53. Verdins — Impaired Mental Functioning at Sentencing (Vic)¶
Scope and currency
Cheat sheet · R v Verdins (2007) 16 VR 269 · Sentencing Act 1991 (Vic) · mandatory-sentencing commencement dates not dated in source — verify
Starting point: Verdins is enlivened where the offender suffers an impairment of mental functioning — any temporary or permanent restriction on mental or intellectual functioning, or any mental disorder or abnormality — whether at the time of the offending or at the time of sentence. No diagnostic label, and no particular level of severity, is required; the label is not determinative. What matters is the nature, extent and effect of the impairment on this offender in these circumstances. Work the gates in order.
Is Verdins enlivened? Work the gates in order¶
GATE 1 Impairment of mental functioning?
Is there an impairment of mental functioning — at the time of the offending, at sentence, or both? May arise from a defined mental illness or from conditions such as PTSD, Asperger's, post-natal depression, schizophrenia or intellectual disability. Direct attention to how the particular condition affected the particular offender — not the diagnostic label (Brown v The Queen [2020] VSCA 212). → Yes: go to Gate 2. → No: Verdins is not enlivened.
GATE 2 Cogent evidence of the impairment?
Is there cogent evidence — normally an expert opinion — of the impairment and its nature, extent and effect at the relevant time (offence, sentence, or both)? What the judge needs is not a mere diagnostic label but a clear, well-founded expert opinion on the nature and extent of the impairment and its likely impact at the time of offending and/or in the foreseeable future (Brown v The Queen [2020] VSCA 212). → Yes: identify which limb(s) are engaged — go to Gate 3. → No: the principle relied on is not made out. The assessment must be undertaken with rigour (O'Neill).
GATE 3 Which limb(s) are engaged?
What does the impairment bear on? Route by what you are asking the court to do. → Culpability & deterrence (limbs 1, 3, 4): a connection to the offending is required — go to Gate 4. → Sentence type, hardship, mental-health risk (limbs 2, 5, 6): no offending-connection needed; grounded in the condition at or around sentence. See the six-limb table below.
GATE 4 Causal connection to the offending (culpability & deterrence limbs)
Did the impairment (existing at the time of the offending) connect to the offending? Establish a "realistic connection" with the offending; or that it "caused or contributed" to it; or that it is "causally linked" to it. → Connection shown: the impairment must have affected the offender's ability to appreciate the wrongfulness of the conduct, OR obscured the intent to commit the offence, OR impaired the ability to make calm and rational choices or to think clearly at the time of the offence — limbs 1, 3 and 4 are then open. → No connection: limbs 1, 3 and 4 are not enlivened; the hardship and mental-health-risk limbs (2, 5, 6) may still apply on the condition at sentence.
GATE 5 Mandatory-sentencing overlay — Category 1 / 2 offence?
Is the offence a Category 1 or Category 2 offence, or does a statutory-minimum non-parole period apply? If so, enlivening Verdins at common law is not enough. The offender must satisfy the stricter statutory "impaired mental functioning" test — s 10A (special reasons / statutory minimum) or, for a Category 2 offence, s 5(2H) — on the balance of probabilities. This is a significantly higher threshold than Verdins. → Statutory test (s 10A / s 5(2H)): prove impaired mental functioning as defined in s 10A(1) (mental illness under the Mental Health and Wellbeing Act 2022, intellectual disability, acquired brain injury, autism spectrum disorder or neurological impairment) that EITHER is causally linked to the offence and substantially and materially reduces culpability (ss 5(2H)©(i), 10A(2)©(i)) OR would make imprisonment substantially and materially more burdensome (ss 5(2H)©(ii), 10A(2)©(ii)). → Self-induced intoxication: the culpability limb cannot be relied on where the impaired mental functioning was substantially caused by self-induced intoxication (ss 5(2GC), 5(2HA), 10A(2A)). The question is whether the impairment — not the offending — was so caused; a genuine underlying condition is not excluded merely because the offender was also intoxicated (Dabaja v The King [2023] VSCA 209).
