Author:Walvisch, Jamie
Position::CASE NOTE

CONTENTS I Introduction II The Current Law A The Verdins Principles B DPP (Vic) v O'Neill III Problems with the Current Law A An Unresolved Ambiguity in the Law: Which Personality Disorders Are Excluded? B The First Misunderstanding: Personality Disorders Do Not Affect Cognitive or Volitional Capacities C The Second Misunderstanding: Personality Disorders Do Not Constitute an Impairment of Mental Functioning D The Improper Influence of Culpability IV A Better Approach to Sentencing Offenders with Personality Disorders A Do Not Exclude Personality Disorders from the Scope of the Verdins Principles B Clearly Define the Nature of Each of the Verdins Principles C Require Cogent Expert Evidence V Conclusion I INTRODUCTION

Early in the morning of Wednesday 4 December 2013, Michael O'Neill and his partner of 16 years, Stuart Rattle, were in bed together in their South Yarra apartment. (1) Mr Rattle attempted to initiate a sexual encounter with Mr O'Neill, but was rejected. He called Mr O'Neill a 'frigid bitch, prompting him to leave the bedroom to go and make breakfast. Shortly afterwards Mr O'Neill returned, carrying a steel pan in his hand. Mr Rattle again called him a 'frigid bitch', and described him as selfish. This caused Mr O'Neill to 'snap'. He hit Mr Rattle on the head with the pan, and then strangled him with a dog lead he picked up from the floor.

For five days following the killing, Mr O'Neill pretended that Mr Rattle was still alive. He told friends and colleagues that he was unwell, made telephone calls impersonating him, and sent text messages on his behalf. On Sunday 8 December, he placed two lit candles near some curtains in their apartment, and went out. The apartment caught fire, and emergency services attended the scene, discovering Mr Rattle's charred corpse. Mr O'Neill initially claimed that the fire had started accidentally, and that Mr Rattle had died in the fire. However, after five hours of police questioning, he confessed to killing Mr Rattle and starting the fire. He pleaded guilty to one count of murder and one count of arson.

During his sentencing hearing, evidence was given by Mr O'Neill's treating psychologist, Dr Barth, that he met the DSM-5 criteria for 'Dependent Personality Disorder with Prominent Features of Narcissistic Personality Disorder'. (2) It was Dr Barths view that Mr O'Neill's 'significant personality pathology, particularly his intense interpersonal dependency combined with feelings of inadequacy and failure ... underpinned the devastating act of interpersonal aggression and violence which he perpetrated against Mr Rattle'. (3) Defence counsel argued that Mr O'Neill's crimes were mitigated by the existence of his personality disorder, and that a lesser sanction should be imposed. As the prosecution did not contest this, the sentencing judge moderated Mr O'Neill's sentence accordingly. (4)

On appeal, the Director of Public Prosecutions argued that moderating a sentence on the basis of a personality disorder is 'inappropriate and contrary to public policy', and that Mr O'Neill's sentence should not have been reduced. (5) The Victorian Court of Appeal agreed, holding that Mr O'Neill's personality disorder did not constitute an 'impairment of mental functioning', and so should not have been considered a mitigating factor. (6) In doing so, it significantly limited the scope of the Verdins principles: the principles that govern the sentencing of offenders with mental health problems in all Australian jurisdictions, (7) as well as in New Zealand. (8)

This article analyses the Court's approach to sentencing offenders with personality disorders. It is divided into three parts. Part II examines the current law, providing an overview of the Verdins and O'Neill decisions. Part III outlines several problems with the approach taken by the Court in O'Neill: it lacks clarity; it fundamentally misunderstands the nature of personality disorders; it wrongly holds that personality disorders do not constitute an 'impairment of mental functioning'; and it improperly relies on a definition of 'impaired mental functioning' that fails to take into account the diverse ways in which mental health conditions may be relevant to the sentencing process. Part IV suggests a different approach to sentencing offenders with personality disorders.

