxication is not usually regarded as mitigatory. It does not alter my conclusion as to the applicability of Verdins.
[36]R v Proom (2003) 138 A Crim R 478, 487 [47] (Doyle CJ). See also R v Henry (1999) 46 NSWLR 346, 386 [206] (Spigelman CJ).
Finally, even if alcohol use disorder was capable of enlivening Verdins, the evidence in this case does not satisfy me that limb one would have application. Mr Whyte inflicted 11 sharp force injuries to the deceased, including four stab wounds to the chest, in circumstances where the deceased presented no threat and was on the telephone trying to summon an ambulance. Dr Carroll’s statement that there is a ‘realistic connection’ between Mr Whyte’s condition of alcohol use disorder and this conduct is largely unexplained. As already noted, Dr Carroll seemed to rely on a type of ‘but for’ analysis: that is, but for Mr Whyte’s alcohol use disorder and resulting intoxication, he would not have been significantly more aggressive and murdered the deceased. However, Mr Whyte had been heavily intoxicated many times before. He had no real history of behaving violently, whether intoxicated or sober. It remains unexplained why, on this night, his intoxication caused him to commit such a brutal act. Mr Whyte’s intoxication did not obscure his capacity to form murderous intent. Statements such as his ability to make ‘calm, reasoned judgments’ was impaired, when carefully analysed, do not tell me a great deal about why there is any connection between Mr Whyte’s intoxication and this offending. As Dr Carroll recognised, the complete absence of a first‑person account from Mr Whyte makes it difficult to comprehensively address the issue of a possible connection between his psychiatric conditions and the offending. Mr Whyte has consistently said he does not remember what happened.
Alcohol intoxication and moral culpability
The general rule is that the effects of voluntarily consumed alcohol or drugs are not regarded as mitigating the seriousness of the offence,[37] and courts have generally held that drug or alcohol addiction, of itself, is not a mitigating factor.[38] Where it has been treated as a mitigating factor, it is not because it is considered a ‘mental impairment’ attracting the Verdins principles. Sentencing judges are frequently faced with a submission that the offender’s intoxication made him or her behave in a way that was ‘out of character’ and thus the offender’s moral culpability is reduced. This ‘out of character’ exception is acknowledged to exist but has almost never been applied.[39] In any event, the ‘out of character’ exception does not arise as a result of the application of the Verdins principles. In other cases, where an offender’s disadvantaged and troubled history has led to their addiction, this may attract some leniency through the application of the Bugmy principles. Again, in such a situation, the extent to which intoxication may be a factor in mitigation is not because it is considered a ‘mental impairment’ attracting the Verdins principles.
[37]R v Rosenberger (1994) 76 A Crim R 1; Damiani v Western Australia (2006) 165 A Crim R 358, 359 [2] (Roberts‑Smith JA); Hasan v The Queen (2010) 31 VR 28, 33–34 [20]–[22]. See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 299.
[38]R v Henry (1999) 46 NSWLR 346, 385 [197] (Spigelman CJ), 397–398 [273]–[274] (Wood CJ); R v Koumis (2008) 18 VR 434, 437 [53]; R v Proom (2003) 85 SASR 120, 130 [52] (Doyle CJ); Lam v The Queen [2015] NSWCCA 87, [49] (Schmidt J, Meagher JA and Bellew J agreeing at [1] and [103]). Whilst those cases were dealing with drug addiction, the principle has been applied to alcohol addiction; R v Killen (2005) 152 A Crim R 1, 5 [17] (Hidden, James and Bell JJ agreeing at [1] and [23]). See also Damiani v Western Australia (2006) 165 A Crim R 358, 359 [2] (Roberts‑Smith JA).
[39]Hasan v The Queen (2010) 31 VR 28, 33 [21], 37 [33].