The six Verdins limbs at a glance¶
| Limb | What impaired mental functioning may do | Connection to offending? |
|---|---|---|
| 1 Culpability | Reduces moral culpability (distinct from legal responsibility); affects the punishment that is just; denunciation less likely to be a relevant objective. | Yes — at time of offending |
| 2 Kind of sentence | Bears on the type of sentence imposed and the conditions in which it is served. | No — flows from an engaged limb |
| 3 General deterrence | May be moderated or eliminated, depending on the nature and severity of the symptoms and the effect on mental capacity. | Yes — at time of offending |
| 4 Specific deterrence | Likewise may be moderated or eliminated on the same basis. | Yes — at time of offending |
| 5 Hardship | The condition at sentencing (or its foreseeable recurrence) may mean a sentence weighs more heavily than it would on a person in normal health. | No — condition at sentence |
| 6 Mental-health risk | A serious risk that imprisonment will have a significant adverse effect on the offender's mental health is a factor tending to mitigate punishment. | No — condition at sentence |
How Verdins applies to specific conditions¶
| Condition | Position | Authority |
|---|---|---|
| Intellectual disability | Likely impaired capacity to reason, so causation issues are less likely to arise (reasoning as to wrongfulness often obviously compromised). "Mild"/"moderate" labels do not assist — look at actual impact at offending and in the future. General deterrence typically moderated; specific deterrence may not be if imprisonment will still deter this offender. | Muldrock v The Queen (2011) 244 CLR 120; Leeder [2010] VSCA 98; Bx [2002] VSCA 126; DPP v Patterson [2009] VSCA 222 |
| Personality disorders | Engage Verdins like any other condition — a categorical exclusion cannot be sustained and contrary statements in O'Neill are no longer to be followed. Expert evidence rigorously scrutinised; usually engages only in a case of some severity. | Brown v The Queen [2020] VSCA 212 (5-judge bench), overruling DPP (Vic) v O'Neill (2015) 47 VR 395; [2015] VSCA 325 |
| Pathological gambling | Rarely mitigates to any significant degree: symptoms usually will not reduce culpability or moderate general deterrence; offending is typically protracted, sophisticated and planned; breach-of-trust gravity attracts an increased penalty, making such cases apt vehicles for general deterrence (Redlich JA's reasons). | R v Grossi [2008] VSCA 51 |
| Paedophilia / propensity to sexual offending | Little application. A propensity to commit sexual offences is generally treated as aggravating, given the paramount need to protect the community and the notorious difficulty of treatment. | DPP v EB [2008] VSCA 127 |
Overlays & practice points¶
• Rigour: the judge must give the issue rigorous attention — careful consideration whether the evidence establishes impaired mental capacity and which Verdins circumstances are engaged (O'Neill, applied in Brown).
• Raise it below: a Verdins point not argued before the sentencing court will not lightly be entertained on appeal (R v Romero).
• Plea vs mental-impairment defence: a Verdins plea (finite sentence, medical supervision) is often preferable to running mental impairment, which can lead to an indefinite supervision order — weigh medical supervision against Corrections supervision.
Mandatory sentencing — the statutory test is HIGHER than Verdins
For Category ½ offences and statutory-minimum non-parole periods, enlivening Verdins does not displace mandatory imprisonment: satisfy s 10A / s 5(2H). The self-induced-intoxication exclusions (ss 5(2GC), 5(2HA), 10A(2A)) bar the culpability limb where the impairment was substantially so caused (Dabaja v The King [2023] VSCA 209).
Currency watch¶
• Statutory test > Verdins — Category ½ and statutory-minimum matters are governed by s 10A / s 5(2H), not the common-law Verdins test alone.
• Self-induced intoxication — culpability limb excluded by ss 5(2GC), 5(2HA), 10A(2A); the Dabaja distinction turns on the impairment, not the offending.
• "materially" threshold — added to the statutory "substantially and materially" test after 2019 (per the source material).
• Commencement dates — not held in the source material; confirm the amending Acts and dates before relying. [gap]