It is important to emphasise that the issues addressed in this article are not marginal ones. Although it is difficult to know the precise proportion of offenders who suffer from mental health problems, it is clear that it is exceedingly high. (9) This includes a significant number of individuals with personality disorders. For example, in their study of mental disorders amongst prisoners in New South Wales, Butler and colleagues found that 43% suffered from a personality disorder. (10) Of the 916 prisoners surveyed, 27% were diagnosed with a Cluster A personality disorder (paranoid, schizoid or schizotypal personality disorder), 31% with a Cluster B personality disorder (antisocial, borderline, histrionic or narcissistic personality disorder), and 29% with a Cluster C personality disorder (avoidant, dependent or obsessive-compulsive personality disorder). (11) Tye and Mullen found similarly high rates of personality disorders amongst female prisoners in Victoria: 33% were diagnosed with paranoid personality disorder, 26% with borderline personality disorder, 6% with histrionic personality disorder, 30% with antisocial personality disorder and 12% with narcissistic personality disorder. (12) In their systematic review of surveys from seven countries that reported on any personality disorder in prison populations between January 1966 and January 2001, Fazel and Danesh found even higher prevalence rates: 65% of the men and 42% of the women surveyed were diagnosed with such a disorder. (13) Given the high incidence of personality disorders amongst offenders, it is crucial to ensure that sentencers are provided with a clear, principled framework for sentencing offenders who suffer from such disorders.


A The Verdins Principles

In Verdins the Victorian Court of Appeal identified six ways in which an offender's mental health problems may be relevant to the sentencing process. (14) Such problems may:

1 reduce the offender's moral culpability, thereby affecting the punishment that is just in the circumstances and the importance of denunciation as a sentencing consideration;

2 influence the kind of sentence that should be imposed, or the conditions under which it should be served;

3 moderate or eliminate the need for general deterrence as a sentencing consideration;

4 moderate or eliminate the need for specific deterrence as a sentencing consideration;

5 make a sentence weigh more heavily on the offender than on a person in normal health, thereby affecting the determination of a proportionate sentence; or

6 create a serious risk of imprisonment having a significant adverse effect on the offender's mental health, suggesting the need to reduce the sanction. These principles have been held to apply to any proceeding in which the ruling body has disciplinary powers, (15) and 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'. (16)

Prior to Verdins, it had been suggested that only '[s]erious psychiatric illness[es]' needed to be taken into account by a sentencing judge. (17) However, in Verdins the Court made it clear that there is no need for an offender to suffer from a diagnosable mental illness, or for that condition to be of a particular level of gravity, for the relevant principles to apply. (18) The offender's mental health problems also do not need to be permanent. (19) 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'. (20) In particular, sentencing courts need to consider '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 leadup to it--or is likely to affect him/her in the future'. (21)

The Court intended that the phrase 'mental disorder or abnormality or an impairment of mental function' be interpreted broadly, to cover a wide range of conditions. (22) In subsequent cases it has been held to cover schizophrenia, depression, bipolar disorder, dysthymia, acquired brain injury, intellectual disability, postnatal depression and post-traumatic stress disorder. (23) In some cases, courts have taken the offender's mental health condition into account even without a specific diagnosis. For example, in R v Hill the judge noted that although there was 'difficulty in establishing a firm diagnosis' in relation to the offender's mental health, it was clear that the condition 'had an impact' on his behaviour. (24) He therefore concluded that the offender should 'not ... be sentenced as someone who functions well in the world'. (25)

However, the Court has made it clear that not all mental health conditions constitute a 'mental disorder or abnormality or an impairment of mental functioning'. (26) For example, it has been held that this phrase does not cover paedophilia, (27) emotional immaturity, (28) and impairments that arise from the ordinary pressures of daily life (such as work, financial and marital pressures). (29) Following the case of O'Neill, it now seems that it also does not cover personality disorders.

B DPP (Vic) v O'Neill

Prior to the O'Neill decision, there was a marked lack of clarity about whether personality disorders fell within the scope of the Verdins principles. In a number of cases judges simply accepted that the principles applied to such disorders, and/or moderated the offenders' sentences accordingly. (30) For example, in Stensholt v...

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