An example of the application of the ‘out of character’ exception is found in Morrison v The Queen.[40] In that case, the appellant and a co‑offender, both highly intoxicated, viciously assaulted the deceased, whom they did not know. The killing was captured on CCTV. It appeared the motive for the attack was a mistaken belief on the part of the offenders that the deceased was a paedophile. In his record of interview, the appellant said he had no memory of the attack and expressed remorse. On the plea, counsel for the appellant placed considerable emphasis on the part alcohol played in the commission of the crime. The sentencing judge declined to regard intoxication as mitigatory. On appeal, Buchanan JA (Redlich JA and T Forrest AJA agreeing) stated:
I think that the intoxication of an offender is a relevant circumstance and is capable in a particular case of informing factors which relate to an appropriate sentence. It may, for example, bear upon the existence and degree of remorse. In the present case, the psychiatrist described the appellant as shocked by his actions, which he saw depicted on the film made by the surveillance camera. A sober offender could not make a like claim. The circumstances in which the crime was committed and the appellant’s reaction to it also affect the appellant’s prospects of rehabilitation. The sentencing judge was able to form the opinion that, with sobriety, the appellant’s rehabilitation was ‘achievable’. Further, I consider that the effect that the appellant’s intoxicated state had upon his judgement and self‑control moderates the need for denunciation by the Court. The appellant has been an alcoholic for more than 30 years, but has no convictions for any serious crimes of violence and there was no suggestion that he was inclined to be violent when intoxicated. The appellant’s wife and son stated in letters to the Court that the appellant was not violent or aggressive. While knowledge of the effects of alcohol consumption and the part it often plays in acts of violence may be taken to be well known, the appellant’s own experience would not have alerted him to the danger to which his drinking exposed others.[41]
[40][2012] VSCA 222.
[41]Ibid [20] (Buchanan JA) (citations omitted).
In Director of Public Prosecutions v Grant,[42] both the accused and the deceased were alcoholics and drank together on a regular basis. After an extended bout of drinking, the accused and the deceased — who also had a sexual relationship — engaged in sex. The accused then brutally killed the deceased in her own home. Osborne JA described the attack as ‘an extended one which progressed over time’ and of ‘unremitting ferocity and savagery’. The killing was not premeditated, and it was probable that the assault was somehow sparked by an irrational reaction to the sexual relationship and/or some alcohol fuelled delusion. Whatever the trigger, the accused was, as he told police, ‘filled with rage’. He pleaded guilty to murder. Dr Sullivan’s unchallenged opinion was that it was probable that the accused was so affected by alcohol at the time of the killing that he was unable to think clearly or make calm and rational choices, was disinhibited and had impaired judgment. Counsel for the accused did not rely on Verdins and no mention was made of that decision.
[42][2013] VSC 53.
Osborne JA considered the issue of the effects of alcohol upon the accused at the time of the killing. His Honour did not regard the offending when affected by alcohol as totally out of character. His Honour referred to R v Redenbach,[43] where the Court of Criminal Appeal said:
Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self‑induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence.[44]
[43](1991) 52 A Crim R 95
[44]Ibid [32], citing R v Redenbach (1991) 52 A Crim R 95, 99.
His Honour was prepared to accept that, ‘in one sense’, the accused’s alcohol use may be regarded as diminishing his moral culpability to ‘some extent’. His Honour noted that this was particularly so given that the offender’s alcoholism derived to some substantial degree from his childhood deprivations for which he was not to blame.[45] His Honour found that the offender’s alcoholism and the effects of alcohol on him at the time of the offending raised a complex set of considerations, but insofar as they bore on moral culpability he accepted they favoured a lesser penalty. Nonetheless, his Honour stated that any sentence must also reflect the need to deter alcohol fuelled violence generally, and the Court cannot send a message that killing whilst affected by alcohol is in itself less culpable than killing when an offender is not so affected. His Honour stated, ‘[t]o the contrary, violent behaviour when drunk must be unequivocally condemned’.[46]
[45]Ibid [37].
[46]Ibid [40], citing Pato v The Queen [2011] VSCA 223.
In my view, Mr Whyte’s alcoholism and intoxication raise not dissimilar issues. In one sense, his moral culpability may be considered lesser, as intoxication impaired his ability to think clearly or respond appropriately to whatever had occurred prior to him stabbing the deceased on the night in question. Mr Whyte can be heard in the background while the deceased is speaking with the triple zero operator, and he sounds aggressive and angry. I accept that alcohol intoxication probably heightened these emotions, reduced Mr Whyte’s capacity to exercise self-control and disinhibited him. However, killing whilst affected by alcohol is not intrinsically less serious than killing when sober. For example, a sober person might react irrationally to a perceived slight and commit a spontaneous and unplanned murder. The moral culpability of such a sober person would not be greater than that of an intoxicated person who behaved in a similar manner.
Conclusion
It remains the law that attaching a label to a condition does not, of itself, attract or preclude the application of the Verdins principles. Dr Carroll’s evidence that alcohol use disorder is both a ‘psychiatric condition’ and a ‘mental disorder’ does not provide an answer to the question of whether alcohol use disorder, and an offender’s resulting intoxication, will reduce their moral culpability through the application of the Verdins principles. For the reasons I have been through, the answer to that question must be no. Mr Whyte’s diagnosis of alcohol use disorder and his resulting intoxication are not, relevantly, a type of ‘mental impairment’ capable of enlivening the Verdins principles.
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